Biden administration cancels Trump limits on asylum eligibility

Attorney General Merrick Garland on Wednesday, June 16, 2021, rolled back a pair of Trump administration legal decisions that had narrowed access to the U.S. asylum system, where caseloads have ballooned in recent years from soaring numbers of claims.

Garland’s decisions vacated Trump-era rulings that had limited asylum eligibility for immigrants fleeing gangs or gender-based attacks, which his administration characterized as “private” forms of violence that did not constitute membership in a persecuted social group.

Wednesday’s decisions return U.S. asylum processing rules to pre-Trump standards.

“These decisions involve important questions about the meaning of our Nation’s asylum laws, which reflect America’s commitment to providing refuge to some of the world’s most vulnerable people,” Associate Attorney General Vanita Gupta wrote in a memo to the Justice Department’s civil division.

U.S. law allows immigrants to seek asylum if they fear persecution on the basis of their race, religion, nationality, political opinions or membership in a “particular social group.” The latter category is subject to debate between those who want a narrower definition of “social group” and others who assert it should include victims of gangs and domestic violence.

Garland’s decisions say these questions should be subject to the federal rulemaking process with opportunity for public comment.

Immigrant advocates applauded the move. “I’m very heartened by these decisions,” said Karen Musalo, the director of the center for gender and refugee studies at the University of California’s Hastings College of the Law in San Francisco. “They restore the opportunity for every claim for asylum to be judged on its own facts.”

The Biden administration has outlined plans to overhaul the asylum system and reduce the backlog by using U.S. Citizenship and Immigration Services officers to adjudicate claims.

In 2019, then-Attorney General William Barr issued a ruling partially reversing a decision by the Board of Immigration Appeals in the asylum case of a Mexican national who said a drug cartel targeted his family. Barr said that members of ordinary families who fall victim to “private criminal activity” cannot claim asylum eligibility in the United States on that basis. Garland’s decision Wednesday also reversed Barr’s ruling.

The number of asylum seekers crossing the border who claim fear of persecution has exploded in recent years, pushing the backlog of pending claims in U.S. immigration courts to more than 1.3 million. Border crossings have reached a 20-year high since Biden took office, adding hundreds of thousands of cases to the docket.

Immigrants traveling in family groups who are taken into custody along the U.S. border can generally avoid detention and a quick deportation by making a fear claim, and it may take several years for their asylum applications to receive a ruling. Applicants are given U.S. work authorization while they await an answer.

Despite the Trump administration’s attempts to restrict eligibility, the asylum queue grew longer anyway, particularly during a historic influx of Central American families in 2019, when nearly 1 million migrants were taken into custody. The vast majority of their claims are still pending in U.S. courts, government data show.

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