Barr's Power: Asylum Law Changes Examined

Attorney General William Barr has made several changes to asylum laws in the United States, including limiting family endangerment claims and stripping bond eligibility from asylum seekers. Barr's decision to overturn a 2005 ruling by the Board of Immigration Appeals (BIA) means that immigration judges can no longer grant bond to asylum seekers who enter the US without inspection at a port of entry but pass their threshold asylum screening interviews. This has led to concerns about the prolonged detention of asylum seekers and the separation from their families and communities. Barr has also ruled that immigrants fearing persecution due to threats against their family members are no longer eligible for asylum, arguing that recognizing families as particular social groups would include almost every alien. These changes have sparked legal challenges and criticism from advocates, who argue that Barr's declarations of power go against legal precedent and raise concerns about the fair treatment of asylum seekers.

Characteristics and Values of Barr's Changes to Asylum Laws

Barr's ruling that immigrants facing persecution due to threats against their family members are not eligible for asylum

Attorney General William Barr ruled that immigrants fearing persecution due to threats against their family members are no longer eligible for asylum. This ruling was made in the case of a Mexican man (identified as "L-E-A" in court documents) who sought asylum after his family was threatened because his father did not allow drug cartel dealers to use his store for business. The fear of such endangerment has traditionally been the basis for legally recognizable asylum claims.

Barr's decision effectively tightened a measure in the Immigration and Nationality Act, which states that a migrant can be granted asylum if they show they have been or will be persecuted because of "race, religion, nationality, membership in a particular social group, or political opinion." Barr argued that the Board of Immigration Appeals (BIA) had improperly decided the case, stating that the man's family was not a recognizable social group. He wrote that the term "particular social group" should not be interpreted so broadly as to include family members, as this would render almost every alien a member of such a group.

Barr's ruling has been criticized by immigrant advocates, who see it as the latest move by the Trump administration to restrict asylum. They argue that it goes against legal precedent and represents a significant declaration of power from the Attorney General. The American Civil Liberties Union and other groups have challenged the administration's new restrictions, and a federal judge in San Francisco has temporarily blocked the rule.

It is important to note that Barr's ruling does not disqualify all family-based social groups. He stated that an alien's family-based group could constitute a particular social group if it is shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor. However, the ruling sets a higher bar for asylum seekers to prove that their family situation qualifies as a particular social group, making it more difficult for them to obtain asylum on these grounds.

The Attorney General's decision to strip immigration judges of the authority to grant bond to asylum seekers

In April 2019, US Attorney General William Barr made a unilateral decision to overturn a 2005 ruling by the Board of Immigration Appeals, stripping immigration judges of the authority to grant bond to asylum seekers. This decision, known as Matter of M-S-, applies to asylum seekers who enter the US without inspection at official border crossings but pass their threshold asylum screening interviews.

The Attorney General's decision means that asylum seekers who fall into this category will be subject to detention without bond for the duration of their asylum proceedings, potentially being separated from their families and communities. This has been criticised as an attack on judicial independence and an attempt to further the administration's anti-immigrant agenda. The decision also goes against legal precedent and has been described as a "declaration of power" by the Attorney General.

The Department of Homeland Security (DHS) has been implicated in the decision, with the Attorney General noting in a footnote that the DHS intends to use this ruling to justify expanding its detention system. This is despite the fact that the DHS already has the ability to release asylum seekers on parole, which it has regularly refused to do. The decision effectively leaves the DHS as the sole arbiter of release for asylum seekers, which is likely to result in prolonged jailing and separation from loved ones.

The ruling is part of a pattern of the Attorney General using their direct control over immigration courts to deport immigrants and prevent them from obtaining legal relief. This includes limiting asylum claims based on family endangerment and undermining protections for victims of domestic and gang violence. The impact of these decisions could be far-reaching, with tens of thousands of people potentially affected and at risk of deportation or imprisonment.

The Biden Administration's proposal to allow asylum officers to reject a subset of asylum seekers earlier in the process

On May 9, 2024, the Department of Homeland Security announced a proposal to allow asylum officers to reject a subset of asylum seekers earlier in the process. This proposal would give more weight to the initial screening interviews conducted by an asylum officer after an individual has been taken into custody by an immigration official. The "credible fear" screening is an opaque step in the asylum process, where asylum seekers have no access to lawyers or the ability to present evidence. The proposal would make these interviews harder to pass, thus limiting the number of people who get a full hearing.

