Garland withdraws asylum limits for domestic abuse victims

Attorney general reverses two Trump-era asylum policies issued by predecessors Sessions and Barr

Merrick Garland, as he headed to his Senate Judiciary Committee confirmation hearing Feb. 22.  (Tom Williams/CQ Roll Call file photo)
Merrick Garland, as he headed to his Senate Judiciary Committee confirmation hearing Feb. 22. (Tom Williams/CQ Roll Call file photo)
Posted June 16, 2021 at 5:59pm

Attorney General Merrick B. Garland on Wednesday rescinded two Trump-era policies that limited asylum eligibility for domestic violence survivors and others, following mounting calls from Democratic lawmakers and immigrant advocates.

The two decisions, issued by former Attorneys General Jeff Sessions and William Barr, made it harder for asylum-seekers fleeing violence by private actors, including domestic partners and gang members, and those persecuted due to family ties to qualify for protection in the U.S.

In the first, known as Matter of A-B-, Sessions concluded that migrants fleeing persecution at the hands of private actors must show their home country’s government was not only unwilling to intervene, but that it condoned those actions, or showed a “complete helplessness” to protect them. 

The second decision, titled Matter of L-E-A- and issued a year later by Barr, narrowed asylum eligibility for those who claimed their persecutors were motivated to threaten or harm them because of their familial ties. 

An applicant’s family unit will not count as a qualifying social group on which to base an asylum claim “unless it has been shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor,” Barr said. 

Garland, who was confirmed as attorney general in March, vacated the core holdings of both decisions without establishing new asylum policy himself. 

Sessions’ decision tried to answer “complex and important questions” of asylum eligibility “without the benefit of additional briefing or other public input,” Garland said in his decision. 

“I have concluded that the issues should instead be left to the forthcoming rulemaking, where they can be resolved with the benefit of a full record and public comment,” he wrote. 

Garland similarly vacated Barr’s decision on whether nuclear families can count as a “particular social group” on which to base an asylum claim “pending completion of the ongoing rulemaking process” to finalize a new regulation defining the term. 

Wendy Young, president of Kids in Need of Defense, which represents the interest of unaccompanied migrant children, praised Garland’s decisions. 

“Restoring the recognition of asylum claims based on persecution due to family relationships and persecution by non-state actors, including gang-related and sexual and gender-based protection claims, is instrumental in the protection of children, many of whom fled their home countries in Central America to seek safety from these types of violence,” she said in a statement. 

Karen Musalo, the founding director of the Center for Gender & Refugee Studies, said in an interview that the rescissions should help future asylum-seekers, as well as those with pending cases.

She said she expects the Department of Justice to issue a memo on how the rescissions will impact current cases. 

“This couldn't come a minute too soon,” Musalo said. “We’re very heartened that those who are still to apply and those whose cases are still in the system will have the benefit of removing this prejudicial prejudging of their cases, so their cases can be decided fairly.” 

The withdrawal of the two decisions follows President Joe Biden’s February executive order calling on Garland and Homeland Security Secretary Alejandro Mayorkas to issue policies governing the criteria for asylum-seekers to be considered in a “particular social group” within 270 days, or by the end of October. 

That executive order also asked the cabinet officials to “conduct a comprehensive examination” of current policies “to evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards.”

Advocates have pushed Garland for months to withdraw the two immigration decisions, which he can do unilaterally as attorney general. 

Attorneys general may refer to themselves cases at the Board of Immigration Appeals, the immigration courts’ appellate board, and establish binding precedent — an authority former President Donald Trump’s attorneys general wielded frequently. 

Last year, Sens. Dianne Feinstein, D-Calif., and Richard Blumenthal, D-Conn., and Rep. Nanette Barragán, D-Calif., led dozens of Democratic colleagues in both chambers in calling on Trump administration officials to reverse numerous asylum restrictions, including Matter of A-B- and Matter of L-E-A-.

Calls to rescind the decisions ramped up after Biden took office. In April, Nancy Lemon, legal director of the Family Violence Appellate Project, told reporters the immigration decisions were “not only an affront to our asylum system,” but “also to women’s rights more broadly.”

Last month, Feinstein wrote Garland on her own, urging him to vacate the decisions and “bring our asylum system back into alignment with the law and the values informing it.”

In a statement following the rescissions Wednesday, Feinstein said Garland's decisions “reaffirm that core American value and our commitment to helping those fleeing persecution.”