Garland’s actions mean that immigration judges are meanwhile free to re-grant asylum to people under threats of domestic violence or violence by drug gangs who control large parts of Central America. Some whose claims have already been denied could benefit from a Justice Department review of individuals who went to federal court after being denied under the orders of the session.
Garland’s formal decisions rejecting the Trump-era decisions indicated that the earlier decisions were ill-founded.
“The statement begins with a broad statement that ‘victims of private criminal activity’ are not entitled to asylum except perhaps in ‘exceptional circumstances’,” Garland wrote of Sessions’ 2018 decision to limit asylum in domestic abuse cases. “This broad formulation could be understood as a strong presumption against asylum applications based on private behavior. As a result, [the ruling] threatens to create confusion and to prevent a careful individual examination of asylum applications. “
Garland’s comments on the Sessions ruling on domestic violence were more circumspect, noting that his predecessor admitted at the time that his stance “contradicted the decisions of several appellate courts that recognized families as special social groups”.
The steps that are effectively expanding asylum standards carry some political risk for the von Biden government as it struggles to control a flood of migrants crossing the border illegally or presenting themselves at border checkpoints seeking asylum. Indeed, the executive order to which Garland responded with his recent actions focused directly on the southern border and migration from Latin America.
However, advocates of immigrant rights welcomed the development as a return to a more humane asylum policy.
“Reversing these gruesome decisions is the critical first step in returning to our humanitarian commitments,” said Kate Melloy Goettel of the American Immigration Council. “We urge the Biden government to put in place rules that reflect the purpose of our asylum laws – to protect refugees fleeing persecution. The Trump administration’s attempt to restrict asylum applications based on gender-based violence, gang violence, and family membership reflected the government’s focus on demonizing Central American asylum seekers and closing our nation’s doors to those in need of protection. “
A critic of the Biden administration’s immigration policy said Garland’s moves were not surprising, but they did bring the US closer to an open door approach to immigration.
“This suggests that asylum has the potential to usurp all other immigration laws,” said Mark Krikorian of the Center for Immigration Studies. “The bar for asylum has to be set very high and that means a further lowering of this bar.”
“There was a while when any woman from the Islamic world could potentially claim to be part of a particular social group, or any woman from China or any man married to a woman from China for forced abortion,” said Krikorian. “Part of the goal here seems to be to approve an ever increasing proportion of asylum applications.”