Note that Sessions did not hold that an asylum claim could never be based on the harm resulting from either criminal activity or domestic violence, a fine point that most casual observers (including the vast majority of the press) overlooks. Second, he overruled a prior BIA precedent decision in Matter of A-R-C-G-, which had to do with victims of domestic violence as members of particular social groups. First, he held that victims of private criminal activity were generally not members of cognizable “particular social groups” for purposes of relief. In so doing, he made two crucial determinations. In Matter of A-B-, Sessions largely relied on those BIA precedents to provide bright-line rules for immigration judges and asylum officers to follow in assessing whether a proposed social group was or was not cognizable for asylum protection. Ultimately, as I explained in a June 2018 post, the Board of Immigration Appeals (BIA) crafted a calculus to differentiate between various social groups to determine which ones were appropriate (cognizable) for asylum protection. When the Conference of Plenipotentiaries was considering the Convention in 1951, the phrase "membership of a particular social group" was added to this definition as an "afterthought." The Swedish representative proposed this language, explaining only that it was needed because "experience had shown that certain refugees had been persecuted because they belonged to particular social groups," and the proposal was adopted. Virtually any set including more than one person could be described as a ‘particular social group.’”Īlito went on to explain that the sparse legislative history of the provision was no help, and the international conventions and instruments from which that provision arose did not shed much light either. Then, there is the fifth ground for asylum: “membership in a particular social group”, an exception that could well swallow the rule that asylum is supposed to be circumscribed, if it is interpreted too expansively.Īs then-Judge (now Justice) Samuel Alito explained in a 1993 decision: “Read in its broadest literal sense, the phrase is almost completely open ended. What constitutes a “political opinion”? Running for office? Belonging to a political party? Putting a sign in front of your house? Voting a certain way? Complaining about land-distribution laws? Tacit support for law and order? There is a wide spectrum of activities that could be covered, and whether they are is generally a judgment call. “Political opinion” is a little broader, but still somewhat limited. Three of the five factors for asylum relief (race, religion, and nationality) are pretty straightforward you are a national of Ireland, for example, or you are not. Note the use of the phrase “is supposed to” above.
asylum law does not provide protection for every harm or bad thing that has happened or may happen to every national of every other foreign country. To be granted asylum, an alien present in the United States (usually, but not always, illegally) must prove past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.Ī grant of asylum allows an alien to live and work in the United States, and to petition for other relatives to come to this country, and places the alien on a path to a green card and ultimately citizenship.Īs the foregoing shows, asylum protection is supposed to be circumscribed. Granting everybody relief is one way to bring down the immigration court backlog, which has now reached 1.337 million cases. That order is not a terribly big surprise, but it is a harbinger of the Biden administration’s plans to significantly expand asylum protection. Attorney General (AG) Merrick Garland issued an order this week vacating AG Jeff Sessions’ June 2018 decision in Matter of A-B-, as well as a later decision in the case (with the same caption) issued in January by Acting AG Jeffrey Rosen.
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