President Donald Trump wants to end asylum for Central Americans to keep his campaign promise of halting immigration along the southwest U.S. border. Yet that goal runs afoul of U.S. immigration law, which allows people to enter the United States to seek asylum if they are at a U.S. port of entry or already in the country.
Frustrated by the law, the president has turned to his Cabinet and advisers to find him ways around it. Attorney General Jeff Sessions and other members of the Trump administration are now maneuvering to do just that. They have tried separating parents from children to deter Central American asylum seekers from coming to the United States. In a less visible, but equally appalling move, Sessions has rewritten well-established case law to eliminate the types of asylum claims brought by Central Americans.
Sessions and the rest of the Trump administration cannot run roughshod over the Constitution and U.S. laws to please the president. They must enforce U.S. asylum law in ways that are consistent, and not arbitrary, and match the objectives of this humanitarian law.
Overall the number of people crossing the U.S. border has been declining for more than a decade. One way to measure how many people cross the border unlawfully is to look at how many are caught along the U.S. border and in the United States. While this number has remained low, primarily due to a decrease in the number of people coming from Mexico, immigration from Central America has been on the rise. In fiscal year 2010, for example, Central Americans from El Salvador, Guatemala and Honduras represented about 10 percent of total apprehensions. By FY 2016, migrants from these same countries represented roughly 42 percent of those seized. Many more of the Central Americans coming to the United States are unaccompanied children and families, and most of these women and children are fleeing violence and entering the United States to apply for asylum.
The administration’s latest tactic in its war to end asylum for Central Americans is to reinterpret asylum law to eliminate the types of claims brought by people from this part of the world. This tactic is proving to be just as destructive to asylum seekers as the zero-tolerance policy that separated families at the border.
To get asylum, applicants must demonstrate that they meet the refugee definition, which requires a showing of past harm or fear of future harm based on a person’s race, religion, nationality, political opinion or membership in a social group. One way to think of social group is that it is like the other bases of asylum. Members of a social group share traits – like race – they cannot change, or beliefs – like religion – they should not have to change to avoid being harmed.
Although protected categories like race and religion are broad, courts have been unwilling to recognize other broad categories, like women or children, as social groups. Instead, they require a case-by-case analysis to determine whether a proposed group has members who share socially distinct immutable or fundamental traits. Asylum law extends protections not only to people targeted by governments, but also to people targeted by non-state actors that a government cannot or will not control. Central American asylum claims usually involve non-state actors like family members, who target their victims unchecked due to norms that condone spousal or family violence, as well as gang members, who target youth and families forced to live in their territories and outside the protection of the state.
On June 11, Sessions issued a decision in Matter of A-B-, a case involving a Salvadoran domestic violence survivor who had been raped, abused and nearly killed by her husband. The attorney general inserted himself into the case purportedly to refine and apply the social group analysis developed over the past several years to the question of whether domestic violence survivors, like the respondent in Matter of A-B-, qualify for asylum. This area of law, however, was already well-settled, suggesting that Sessions’ motives were to restrict immigration rather than clarify the law. The breadth of the decision, which went well beyond the validity of the proposed domestic violence-based social group, and appeared to announce a categorical bar to claims involving domestic or gang violence, also suggests that the attorney general had other motives for issuing the decision.
The president is responsible for implementing and enforcing the laws written by Congress. To that end, he appoints the heads of federal agencies, including members of his Cabinet like Sessions. These agencies are then responsible for the day-to-day enforcement and administration of federal laws. In enforcing a law, an agency can issue an order or rule interpreting it. An agency’s interpretation of the law is usually entitled to deference, meaning that a reviewing court must adopt the agency’s interpretation of the law unless, for example, it is arbitrary or capricious. Government is at it is most arbitrary when it treats similarly situated people differently.
Sessions’ ruling in Matter of A-B- is particularly suspect and not entitled to deference because it cannot be reconciled with established domestic or international laws and would require adjudicators to apply asylum law arbitrarily. Courts have granted asylum for female-genital cutting, honor killings, forced marriage, and countless other harms inflicted by family members and other non-state actors. Sessions’ decision fails to distinguish between these forms of gender-based violence and domestic violence.
Central American asylum seekers at the border will feel the impact of the attorney general’s decision immediately. In the decision’s very first footnote, Sessions essentially gives the Department of Homeland Security (DHS) permission to deny the types of asylum claims typically brought by Central Americans. DHS has issued a guidance memorandum to its asylum officers (who typically screen applicants apprehended at the border for asylum) instructing them to do exactly that. Immigration judges (who are under pressure from their boss, Attorney General Sessions, to clear their dockets) will also rely on this decision to deny asylum to Central American asylum seekers who have cases pending in their courtrooms.
The president cannot deny people rights granted to them by law. The framers of the U.S. Constitution wisely limited presidential powers to prevent the abuse of power and ensure the rule of law. It’s now time for his Cabinet to tell him no when saying yes would violate U.S. law.
Uzoamaka Emeka Nzelibe is a clinical associate professor at the Northwestern Pritzker School of Law, where she teaches an immigration law clinic that focuses on the representation of unaccompanied immigrant children.