Garland’s actions mean that in the meantime immigration judges will be free to again grant asylum to individuals based on threats of domestic abuse or violence from drug gangs that control large swaths of Central America. Some whose claims were already denied could benefit from a Justice Department review of the cases of individuals who went to federal court after being turned down based on the Sessions orders.
Garland’s formal decisions repudiating the Trump-era rulings suggested that the earlier decisions were not well reasoned.
“The opinion begins with a broad statement that ‘victims of private criminal activity’ will not qualify for asylum except perhaps in ‘exceptional circumstances,’” Garland wrote about Sessions’ 2018 decision limiting asylum in gang-related cases. “That broad language could be read to create a strong presumption against asylum claims based on private conduct. As a result, [the ruling] threatens to create confusion and discourage careful case-by-case adjudication of asylum claims.”
Garland’s comments on Sessions’ family-violence ruling were more circumspect, noting that his predecessor acknowledged at the time that the stance he took was “inconsistent with the decisions of several courts of appeals that have recognized families as particular social groups.”
The moves, which effectively broaden asylum standards, carry some political risk for the Biden administration as it struggles to control a surge of migrants illegally crossing the border or presenting themselves at border checkpoints and seeking asylum. Indeed, the executive order Garland said he was responding to with his latest actions was squarely focused on the southern border and migration from Latin America.
However, immigrant rights advocates hailed the developments as a return to a more humane asylum policy.
“Rescinding these cruel decisions is the first critical step to returning to our humanitarian obligations,” said Kate Melloy Goettel of the American Immigration Council. “We urge the Biden administration to adopt rules that reflect the purpose of our asylum laws — to protect refugees fleeing persecution. The Trump administration’s attempt to curtail asylum claims based on gender-based violence, gang violence and family membership reflected the administration’s focus on demonizing Central American asylum seekers and shutting our nation’s doors to those in need of protection.”
One critic of the Biden administration’s immigration policies said Garland’s moves were unsurprising, but moved the U.S. closer to an open-door approach on immigration.
“What this points to is that asylum has the potential to usurp all other immigration laws,” said Mark Krikorian of the Center for Immigration Studies. “The bar for asylum needs to be set very high and what this represents is a further lowering of that bar.”
“There was a while when potentially any women from the Islamic world could claim to be part of a particular social group, or any woman from China or any man married to a woman from China, because of forced abortion,” Krikorian said. “Part of the goal here appears to be to approve an ever climbing share of asylum applications.”