U.S. must set clear, sensible asylum rules

Last Wednesday, the Biden Justice Department eased the Trump Justice Department’s interpretation of asylum law. Contemporaneously, we are experiencing the greatest number of illegal entries into the United States in the last twenty years. These two events are related. The vast majority of those entering illegally claim asylum as soon as they are taken into custody. American law then entitles them to a hearing on their asylum claim and to be free, in America, pending the hearing.

The asylum category has no limit in American law. There is only one other category without an overall limit: parents, spouses, and minor children of US citizens.  Immigration otherwise is subject to an annual limit set for green cards issued to workers needed in particular industries, a lottery for residents of countries that haven’t sent many immigrants in recent years, and refugees from natural disasters and wars around the globe.

In interpreting the words of America’s asylum laws, Judge J. Harvie Wilkinson, a U.S. Court of Appeals judge, observed in 2017, “The asylum statute is not a general hardship statute. It was not at all drafted in that way.” Yet, under the interpretation to which President Biden has reverted, the asylum category had come close to that.  The standard adopted in the Refugee Act of 1980 covers persons with a well-founded fear of persecution on the basis of “race, religion, nationality, membership in a particular social group, or political opinion.”

The statute gives no further guidance on what “particular social group” means. Instead, Congress delegated authority to the Department of Justice to issue its own interpretations. These have changed over time based on presidential approaches to immigration. By the end of the Obama administration, the phrase had been expanded to cover victims of gang violence and abusive family situations, though several federal courts had overturned interpretations as broad as “all married women in Guatemala who are unable to leave their relationships.”

The 1980 law was based on language in UN resolutions on asylum. The federal courts that have narrowed the category observed that the immediately surrounding words, “race,” “religion,” “nationality,” and “political opinion,” suggested a stricter reading for “particular social group,” one more related to the traditional role of asylum for people fleeing persecution by a government. The interpretations by more immigrant-friendly administrations had found the government requirement was met when a foreign government was unable or unwilling to protect its citizens—a much easier standard than proving that the government itself had participated in the persecution from which the person seeking asylum was fleeing.

“[A]sylum was intended to protect specific segments of the population who are marginalized or subjected to social stigma and prejudice. … But to broaden the statutory grounds for relief from those conditions must by definition be a congressional rather than a judicial enterprise,” Judge Wilkinson opined.

Congress should reassert its responsibility of deciding how many immigrants our country wants to admit overall, rather than allowing different administrations to twist the meaning of “particular social group” so that immigrants can be made to fit into or be excluded from that limitless category.

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