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Immigration lawyers say Justice Dept. ruling could undercut thousands of asylum cases

U.S. Border Patrol officers return a group of migrants to Mexico as Mexican immigration officials check the list of arrivals in Nuevo Laredo. (Salvador Gonzalez/Associated Press)

A ruling from the U.S. attorney general could upend the asylum claims of thousands of Central Americans and other asylum seekers who say they deserve protection in the United States because they belong to families that are victims of drug cartels or other criminals in their homelands.

The nation’s top prosecutor, Attorney General William P. Barr, issued the ruling Monday, partially reversing a 2017 Board of Immigration Appeals decision in the asylum case of a Mexican national who said a drug cartel targeted him and his family. Barr said that just because members of ordinary families fall victim to “private criminal activity” does not mean they can claim asylum protections in the United States on that basis.

Federal law allows immigrants to claim asylum based on a fear of persecution in their homelands because of their race, religion, nationality, political opinions or membership in a “particular social group,” which for years has included families targeted by gangs, drug cartels or others.

But Barr wrote “genetic ties” alone are insufficient to establish that a migrant is a member of a particular social group. He wrote that to qualify for protection, families should also be “socially distinct” in some way, such as the “large and prominent” clans that have been persecuted in some countries.

Such families, Barr wrote, “stand on a very different footing from an alien’s immediate family, which generally will not be distinct on a societal scale, whether it attracts the attention of criminals who seek to exploit that family relationship in the service of their crimes.”

Barr said an asylum seeker’s family should be distinct “in the eyes of its society, not just those of its alleged persecutor.”

He said the Board of Immigration Appeals “improperly recognized” the man’s family as a particular social group in 2017 after conducting a “cursory” analysis of the issue. The board actually denied the man asylum for other reasons, and his case is still pending in the immigration courts.

In one of Mexico's most dangerous cities, migrants await their fate as the Trump administration tightens asylum rules. (Video: Zoeann Murphy, Darian Woehr/The Washington Post, Photo: Carolyn Van Houten/The Washington Post)

A spokesman for the Justice Department, which runs the immigration courts, said the agency does not track how many asylum claims are based on family relationships.

The Catholic Legal Immigration Network, a nonprofit organization that represents the Mexican citizen in this case, called the decision “shameful” and said it will make it more difficult for immigrants to qualify for asylum, particularly those who are not from elite, well-known families.

Lawyers will probably challenge Barr’s decision in federal court.

A top official of U.S. Citizenship and Immigration Services emailed asylum officers Monday afternoon and implored them to ensure they “are processing cases consistent with this decision immediately,” according to a copy of the email obtained by The Washington Post. “Additional information and guidance will be forthcoming, but we wanted to make you aware of the decision as soon as possible so you can begin applying it to your pending cases.”

Lawyers said the ruling also came up in immigration courts where people are facing deportation.

“That’s the real danger of this form of decision-making,” Bradley Jenkins, federal litigation attorney at the Catholic Legal Immigration Network, said Monday in response to the ruling. “It’s absolutely going to have a tragic impact even though the legal merit of the decision is questionable.”

Barr’s ruling is one in a string of decisions the Justice Department has issued to narrow the ways immigrants can seek refuge in the United States, part of a broader effort to reduce mass migration at the U.S.-Mexico border.

The White House says the U.S. government is overrun by asylum seekers who are filing frivolous claims designed to gain entry into the United States so they can find work and other economic opportunity. Advocates say migrants are fleeing violence, poverty and hunger and should have their day in court.

In recent weeks, the Trump administration has pressured Mexico to interdict migrants on their way to the United States as well as host thousands of them until the United States summons them to court.

The Trump administration also has developed a policy that disqualifies most asylum seekers if they passed through another country, such as Mexico, on their way to the United States. A federal judge temporarily blocked that policy last week, but in a separate action Monday the Justice Department said it would seek an emergency appeal.

“The executive branch is entitled to use every legal tool available to stem the flow of aliens who lack valid asylum claims,” the department said in court filings.

Lawyers say Barr’s ruling conflicts with long-standing legal precedents in multiple federal court circuits that have recognized the family unit as a “social group.” The 1st Circuit has said there is “no plainer example,” the 4th Circuit called the family unit a “prototypical” social group, and the 9th Circuit said family units are “quintessential” groups.

Jeremy McKinney, a vice president of the American Immigration Lawyers Association, called Barr’s ruling “a poorly reasoned decision from an administration that seems intent on ending legal asylum.”

“I predict this decision is going to have a very short shelf life,” he said. “Once it makes its way to the courts of appeal, you’re going to see it reversed.”

Sarah Pierce, an analyst at the Migration Policy Institute in Washington, said the White House ordered federal agencies last year to produce more comprehensive data detailing the basis for asylum claims, but that information has not been released publicly.

Pierce said Barr’s ruling could still have a broad impact because so many asylum claims by Central Americans are based on gang threats, which are often aimed at entire families.

“This will make it more complicated to apply for asylum, and more necessary to have legal counsel,” Pierce said.

The Mexican citizen in Barr’s ruling, known only by the initials L.E.A., first entered the United States illegally 21 years ago and was ordered to leave in 2011 after a conviction for driving under the influence.

The man left voluntarily, but he returned months later because he said the powerful drug cartel known as La Familia Michoacana attempted to coerce him and his father to sell drugs from his father’s general store in Mexico City. He said people from the cartel fired gunshots near him and tried to abduct him.

A U.S. immigration judge denied the request for asylum because the man could not prove that he or other relatives were targeted as a family.

The Board of Immigration Appeals ruled that the man had proved that his father’s immediate family constituted a social group but denied the request for asylum because the man could not prove that relatives were also targets.

Barr’s ruling sent the case back to the immigration judge. The man, who lives in California, will apply for a lesser form of protection from deportation, his lawyers said.

Nick Miroff contributed to this report.