Legal Aid clients seek asylum and refuge in the United States for highly personal and compelling reasons. Some were targeted with severe violence, persecution, and torture based on their gender and/or status as part of the LGBTQ+ community. Others may have been attacked and threatened with death by powerful gangs because of who their family members are. We are thrilled that Attorney General Merrick Garland took an important first step last week towards undoing some of the Trump administration’s relentless attacks on asylum law by overturning biased and xenophobic rulings from former Attorneys General Sessions and Barr in cases called Matter of A-B- and Matter of L-E-A-. These cases made sweeping generalizations attempted to close the door to protection for everyone fleeing gang violence, domestic abuse, or harm based on gender.
The now overturned decisions spread fear and confusion among the District’s immigrant community, and they contributed to steep drops in national asylum approval rates. Many vulnerable people were deported home to face terrible danger. In Matter of A-B-, former Attorney General Sessions opined that “generally” people escaping domestic violence should never receive asylum. The new decisions from Attorney General Garland reverse this dangerous precedent, restoring prior guidelines protecting those seeking asylum based on domestic violence, gang violence, and gender-based persecution. Judges may no longer rely on these Trump era decisions to deny people a fair day in court.
But this win of undoing harm and restoring asylum law to its prior state is a prelude to the next big fight: bringing immigration law into the 21st century. Matter of A-B- and Matter of L-E-A- exploited a longstanding vulnerability: Congress wrote asylum laws in 1951, in the shadow of World War II and the Holocaust, to grant protection to refugees fleeing harm in that era. Although the definition of “refugee” no longer matches up to the most common reasons people are forced to flee their homes today, government officials are still applying laws and definitions for the same five groups of refugees from 1951 in our contemporary immigration court system. However, the Departments of Justice and Homeland Security are currently preparing new regulations to establish policies for evaluating cases involving gender-based violence, LGBTQ+ based persecution, and family-based persecution. In addition to strong agency regulations recognizing the rights of women, children, survivors of domestic and gang violence, and LGBTQ+ refugees, Congress must also act to update the underlying immigration law to prevent a future administration from causing similar harms again, and the immigration courts must be reformed to have real independence from politicians interfering with life and death decisions for refugees.