Friday, December 9, 2022 | Back issues
Courthouse News Service Courthouse News Service

Threats to Family Not Enough for Asylum, Sparking Backlash

Immigration advocates and lawyers said they are gearing up for protracted legal battle after U.S. Attorney General William Barr denied asylum to the son of man whose store was targeted by a Mexican drug cartel.

WASHINGTON (CN) - Immigration advocates and lawyers said they are gearing up for protracted legal battle after U.S. Attorney General William Barr denied asylum to the son of man whose store was targeted by a Mexican drug cartel.

Citing Barr's finding that immediate family does not qualify as a “social group” eligible for protection under the 1980 Refugee Act, attorney Bradley Jenkins said he could draw a “straight line” from Barr’s ruling to a decision last summer where then-Attorney General Jeff Sessions excluded domestic and gang violence from the list of legitimate asylum claims.

To protect their identities, asylum seekers are referred to in Justice Department decisions only by their initials. Barr on Monday denied relief to L.E.A., but last year it was A.B. who failed to win asylum from Sessions.

As with last year’s ruling against A.B., Jenkins said the decision against L.E.A. represents a policy shift amid procedural steps taken by the government, including the remain-in-Mexico policy and this month’s effective ban on asylum seekers from Central America.

In both, “the attorney general has claimed to say, ‘this kind of case that we don’t like is generally going to fail, and we don’t think that’s a sort of reasoning that’s going to hold up,’” said Jenkins, an attorney for L.E.A. at the Catholic Legal Immigration Network.

With its passage of the Refugee Act in 1980, Congress codified what the U.S. had agreed to several decades earlier in international treaties, defining a refugee as “any person who is outside of his country of nationality … who is unable or unwilling to return to such country because of persecution or a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group."

In the intervening years, the definition of the somewhat vague “particular social group” has come before courts repeatedly.

“Barr’s decision ignores decades of unanimous precedent and, in attacking what was a practically unassailable principle of asylum law, exposes the administration’s determination to eliminate asylum and rewrite the law by executive fiat,” said Anna Cabot, a senior staff attorney at the Center for Gender and Refugee Studies who appeared as a friend of the court in L.E.A.’s case.

Barr intends for the ruling to set a precedent, so Jenkins said he’s expecting a fight as agencies try implementation “in the coming days” and immigration advocacy groups battle to block it.

“We remain cautiously optimistic that the broad brushes made by the attorney general yesterday are going to be overturned in the courts of appeals,” Jenkins said in a phone interview Tuesday.

In his bid for asylum, L.E.A. made an unsuccessful push to show that Barr’s prior statements on issues of asylum and immigration made him too biased to rule objectively.

Barr disagreed, saying he had made no public statements about L.E.A.’s case and had no personal interest in the case’s outcome. 

L.E.A. first entered the U.S. outside a legal port of entry in 1998 but was deported in May 2011 after a DUI conviction. Back in Mexico City, where L.E.A.’s father owns a neighborhood general store, L.E.A. said the drug cartel La Familia Michoacana came after him when his father refused to let them sell its drugs out of his store.

In addition to getting shot at in the street, L.E.A. said he faced an attempted kidnapping, after which he fled north to Tijuana.

When border agents apprehended him attempting to cross again into the U.S., L.E.A. claimed he was entitled to asylum in part because his membership in the social group that was “the immediate family of his father” put his life in danger.

Barr disagreed. 

“The respondent did not show that anyone, other than perhaps the cartel, viewed the respondent’s family to be distinct in Mexican society,” Barr wrote. “If cartels or other criminals created a cognizable family social group every time they victimized someone, then the social distinction requirement would be effectively eliminated.”

Barr also highlighted the finding by the Board of Immigration Appeals hat the cartel approached L.E.A. “because he was in a position to provide access to the store, not because of his family membership.”

“The fact that a criminal group — such as a drug cartel, gang, or guerrilla force — targets a group of people does not, standing alone, transform those people into a particular social group,” Barr wrote.

In a statement Tuesday, the Center for Gender and Refugee Studies called the decision “a shameful attempt to eliminate asylum for families fleeing harrowing violence.”

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.