Presidents of both parties, and houses of Congress controlled by both parties, have for decades tolerated and thus implicitly encouraged and provided an incentive for illegal immigration. What has been sacrificed along the way is the rule of law.

Will the federal judiciary not only change central provisions of American immigration statutory law pertaining to admissions at the southern border but also oversee individual admissions decisions? Over the last year, with the caravans of persons from such Latin American countries such as Honduras, Guatemala, and El Salvador presenting themselves at our southern border, the issue has been uniformly put forth by the media, the Democrat party, numerous foundations and private organizations, and some churches, and essentially acquiesced in by much of the Republican Party, that virtually anyone appearing at the southern border should be immediately admitted and eventually granted permanent status for humanitarian and “asylum” reasons, regardless of immigration law.

With the intimidating focus on “kids” begun by Barack Obama’s bypassing of Congress with his enactment of the still-in-effect “Dreamers” amnesty program in 2012, and today concerning the “separation of families” entering the country from Latin America, any public debate about or even any public knowledge of essential provisions of American immigration law, especially with respect to “asylum,” has effectively been eliminated.

Now, in Grace et al v, Whitaker, Emmet G. Sullivan, a federal district judge for the District of Columbia, has adjusted immigration law to fit the prevailing public consensus. In December, he enjoined the Trump Administration from enforcing the law of asylum as enacted by Congress and required it go back to its loose application under the Obama administration.

Seekers of asylum are refugees

In the field of immigration, the Attorney General has “controlling” authority over “questions of law.” 8 USC 1103(a)(1). In June 2018, then-Attorney General Jeff Sessions had promulgated a legal memorandum, Matter of A-B-, explaining and summarizing the law of “asylum” and overruling the practices of the Obama administration that had effectively set the stage for the current situation at the southern border.[1] Immediately, a group of aliens, “twelve adults and children,” all under pseudonyms, all already in the country and all allegedly “fleeing violence from Central America,” sued in the federal district court for the District of Columbia seeking an injunction to stop Sessions’ memorandum and to put into effect a permanent change in the meaning of “asylum” in immigration law as enacted by Congress.

The current news blackout about the relevant sections of immigration law b is fundamentally based on a confusion and a lack of understanding about the difference between a “refugee” and a seeker of “asylum.” A refugee is a person who is not in the United States and who applies for admission “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” (8 USC 1101(a)(42)(A)). A refugee is a person seeking protection from governmental, political, or organized social oppression in his country of origin. By law, the President sets annual refugee limits by country. In 2019, President Trump has set a limit of 30,00 refugees worldwide, with various countries in Africa making up an African total of 11,000 refugees.[2]

As can be seen from the low numbers and in light of the United States’ post-World War II commitment to political reformers and victims of political oppression worldwide, refugee status is neither currently controversial nor much in the news. The issue at our southern border is asylum. Asylum pertains to someone already in the country or who arrives at a point of entry with the purpose of applying for asylum. It allows for permanent residency, including authorization to engage in employment. 8 USC 1158(c). Even though already in the country or present at the border, a person is eligible for asylum based on the same statutory categories as a refugee. Under 8 USC 1158(b), a person “who has applied for asylum” must be “a refugee with the meaning of section 1101(a)(42)(A),” the statutory provision defining “refugee.” That is, he must allege that he is being persecuted or afraid of persecution on account of race, religion, nationality, particular social group, or political opinion. The asylum provision of the statute is dependent on the definition of refugee.

Thus, an asylum seeker is just a refugee who is in or at an entry point of the country. The same justifications for permissible entry and residency apply to both. The current crisis—emergency?—at the southern border is based on ignoring this undoubted legal command and, of course, on the overwhelming emotional intimidation that goes with it.

As for the necessary degree or perception of persecution, it has been the subject of decisions of both immigration courts and federal courts. In order to be considered for asylum, the law requires that a person have a “credible fear of prosecution,” and such a fear “means that there is a significant possibility, taking into account the credibility of the statements made by the alien support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum.” 8 USC 1225(b)(1)(B)(v). The definition of a “refugee” requires that the fear be “well-founded.” 8 U.S.C. § 1101(a)(42)(A).

“Particular social groups”

The current crisis at the border is based on the attempt and ever-increasing success of effectively adding a new eligibility category for asylum, economic need and fear of crime, by expanding the statutory refugee-asylum definition of what “a particular social group” in a foreign country is. The Attorney General has normally delegated his “controlling” legal authority to the Board of Immigration Appeals (BIA). In 2014, the Board, responding to an increase in attempts to expand the definition, held that “membership in a particular social group” has three components: it must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”[3]

In A-B-, Attorney General Sessions overruled a more recent decision of the BIA and re-affirmed the standard of 2014, but also added an additional component: the applicant for asylum must “show that her home government is unwilling or unable to protect her.” The Attorney General, citing the actual statute and judicial precedents, BIA and federal court, said that the “broad swaths of society [that] may be susceptible to victimization,” such as “gang violence,” or “domestic relationships,” are “too diffuse to be recognized as a particular social group.” Such people “lack sufficient social distinction to be cognizable as a distinct social group.” And such groups cannot be persecuted “because persecution is something a government does.” [emphasis in original]. “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.” Thus, the Attorney General held that refugee/asylum categories are defined in the statute, and asylum seekers cannot invent new categories of “persecution.”

Immigration law is too “narrow”

In Grace et al v. Whitaker, District court Judge Sullivan, avoiding the statutory definition of refugee as well as asylum and concentrating on what he said the Congress and the United Nations have “intended,” regardless of actual statutory language, has now come to his own conclusion that, notwithstanding the five categories of refugees set out in the immigration statute, Congress had “not spoken directly on the precise question of what victims of domestic or gang-related persecution fall into the particular social group category” and that the definition of social group “should not be read too narrowly.”

