With another caravan heading North, a closer look at our asylum law

A spokesman for Guatemala’s official immigration agency told CNN that a caravan of up to 8,000 U.S.-bound migrants entered Guatemala from Honduras. According to CNN’s report, they are fleeing a life of poverty and violence.

Thousands were turned back — but will the migrants who succeed in completing their journey be eligible for asylum in the United States?

Not the ones who are just fleeing poverty.

Violence is a possibility, but claims based on violence have to meet technical requirements that are difficult to understand — and they place time demands on an immigration court that is struggling with a backlog crisis.

Applicants have to establish that they are “refugees” as that term is defined by the Immigration and Nationality Act (INA). This requires a showing that they are unable or unwilling to return to their own countries because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

This definition severely limits asylum eligibility, particularly when the alleged persecutor is not the government, which is the case with gang violence, domestic violence, and most crime-based claims.

Former Attorney General Jeff Sessions explained the requirements for such persecution claims in his decision for “Matter of A-B-,” but people who support asylum seekers rejected his explanations with hostile comments about his intentions.

Bea Bischoff, a civil rights and immigration attorney, wrote in Slate that Sessions was using his authority to certify cases to himself for review to shut off asylum eligibility for vulnerable women.

Michelle Lapointe, at the time an attorney with the Southern Poverty Law Center and now at the National Immigration Law Center, called it a “cruel and heartless decision” that will “condemn tens of thousands of men, women and children to death.”

House Speaker Nancy Pelosi (D-Calif.) characterized the decision as “heartless and inhumane.” 

Their hostility towards Sessions may have been misplaced. Rightly or wrongly, the explanations in “Matter of A-B-” were based on judicial decisions that have interpreted such persecution claims. And he probably had little, if anything, to do with writing the decision. 

The Justice Department’s Office of Legal Counsel drafts the AG’s legal opinions in addition to reviewing all of the orders and regulations that require his approval.

The Office of Legal Counsel also provides advice to the White House, the Executive Branch agencies, and other Justice Department components on legal issues of particular complexity and importance.

It may be difficult for President Joseph Biden to change the AG asylum decisions without breaking his promise to make the Justice Department independent. In the absence of political pressure from the White House, the Office of Legal Counsel is not likely to reach different conclusions if it revisits those decisions.

New AG decision on non-government actors

On Jan. 14, 2021, Acting AG Jeffrey A. Rosen revisited “Matter of A-B-” and issued a decision that provides additional guidance on asylum claims based on violence or the threat of violence from non-government actors.

An asylum applicant must base his persecution claim on a well-founded fear of persecution by the government or by persons or an organization that the government is unable or unwilling to control.

In discussing this standard, Sessions had stated that an applicant must show that the government condoned or will condone the private actions or demonstrated a complete helplessness to protect the victims.

According to Rosen, the “complete helplessness” language and the “unable or unwilling” standard are interchangeable formulations.

The concept of “persecution” is premised on a breach of a government’s duty to protect its citizens, and proving that a government has failed to prevent violence or threats in particular cases or that there are high crime rates in the applicant’s country does not establish a breach of that duty.

In 2019, there were more than 2 million serious violent crimes in the United States and more than 1 million incidents of domestic violence.

Moreover, establishing a “local” government’s unwillingness or inability to prevent persecution is not a basis for an asylum claim if the applicant can avoid persecution by living somewhere else.

Nexus

An asylum applicant must also show a nexus between the alleged persecution and his race, religion, nationality, membership in a particular social group, or political opinion.

This requires the applicant to establish that the persecutor knew or believed that the applicant had one of these protected characteristics, and that this knowledge or belief motivated the persecutor’s harmful actions.

When the alleged persecutor has mixed motives, the characteristic must be “at least one central reason for persecuting the applicant.”

For instance, in “Matter of L-E-A-” a cartel targeted the asylum applicant because it wanted to pressure his father into letting them use his store to sell drugs. The applicant claimed that this was persecution on account of membership in a particular social group (his father’s family).

Although the applicant would not have been threatened “but for” the fact that he was a member of his father’s family, his status as a member of his father’s family was “incidental” to the persecutor’s motivation for making the threat, which was to pressure the father into letting them use his store to sell drugs, not a “central reason” for it.

Accordingly, his application was denied.

The Fourth Circuit has held that the but for motive is sufficient to establish the required nexus.

It can take a lot of time to adjudicate persecution claims based on domestic or gang violence, and the backlog crisis is putting pressure on the immigration judges to move cases quickly.  The immigration court started 2021 with a backlog of 1,290,766 cases.

This makes it difficult to provide due process for aliens with applications that can’t be adjudicated quickly, and the pressure could get much worse if Biden keeps his campaign promise to rescind President Donald Trump’s border security measures and that results in a big surge in asylum seekers.

Biden has said that he probably needs six months to prepare for processing such a surge.

But according to TRAC Immigration, even if Biden halted immigration enforcement entirely, it would take more than his entire first term in office to eliminate the existing court backlog.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.