The Wall Street Journalrecently ran a piece titled, “Attorney General Blocks Asylum Applications Based on Family Ties.” The article discusses Attorney General (AG) William Barr’s reversal of a Board of Immigration Appeals (BIA) decision which held that a Mexican national could seek asylum because his father was allegedly being targeted by Mexican organized crime.
The Journal notes that, “Federal law gives the attorney general the authority to overrule the immigration appeals board’s decisions.” But then, it quotes an Ohio immigration lawyer who characterizes AG Barr’s decision as “a surreptitious attempt to change the asylum law.” That characterization is absurd.
Asylum is available to individuals who can show persecution on the basis of race, religion, nationality, political opinion or membership in a particular social group. And the persecution must be perpetrated by the applicant’s home-state government or parties that it is unable, or unwilling, to control. That standard is intentionally very narrow. Asylum was never meant to be a general avenue of immigration, available to anyone who has been the victim of any unpleasant behavior by suspect characters in his country-of-citizenship.
Governments have a duty to protect their citizens but they can’t be everywhere, all the time, and protect every inhabitant from any kind of negative consequences. Simply put, we can’t give asylum to everyone who becomes the victim of a crime in a country where some of the police may be corrupt and some of the courts may be a bit dodgy.
But there is another problem with the mainstream media’s coverage of the Trump administration’s immigration policies. The press inevitably implies that Team Trump is attempting to modify immigration law without going through the legislative process. The coverage of former AG Sessions’ reversal of several other flawed asylum decisions is a perfect example.
In reality, though, it is interpreting and applying our immigration laws as they were written and enacted by Congress. Decisions such this one made by AG Barr, and those made by former AG Sessions, are actually reversing legally suspect measures that were implemented by courts and prior administrations that wanted to avoid enforcing immigration provisions that they disliked.
As the Congressional Research Service (CRS) noted in a January 2019 legal analysis, a small minority of courts have held that aliens who were subject to organized criminal violence may be eligible for asylum. But even a casual look at the opinions cited shows that these were cases of judges inappropriately legislating from the bench, unsupported by any reasonable interpretation of current asylum law.
More typically, says the CRS, the BIA and courts have held that, “aliens who fear gang violence do not qualify for asylum or withholding of removal, and have rejected particular social group claims that are broadly defined by the group members’ general resistance or vulnerability to gangs.”
So, far from being a surreptitious attempt to change asylum law, AG Barr’s precedential determination is a very public call for the BIA and the courts to stop the irrational expansion of asylum law without any legal basis for so doing. Either the mainstream media doesn’t understand immigration law well enough to comprehend that or it simply doesn’t care about telling the truth.