However, despite his numerous assertions that A-B- has failed to follow the “intent” and “purpose” of the United Nations refugee program, which our country has endorsed as a treaty, as set out in the United Nations Handbook on Refugees, he failed to mention anywhere in his 105-page order that the UN’s definition of a refugee is exactly the same as ours: a “well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”[4] In addition, he failed to mention several passages in the Handbook that have to do with past attempts to expand, as he has now done, the definition of a “refugee.” There may be many reasons, the Handbook says, for leaving one’s country that are “compelling and understandable,” but one is not subject to persecution unless it is a result of “fear” of being persecuted except “for the reasons stated.” i.e. race, religion, nationality, membership of a particular social group or political opinion. “Victims of famine or natural disaster” are not refugees. Differential social treatment “of various groups” with the result that some “receive less favorable treatment” does not “necessarily” make them victims of persecution. If a migrant “is moved exclusively by economic considerations, he is an economic migrant and not a refugee.” And: “Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status.” “Persecution is normally related to action by the authorities of a country.” Thus, the United Nations handbook is exactly like American immigration law and its interpretation in A-B-.

Having avoided the definition of a “refugee” as set out by both the Congress and the United Nations and having nullified the statutory authority Congress has given the Attorney General over immigration policy in 8 USC 1103(g)(2): “[t]he Attorney General enjoys broad powers with respect to ‘the administration and enforcement of [the INA itself] and all other laws relating to the immigration and naturalization of aliens.’” Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 279 (4th Cir. 2004) (quoting 8 U.S.C. § 1103(a)(1)),” Judge Sullivan then moved on to the issue of a “credible fear of prosecution.”

He held that A-B- had created an impermissible “general rule” at the credible fear stage. And that general rule was “arbitrary and capricious because there is no legal basis for an effective categorical ban on domestic violence and gang-related claims.” Rulings by immigration hearings and by courts must be “individualized,” he stated. The Attorney General’s general rule was inconsistent with Congress’ “intent” to bring “United States refugee law into conformance with” the Protocol of the United Nations. Deliberating ignoring the actual, written standard as set out in the law, he concluded that the “legislative history of the [1996 Immigration Act] confirms that Congress intended this standard to be a low one.”

Immigration as a right

Article I, Section Eight of the Constitution provides that among the “powers of Congress” is the power to “establish an uniform Rule of Naturalization.” In Toll v. Moreno (1982), the Supreme Court held that “[t]he Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” And, in Landon v. Plascencia (1982), the Supreme Court declared that “an alien seeking initial admission has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” And in US ex rel Knauff v. Shaughnessy (1950), a case among other controlling cases emphasized by the Department of Justice (DOJ) in its brief in this case, the Court had stated that “an alien who seeks admission to this country may not do so under any claim of right.”

These supposed legal and constitutional authorities, never mentioned in the public debate and unknown to the American people, did not stop Judge Sullivan from permanently enjoining the attempt by the Trump Administration to enforce federal immigration statues and United Nations law and protocols as written. In the usual legal-activist and judicial-activist manner of avoiding the meaning of words in favor of their “spirit,” Judge Sullivan invoked the “intent” and “motivation” of both United States and United Nations law in his decision amending and expanding both laws. And in his numerous references to the implied superiority of United Nations law, it did not seem to bother him that the actual words of United Nations law contradict his conclusion.

Now, in ordering that everyone who, in his words, brings forth “alleged accounts of sexual abuse, kidnappings, and beatings in their home counties” must be immediately considered, processed, and released into the country pending some future hearing, he has brought federal immigration law, absent an overruling on appeal, into conformance with the daunting public rhetoric that the situation at our southern border is solely a humanitarian crisis based on the pitiable problems of families and children in Latin American countries, especially Guatemala, El Salvador, and Honduras.

Meanwhile, the practice of federal immigration law at the southern border seems already much in conformance with Judge Sullivan’s ruling. The Trump Administration has capitulated to the uproar over the “separation of families” issue; even though it is a daily occurrence in every city and county of this country that arrested parents are separated by law enforcement authorities from their children, who are then turned over to relatives or social services agencies. What is the alternative, putting the children in jail?

And now, as a result of Judge Sullivan in Grace et al. v. Whitaker, immigration-advocacy groups on both sides of the border have been given a still-wider window and opportunity in American “asylum” law to jump past the now-declared “arbitrary… government persecution” basis for asylum and to substitute general personal suffering or misfortune as the new basis for asylum. The result appears to be that the “border protection” role of the Customs and Border Protection agency no longer seems to exist. That agency is now some kind of international social work institution.

Presidents of both parties and houses of Congress controlled by both parties have for decades tolerated and thus have implicitly encouraged and provided an incentive for illegal immigration. What has been sacrificed along the way is law and the rule of law. And now that we are beyond “asylum,” it remains to be seen whether we will have mass migration from Latin America into the country. And why will it be limited to Latin America? There are many countries in the world with similar social, political, and economic conditions.

In Grace et al., Judge Sullivan did not stop at a mere legal holding and injunction in favor of the anonymous plaintiffs still in the country. The court went on to order “the government to return to the United States the plaintiffs who were unlawfully deported” in connection with the case. Why stop at this case? Why not expand it to other deported migrants?

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Matter of A-B-.

2 “Proposed Refugee Admissions for Fiscal Year 2019.”

3 “Matter of M-E-G-V-, Respondent.”

4 “Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.”

Editor’s Note: The featured image is “Un Dîner de Philosophes” (1772) by Jean Huber (1721-1786), courtesy of Wikimedia Commons.

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