How Two Recent Attorney General Decisions May Affect Asylum-Seekers

On June 16, after a recent Presidential Executive Order, Attorney General Garland vacated two decisions made by former Attorney Generals. The Executive Order directed the Department of Homeland Security (DHS) and the Department of Justice (DOJ) to create a rule which gives a more straightforward explanation of the phrase “particular social group” used in asylum law. According to the Immigration and Nationality Act (INA), asylum will only be granted to an alien when: he/she suffered persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion. The phrase “particular social group” has been an area of much debate and confusion across immigration courts for decades, and the upcoming rulemaking decision will help to clarify under what circumstances an applicant should be considered a member of a particular social group.

The two decisions which have recently been vacated may greatly affect those who are currently seeking asylum in the U.S. The first decision which was vacated was a decision made by former Attorney General Barr which stated that being a member of a family would not make an applicant a member of a “particular social group.” Attorney General Garland vacated this decision and reinstated the previous law (that being a member of a family would make an applicant a member of a “particular social group”) until a new rule is promulgated by the DHS and the DOJ in accordance with the Executive Order.

The second decision which was vacated was a decision made by former Attorney General Sessions which stated that being a member of a group of people subjected to private, domestic violence would not make an applicant a member of a “particular social group.” In vacating this decision, Attorney General Garland reinstated a previous decision stating that an applicant being a member of a group of individuals subjected to domestic violence would, in fact, make that applicant a member of a “particular social group.” Like the reinstated law regarding membership in a family making one a member of a “particular social group,” this reinstated decision will remain the law that courts must follow until a rule is created by the DHS and DOJ.

These two decisions by Attorney General Garland are a welcome relief from the Trump-era cases that limited asylum eligibility. We are optimistic the new regulation will create an easier path for asylum seekers; however, we have to wait and see. Domestic violence and family-based asylum cases do not fit neatly into the legal framework of asylum. Thus, we look forward to the new regulations which may improve the prospect of many asylum seekers.

If you have questions regarding this or other USCIS immigration policies, please contact an attorney at ILBSG. Our experience and dedication to your case will ensure you get the right advice.