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Barr’s Reading of Asylum Law Makes It More Cruel

Noah Feldman

(Bloomberg Opinion) -- It’s not often that an act of statutory interpretation says something fundamental about who we want to be as a country.

But in the Donald Trump era, the application of immigration law has become a touchstone of our collective identity. And so a decision by Attorney General William Barr that restricts the scope of who can get asylum under the Immigration and Nationality Act has consequences and meaning beyond the people whose lives it will immediately affect.

Broadly, the point of the federal statute on asylum is to fulfill the U.S.’s international law obligation not to send vulnerable people back to their country of origin if they might be persecuted there.

The law says you can’t be sent home if you’ve been persecuted or have a well-founded fear of future persecution based on your “race, religion, nationality, membership in a particular social group, or political opinion.”

The question at issue now is: What, exactly, is included in the phrase “membership in a particular social group”? The Board of Immigration Appeals, which is the part of the Justice Department charged with interpreting the federal asylum law, has chosen to read the provision fairly broadly, and to include someone who is targeted because he or she belongs to a particular family. According to this view, a family is a “particular social group.”

The specific case, called Matter of L-E-A-, is illustrative. The unnamed person who wanted to avoid deportation claimed that he had been targeted for killing because his father, who runs a neighborhood general store in Mexico City, refused to sell drugs for a cartel known as La Familia Michoacana.

The appeals board held that if L-E-A- could show that he was being targeted because he belonged to “his father’s immediate family,” that would count as being targeted for “membership in a particular social group” — and he would get asylum.

As it happened, the appeals board didn’t think that L-E-A- proved that he was targeted because he was his father’s son. So L-E-A- didn’t get asylum. But the principle was one that the board was prepared to apply in all cases: being targeted because you belong to an “immediate family unit” is grounds for asylum.

As attorney general, Barr has the legal authority to overturn the Board of Immigration Appeals. He chose to exercise it this time to make the point that the board’s definition of membership in a particular social group was much too broad.

Barr took the position that some socially distinct clans might count as social groups, providing they are “defined with sufficient particularity” and are also “socially distinct” in a society. But ordinarily, he held, “a family group will not meet that standard, because it will not have the kind of identifying characteristics that render the family socially distinct within the society in question.”

As a pure matter of textual interpretation of the statute, Barr’s reading isn’t crazy. Characteristics like race, religion, nationality and the holding of certain political opinions seem on their face to suggest that the asylum law is meant to protect not just anyone in danger of persecution, but someone subject to a group-based form of persecution.

It’s easy to imagine that belonging to a particular clan in, say, Somalia (a scenario discussed in  another asylum appeal) would qualify, because clan or tribe identity is roughly analogous to race or nationality. But as Barr pointed out, “almost every alien is a member of a family of some kind.” Thus, recognizing all families as “particular social groups would render virtually every alien a member of a particular social group.”

On the other side of the argument is the undoubted fact that being a member of a family is an immutable characteristic, just like race. If the asylum law aims to protect people who are targeted for death because of some unavoidable aspect of their birth, it would seem sensible to include the nuclear family within the category of a “particular social group.”

If these were ordinary times, and immigration were an ordinary issue, it would be plausible to treat Barr’s decision as an exercise in conventional statutory interpretation. Reasonable people could differ, and very possibly, the attorney general’s view might be the more convincing one.

But Trump’s anti-immigrant rhetoric and policies have changed the equation by making the question of who the U.S. allows into the country into a matter of core national identity.

In this context, Barr’s decision reads like a conscious effort to keep out as many asylum-seekers as possible. Barr’s observation that “almost every alien is a member of the family of some kind” seems cruel and intended to exclude. After all, not every asylum seeker is a member of a family that is being targeted for persecution or death. Only those people whose families are being so targeted would qualify for asylum under the old appeals board rule.

The upshot is that the attorney general of the United States has decided to start sending home people who the U.S. government believes will be persecuted or killed because of the family to which they belong. In 2019, that’s more than a bad look. It’s a statement about what kind of country the United States is becoming.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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