Currently, there are two types of screening interviews: a "credible fear interview" for those who would be eligible for asylum, and a "reasonable fear interview" for those who would be ineligible for asylum but might be eligible for lesser forms of protection. Under a 2023 regulation, most asylum seekers who enter the US between ports of entry are subject to a higher standard in their credible fear interviews. The Biden administration's proposal affects each of these processes.

The proposal has been criticized for potentially decreasing the number of interviews officers can conduct and increasing the risk of erroneous denials of asylum seekers. It may also make the asylum process more inconsistent and inefficient. Critics argue that the proposal represents a step in the wrong direction and could exacerbate existing inequities in asylum processing.

The Biden administration has also implemented other policies that affect asylum seekers, such as suspending asylum processing at the US border and limiting asylum processing once encounters with migrants between ports of entry reach 2,500 per day. These policies have been met with lawsuits from immigrant advocacy groups, who argue that they violate existing federal immigration law and set asylum seekers up to fail.

The Department of Justice and the Department of Homeland Security's proposal to amend regulations governing the bars to asylum eligibility

In 2019, the Department of Justice and the Department of Homeland Security (DHS) issued a notice of proposed rulemaking (NPRM) to amend their regulations and restrict certain criminal aliens from obtaining asylum in the United States. The proposed rule aimed to limit eligibility for asylum for aliens who engaged in specified categories of criminal behaviour, including terrorism and national security threats. This rule would also remove the requirement to reconsider discretionary denials of asylum applications, streamlining the process and reducing costs.

The NPRM also proposed changes to the regulations governing credible fear determinations. Under the new rules, individuals found to have a credible fear would have their claims for asylum, withholding of removal, or protection under the Convention Against Torture (CAT) adjudicated by an immigration judge in streamlined proceedings, rather than in immigration court. This would allow the Departments to separate baseless claims from meritorious ones more effectively and ensure that groundless claims do not delay or divert resources.

The Attorney General's decision in Matter of M-S- in 2019 stripped immigration judges of the authority to grant bond to asylum seekers who entered the United States without inspection at a port of entry but passed their threshold asylum screening interviews. This decision has been criticised as a "declaration of power" by the Attorney General, and it has been suggested that it will result in the prolonged jailing of asylum seekers.

The Department of Homeland Security has also announced proposed rules to enhance border security and streamline asylum processing. The proposed rule would allow Asylum Officers to consider statutory bars to asylum during the initial credible fear screening and issue denial of claims within days if an individual is barred from asylum due to terrorism, national security, or criminal activity. This would enable DHS to expeditiously remove individuals who pose a threat to the United States.

AG Garland's opinion in Matter of A-C-A-A-, vacating AG Barr's opinion and directing a return to longstanding review processes

On July 26, 2021, Attorney General Merrick Garland issued an opinion in Matter of A-C-A-A--, vacating in its entirety former Attorney General William Barr's September 2020 opinion. Garland's opinion directs immigration judges and the Board of Immigration Appeals (BIA) to return to the "longstanding review processes" that "A-C-A-A- I apparently prohibited," including "case-by-case discretion to rely on immigration court stipulations."

Barr's September 2020 opinion had ruled that immigrants fearing persecution due to threats against their family members are no longer eligible for asylum. Under U.S. law, an asylum seeker must prove a well-founded fear of persecution based on religion, race, nationality, political opinion, or membership in a specific social group. Barr's decision reversed a ruling by the BIA that recognised the Mexican man's family as a "particular social group." Barr argued that categorically recognising families as particular social groups would render virtually every alien a member of such a group, which was not the intent of Congress.

Barr's opinion faced legal challenges and criticism. The American Civil Liberties Union and other groups challenged the new restrictions, and a federal judge in San Francisco temporarily blocked the rule. Advocates also argued that Barr's decision ran against legal precedent. The American Immigration Lawyers Association, Human Rights First, and other organisations criticised Barr's decision to strip bond eligibility from asylum seekers in Matter of M-S-. This decision left the Department of Homeland Security (DHS) as the sole arbiter of release for asylum seekers, resulting in prolonged detention and separation from their loved ones.

Garland's opinion in Matter of A-C-A-A- vacates Barr's opinion and restores the longstanding review processes, allowing immigration judges and the BIA to exercise case-by-case discretion in asylum claims. This action reflects a shift away from the restrictive immigration policies of the Trump administration.

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