Family-Based Asylum to be Curtailed?

January 22, 2019

IRLI makes the case for realism in the asylum process

WASHINGTON – Responding to an invitation by Acting Attorney General Whitaker, the Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief in a case the Attorney General has referred from the Board of Immigration Appeals to himself. The Attorney General sought briefing on when, and under what circumstances, an alien may be eligible for asylum in America because of persecution in his home country against his family.

Claims of family-based persecution back home are proliferating at the border. They rely on the theory that a family unit counts as a “particular social group” in asylum law. Under this theory, for example, if an alien and multiple members of the alien’s family have been victims of a particular criminal or criminal gang, and the government has failed to punish the perpetrators, then the alien has suffered persecution, ascribable to the government, on account of the alien’s membership in a “particular social group” – the alien’s family – and is eligible for asylum in the United States.

As IRLI shows in its brief, there are a number of things wrong with such theories. First, disagreeing with those federal appeals courts that have considered any nuclear family a “particular social group,” IRLI argues that the vast majority of families lack the social visibility to count as “socially distinct” in their countries – part of the standard test for being a “particular social group.” Some politically-prominent families, such as the Romanovs, might have that level of social visibility, but most families do not.

Second, IRLI points out how infrequently people are targeted for persecution because of their family membership. Even if criminals harm or threaten multiple members of the same family, the reason is usually to harm or influence a particular individual in the family – as when a gang threatens a potential witness by threatening his family – or to exploit an opportunity – as when money is extorted repeatedly from a wealthy family. Such persecution, though reprehensible, is not perpetrated “on account of” family membership, as required in asylum law, but for other motives. Of course, Hatfield versus McCoy-style family feuds are not unknown, but they are invoked in only a small subset of family-based asylum claims.

Lastly, an alien claiming family-based asylum has to show that the government is either extraordinarily unable or unwilling to protect the alien from persecution. Even in violence-plagued countries, these are hard showings to make. It is not enough merely that particular crimes were not prevented by police. Rather, the government has to be unwilling or wholly unable to stop crime.

“Family-based asylum is the latest way anti-borders activists are trying to flood the country with economic migrants using the asylum system,” explained Dale L. Wilcox, executive director and general counsel of IRLI. “Many people want to come to America because they think they would have a more prosperous life here, but they should not be given asylum if they do not meet the true definition of an asylee, are lowering the wages of working Americans, and are crowding out the very people our asylum system was designed to offer refuge to – actual victims of group-based tyranny in the world. In the interests of the American people, we hope the Attorney General keeps family-based asylum within its true, and thankfully rare, confines.”

The case is Matter of L-E-A-, 27 I&N Dec. 494 (Attorney General).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]