Department of Justice Vacates Two Important Asylum Decisions

FAIR Take | June 2021

The Department of Justice, led by Attorney General Merrick Garland, recently ended two asylum decisions that limited the ability of aliens to use the asylum system for the purpose of entering the United States.

Garland’s decision will undoubtedly expand the definition of what it means to belong to a “particular social group” for the purposes of asylum protection – greatly increasing the number of aliens entering the U.S. through the process. This decision will also add to the growing list of pull factors attracting illegal aliens to the Southwest border.

In order to win asylum, seekers have to prove they’ve suffered or fear persecution based on their race, religion, nationality, political opinion, or membership in a particular social group. In Matter of A-B-, former Attorney General Jeff Sessions overruled a previous court decision that recognized a certain category of domestic violence survivors as eligible for asylum based on their membership in a particular social group. Sessions and other observers noted that fearing domestic violence in their home country – while certainly deserving sympathy — did not constitute an appropriate qualifier for asylum protections.

In Matter of L-E-A-, former attorney general William Barr (who succeeded Sessions) reversed a Board of Immigration Appeals ruling in a case in which it found that members of an immediate family may constitute a particular social group under asylum law.

In vacating these two decisions, Garland is not setting new standards for asylum. Instead, he is setting the stage for a Biden administration priority: redefining what it means to be a member of a particular social group. Unlike religion, nationality, race, or political opinion, “social group” does not have an easily agreed-upon definition. Recently, some immigration judges interpreted this as a catch-all category. Specifically, immigration judges ruled that people afraid of neighborhood crime or gang activity constituted a “social group” – a nonsensical determination that naturally leads itself to include anyone and everyone.

This fall, the Biden administration plans to issue new regulations formally expanding the definition of what it means to belong to a “social group.” This is going to lead to even more illegal immigration as the Biden administration likely will expand the definition to the point that it is meaningless and includes anyone. 

FAIR has long supported granting protection to those who truly fit the traditional definition of asylum: people whose governments persecute them because of their religion, political beliefs, race, or nationality. Only this will protect the sanctity of our immigration system and ensure that we can offer protection to those who actually deserve it, rather than those who are simply migrating for economic reasons using our asylum process – currently the path of least resistance for illegal aliens.