Here’s what you need to know about Barr’s ruling.
1. Federal law has historically protected families targeted by political violence.
In 1980, Congress and the president enacted the Refugee Act, incorporating many elements of the United Nations’ 1951 Convention on Refugees and the 1967 Protocol Relating to the Status of Refugees. The U.S. law sets the criteria for allowing certain immigrants to claim asylum in the United States, which protects them from deportation to their home country and declares family reunification a priority.
Historically, this requires that asylum seekers demonstrate fear of persecution in their country of origin based on race, religion, nationality, political opinions or membership in a “particular social group.” In asylum cases since 1985, that has included membership in a family targeted for violence.
For example, if members of a Salvadoran family had been killed by gangs for refusing to continue extortion payments, surviving family members sometimes have been able to claim that as grounds for refugee status in U.S. asylum cases. This requires that they show that as members of this family, a gang is likely to kill them should they be deported to their home country. In places such as El Salvador, gangs remain in control by maintaining the perception that they have complete authority over life and death. That means that people comply with gang demands of financial extortion, sexual exploitation, narcotrafficking and gang recruitment — because refusing can mean torture and/or assassination, not just for themselves but for their families.
As journalists and human rights groups have widely documented, the gang slogan in El Salvador — “See, hear, and be silent” — governs gang-controlled areas. “Example killings” make others more likely to comply with gangs. What’s more, such killings reinforce the knowledge that the police cannot protect civilians. In fact, police are frequently corrupt, do not enforce the rule of law and are sometimes human rights abusers themselves.
2. Barr’s ruling will make it harder for persecuted families to secure asylum.
The U.S. attorney general has the legal power to make immigration rulings. These must be upheld by immigration judges and attorneys in the Department of Homeland Security (DHS) who prosecute asylum seekers. In this case, Barr ruled that “genetic ties” do not constitute sufficient membership in the particular social group of the family.
The ruling is at odds with how families operate socially in Latin America. In Mexico and Central America, for example, the family is the basic unit of social existence. Whether in urban or rural areas, people consider family to include not just the nuclear family of parents and children, but also the extended family. Gangs threaten or prey on their targets’ relatives to force compliance.
Barr’s ruling increases the burden of proof on asylum seekers, removing the presumption that they could fear persecution just because gangs targeted members of their family.
3. Why the administration took this position
Of course, this ruling is just one among many Trump administration actions aimed at discouraging Latin American migrants. That includes separating migrant children from their families at the U.S.-Mexico border and this month’s mass immigration raids on Mississippi workplaces, in which Immigration and Customs Enforcement (ICE) detained 680 undocumented migrants, many of them parents of U.S.-born children. Other such actions include calls to restrict green cards or citizenship applications for immigrants who have used public benefits in the past or might in the future, ending Temporary Protected Status for migrants from several countries, and continued expansion of border patrols.
Barr’s ruling continues these efforts to curb undocumented migration, in keeping with Trump’s campaign promises to rid the United States of Latin American migrants.
According to a recent report by the Southern Poverty Law Center on immigration courts, the Trump administration has gone much further than previous administrations in dictating rules and procedures for federal immigration courts — at the expense of maintaining an unbiased, consistent and apolitical immigration court system.
Barr’s new ruling is similar to a June 2018 decision by Jeff Sessions, the U.S. attorney general at the time, stating that domestic violence is not sufficient grounds for an asylum claim. These precedents significantly affect asylum seekers by further limiting the grounds for claiming relief from deportation proceedings. Immigration attorneys interviewed and in focus groups run by the Southern Poverty Law Center already reported abusive, arbitrary treatment of claimants by judges in immigration courts.
Countries such as El Salvador, Honduras and Mexico cannot protect vulnerable citizens from gangs and rampant violence. Police and other government officials are often beholden to gangs, and it can be difficult to tell who is calling the shots. Until these conditions change, people will continue to seek refuge.
Mneesha Gellman is assistant professor of political science at Emerson College and serves as an expert witness in U.S. asylum cases. Her research examines the intersection of minority rights, violence and democratization in numerous countries, including Mexico, El Salvador and the United States.