Biden DOJ Tosses Trump-Era Asylum Polices in Return to Status Quo
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DOJ Withdraws Two Key Trump-Era Policies that Gutted the Asylum Process for Victims of Domestic and Gang Violence

Merrick Garland holds a piece of paper while standing

U.S. Attorney General Merrick Garland vacated two major immigration cases on Wednesday in a move that could make it much easier for asylum seekers fleeing gangs and domestic violence.

The two interim decisions will undo key Trump-era immigration policies that were adopted by then-Attorneys General Jeff Sessions in the summer of 2018 and Bill Barr in the summer of 2019. Those orders severely hampered the ability of asylum seekers, Central Americans in particular, to seek protection in the United States.

In Matter of A-B, the Trump administration effectively discounted and rejected asylum claims from “victims of private criminal activity” and remanded a previous ruling back to a trial judge. The case itself concerned a woman from El Salvador who won her asylum claim based on severe domestic violence experienced in her home country.

In arguing the case, the Trump administration upended years of immigration law precedent by claiming that victims of domestic abuse do not qualify as members of a “particular social group,” a legal term of art that is necessary for a valid asylum claim under federal law.

The term has been interpreted under an open policy framework used by the Bureau of Immigration Appeals (BIA) since 1985 that holds “persecution” can be inflicted either by a government or by non-governmental actor if the relevant government is “unable or unwilling to control” the violent persecution in any given situation.

Garland’s first order takes stock of the resulting litigation:

Portions of the discussion in A-B- I were framed as a restatement and application of existing Board precedent. But the opinion begins with a broad statement that “victims of private criminal activity” will not qualify for asylum except perhaps in “exceptional circumstances.” That broad language could be read to create a strong presumption against asylum claims based on private conduct. As a result, A-B- I threatens to create confusion and discourage careful case-by-case adjudication of asylum claims.

In Matter of L-E-A, the Trump administration took its attack on the BIA’s longstanding interpretations of federal law even further. The case concerned a Mexican national who won his asylum claim by arguing that his nuclear family qualified as a “particular social group” after they were threatened by a cartel with collective punishment.

Once again, during the ensuing litigation, the Trump administration knowingly argued for a drastic departure from case law and precedent developed by federal appellate courts dating back several decades.

Both cases have now been vacated and those cases are over; the asylum seekers in each instance are now well-situated to win their claims. Garland also instructed immigration judges and the BIA to no longer rely upon any of the developments in either case “when adjudicating pending and future cases.”

“Rescinding these cruel decisions is the first critical step to returning to our humanitarian obligations,” Kate Melloy Goettel, legal director of litigation at the American Immigration Council said in a statement. “We urge the Biden administration to adopt rules that reflect the purpose of our asylum laws—to protect refugees fleeing persecution.”

“Amid four years of harmful, discriminatory, and racist asylum policies, Matter of A-B- and L-E-A- were among the most egregious policies in terms of their harmful impact,” she added. “The Trump administration’s attempt to curtail asylum claims based on gender-based violence, gang violence, and family membership reflected the administration’s focus on demonizing Central American asylum seekers and shutting our nation’s doors to those in need of protection.”

Garland’s decision to toss those cases does not create any new standards, however, and simply returns the asylum process viz. domestic and gang violence back to the pre-Trump status quo.

“Importantly, A.G. Garland does not set any new asylum law through his decisions in A-B- and L-E-A-‘s cases,” Aaron Reichlin-Melnick, AIC policy counsel explained via Twitter. “Instead, he just vacated the decisions in favor of future rulemaking that they’ve suggested will come in the fall, requiring judges to go back to the pre-Trump precedent.”

The vacaturs note that President Joe Biden recently directed the DOJ to work with the Department of Homeland Security to come up with federal regulations that will clear up “the circumstances in which a person should be considered a member of a ‘particular social group'” for purposes of asylum applications.

“I have determined that the pending rulemaking specifically addressing the meaning of ‘particular social group’ is the preferable administrative process for considering these issues,” Garland wrote in the second directive.

In other words, the Biden administration is working on establishing a regulatory approach that won’t give much as deference to immigration judges in the future–and which will be theoretically less vulnerable to gamesmanship by those intent on preemptively (and retrospectively) frustrating vast swathes of asylum claims.

Notably, Assistant Attorney General Vanita Gupta signaled that DOJ is likely to seek remands in numerous cases that relied upon the Sessions-Barr-Trump approach; a welcome state of affairs to asylum seekers who had their claims clogged up, rejected or reversed by the legal equivalent of brute force.

“Both Matter of A-B- and L-E-A- were poorly worded, legally imprecise opinions which purported to prejudge thousands of asylum cases entitled to individualized consideration,” attorney and immigration law specialist Jeremy McKinney tweeted. “I’m glad they are gone.”

[Image via Brendan Smialowski/AFP/Getty Images]

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