The Trump administration is considering narrowing the pathway for granting asylum to immigrants based on claims that violence or threats of violence against their family members also puts them at risk.
People can seek asylum protection in the United States if they have a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group.
“It’s not uncommon for the bad guys to say to one person, 'If you don’t do what we say, we are going to harm your family,'” Bradley Jenkins, an attorney who works with Catholic Legal Immigration Network Inc., told NBC News.
Historically, a social group has included family ties, said Jenkins, who is challenging the administration's move on behalf of a client identified only by the initials L.E.A.
Threats against such immigrants, experts say, are often a means of extortion.
But former acting Attorney General Matthew Whitaker decided to review whether family membership as a “social group” meets a more stringent test, a change that could affect thousands. The new attorney general, William Barr, could pass on the case, though that would run counter to his predecessors' use of their authority to review criteria for asylum claims.
"If someone is going to hurt you because of who you're family is ... "
Jenkins' client argued that it was his family ties that put him in danger when he sought asylum.
L.E.A. was denied asylum by a lower court and by the Bureau of Immigration Appeals, but the appeals panel upheld the principle that having a well-founded fear of persecution on account of family membership can be considered a protected characteristic for asylum purposes, Jenkins said.
The law allows the attorney general to review decisions by the appeals bureau, so Whitaker referred the case to himself to determine "whether and under what circumstances an asylum-seeker may establish persecution on account of membership in a particular group based on membership in a family unit."
Originally from Mexico, L.E.A. fled to the United States in 1998. While in the United States, a Mexican cartel falsely told his father in 2009 that they had kidnapped L.E.A. in an extortion scheme.
L.E.A. returned to Mexico in 2011, after being granted voluntary departure, a forced removal from the United States in which the immigrant agrees to leave the country rather than go through a formal deportation process.
Back in Mexico, L.E.A. learned that his father had refused to allow La Familia Michoacana cartel to sell drugs through his grocery and general merchandise store. The cartel targeted L.E.A., shooting at him and trying to kidnap him. He escaped four masked men who tried to push him into a car.
“We believe that if someone is going to hurt you because of who your family is, that is right in line with what the asylum law protects,” Jenkins said.
The Department of Homeland Security has agreed with that view, saying in a 2016 brief that in virtually every society in the world, families qualify as particular social groups, he said.
Potential to upend "basics of asylum law”
The Bureau of Immigration Appeals first considered what a social group means in asylum law in 1985. The panel said it means things based on characteristics that are fundamental to identity and conscience, like kinship ties. The appeals bureau has upheld the idea several times since, Jenkins said, which makes the administration's latest move so distressing to immigrant-rights advocates.
“Any proposal to upset the apple cart here is really one that has the potential to fundamentally upend the basics of asylum law,” Jenkins said.
However, Andrew Arthur, a resident fellow in law and policy at the Center for Immigration Studies, a group that advocates for a severe reduction in immigration, said the attorney general's review is needed to provide “bright line guidance” on this part of asylum law.
He argues that people like L.E.A. are the victims of crimes, but are not targeted because his family belongs to a particular social group.
In a hypothetical example, a woman requesting asylum because gangs are trying to recruit her son should not be eligible for asylum, he said.
“Crime happens thousands of times a day in Baltimore, but the vast majority of the crime victims would not be eligible for asylum in Mexico or Canada because they had been crime victims in the United States,” he said.
The review of the asylum issue comes after Jeff Sessions, then the attorney general, used the same process to decide that victims of domestic and gang violence were not eligible for asylum. In that decision, Sessions questioned whether family membership should be grounds for asylum. A federal judge has struck down parts of Sessions' decision.
Sessions used his authority to certify immigration cases to himself and review them eight times in the first 10 months of 2018, and Whitaker did so twice in four months. During eight years of the Obama administration, the attorney general at the time used that authority four times, according to the Catholic Legal Immigration Clinic.
M. Lucero Ortiz, director of legal services for the Central American Resource Center in Washington, said many of the migrants coming to the United States now are fleeing the violence stemming from a family member who was or is associated with a gang, or from a family member who owns a business that is targeted by cartels and gangs.
“We see a lot of bus drivers who refuse to pay 'rent,' and so the whole family is targeted," Ortiz said, using slang for extortion money. "They tell them if you don’t pay, I know where your wife and children are."
An attorney general decision restricting family membership as grounds for asylum would be challenged in court, but while the case is pending, “we are very afraid … people are going to be erroneously deported,” Jenkins said.
“This is a basis upon which many people have applied for asylum for a long time,” Jenkins said. “The proposal to close this door is not based on the law as its been interpreted for the past 34 years and would put a lot of people in very real danger."