DALLAS—Acting Attorney General Matthew Whitaker is considering blocking one of the last avenues for victims of domestic violence, including children, to be granted asylum in the U.S.
In December, Whitaker quietly referred an internal Justice Department ruling on family-based asylum claims to himself. The decision hinges on what constitutes membership in a “particular social group” (PSG), a legal threshold to obtain asylum. Whitaker said in an order last month he would determine “whether and under what circumstances” being a member of a family qualifies as membership in a PSG. Immigration attorneys fear Whitaker will drastically narrow the definition and remove protections for victims of domestic and other intra-familial violence, including child victims of sexual assault and abuse.
A Justice Department spokesman confirmed the decision remains pending in Whitaker’s office, but did not provide further comment on the matter.
Already, Whitaker’s predecessor Jeff Sessions tried to remove asylum eligibility for victims of gang and domestic violence, with his own self-referral that is now partially on hold thanks to a federal judge’s ruling last month. More broadly, the Trump administration has made it harder for people to seek asylum by forcing migrants to apply at crowded ports of entry and making them “remain in Mexico” while their cases are tried.
“Especially when it comes to child abuse cases this is the best mechanism for arguing those cases,” Eileen Sterlock, a Portland-based immigration attorney, told The Daily Beast. “Also in incest cases, where a father rapes a daughter, those are really egregious cases and losing that ability to argue a family-based PSG claim is going to make those cases even more difficult.”
Whitaker inserted himself in the case of a Mexican man whose father was threatened by la Familia Michoacána, a drug cartel in the Mexican state of Michoacán. When the father refused to allow la Familia Michoacána to sell drugs out of his store, cartel members attempted to kidnap his son, known by his initials, LEA. LEA claims he was targeted by the cartel because his father refused the group’s demands—in other words, his relationship to his father qualifies him as a member of a particular social group, and that is the central reason he was threatened and must seek asylum.
A Justice Department immigration judge in California denied LEA’s asylum claim by saying being a member of his family wasn’t the only reason he was threatened. LEA appealed the decision to the DOJ’s Board of Immigration Appeals.
In 2017, the board agreed with the judge’s determination, based on long-standing legal precedent, that family-based PSG claims are appropriate for obtaining asylum. It did not necessarily agree, however, that such a claim did not apply to LEA’s case. The board then sent LEA’s case back to the immigration judge in California, before Whitaker intervened and said he would decide the matter himself.
There is only one reason for Whitaker to decide an individual asylum case, said Bradley Jenkins of the Catholic Legal Immigration Network (CLINIC), which represents LEA.
“Whenever the AG refers a case to themselves, it is always going to be to set a legal precedent,” Jenkins told The Daily Beast. “For the past 30 years the government has repeatedly said that if you are persecuted because you are a member of your family, you qualify for asylum. Several courts of appeals have said there can be no plainer example of a particular social group than being a member of a family, and DHS has agreed with this, so we think we’re on pretty solid ground here.”
If Whitaker determines familial relationships do not qualify for particular social group membership, it will “erode one of the most-used ways that domestic violence victims attempt to apply for asylum,” said Sterlock, the immigration attorney.
Domestic violence victims often make family-based PSG claims because their attacker is a member of their family. The Department of Homeland Security and several circuit courts have agreed that this is an appropriate use of the claim to obtain asylum, a position Whitaker appears likely to challenge.
“Other than this is part of a systematic plan to attack the rights of asylum seekers, it’s hard to say what the justification of doing this now is,” Sterlock said. “As an immigration attorney I can tell you that this is part of a pattern of this administration trying to deter asylum-seekers from even coming here, of trying to discourage people who are already in the asylum process, and to send the signal that this type of asylum-seeker is not welcome here."
It is not unusual for an attorney general to refer a BIA decision to himself, but the practice has been used more than ever before since Trump took office.
From 1999 to 2009, attorneys general referred BIA decisions to themselves on average less than two times a year, including just four times during the entire Obama administration, according to the American Immigration Lawyers Association. In the past two years, Sessions referred six decisions to himself, with Whitaker referring two to himself within weeks of Sessions’ resignation.
One decision left over by Sessions is whether to allow some asylum-seekers to have a bond hearing before an immigration judge in order to be released from detention. If Whitaker decides to overturn a BIA ruling that found those asylum-seekers have the right to a hearing, it would mean indefinite detention for thousands of additional migrants each year, Jenkins said.
Currently the BIA holds that migrants who enter the country illegally and turn themselves into authorities to claim asylum are eligible to be released on bond if an immigration judge deems them to be qualified. Whitaker could set a new legal precedent that would remove that eligibility, thereby detaining a large swath of asylum-seekers that includes many in the surge of the Central American families showing up at the border.
“Certainly, we’re talking about tens of thousands of people a year,” Jenkins said.
Since 2005, the BIA and circuit courts have maintained that those asylum-seekers are eligible for a bond hearing. (They’re classified as migrants who were apprehended within 100 miles of the border and within 14 days of entry.) In 2017, the Supreme Court agreed, but in a key decision ruled that immigration judges are not required to grant bond hearings.
Sessions cited the ruling as the reason he would refer the decision to himself, causing attorneys and advocates to prepare for him to set a new legal precedent by doing away with bond hearings for that class of asylum-seekers. That decision now rests with Whitaker.
If bond hearings were eliminated, it would be tantamount to a “policy of detain everybody,” said Jenkins.
If Whitaker revokes bond hearings, it would be solely up to Immigration and Customs Enforcement officials in the facilities holding asylum-seekers to grant them bond or other forms of release. Attorneys and advocates do not expect ICE to be lenient in that scenario. They point to a nationwide drop in asylum-seekers who entered legally at ports of entry (migrants ICE currently is able to grant bond or release) who have been released since Trump took office.
Indefinite detention will cause many asylum-seekers to simply give up on their cases and agree to deportation, said Carlos Spector, an El Paso immigration attorney who specializes in asylum cases.
“Where [the Trump administration] is also brilliant and evil geniuses is, it’s a two-tiered attack,” Spector told The Daily Beast. “One is the public dimension, the things that catch the eye of the public like locking up families, locking up kids, not letting asylum-seekers into the the country to exercise their rights—but the real danger is what Trump does with the regulatory schemes. What they’re doing are these internal, non-sexy, tweaking of the legal structure like revoking bond which, unless you’re an attorney doing this stuff every day, most people won’t notice.”