On Monday, Attorney General William Barr used a process called “certification” to issue a decision that eliminates the ability of many asylum-seekers who fear persecution due to family ties, overturning years of precedent. This represents the latest example of the Trump administration’s use of a unique power of the attorney general’s office to shape its own immigration laws. The case involved a Mexican man who said he was threatened by gangs when his father refused to let them use his store. U.S. law requires asylum-seekers to prove they fear persecution based on race, religion, nationality, political opinion or membership in a “particular social group.” The Board of Immigration Appeals determined that the man’s family constituted a social group. Barr reversed that finding, writing that a family does not qualify as such a group just because it is being persecuted. His ruling will now lower the number of migrants who are eligible for asylum.
Since coming into office, Trump’s attorneys general have used the certification process to both limit the discretion of immigration judges and narrow asylum law, restricting the number of migrants who can stay in the U.S. Most federal courts are part of the judicial branch, but immigration courts are part of the executive branch, and are thus controlled by the Justice Department. The attorney general, who runs the department, is both the nation’s top prosecutor and, in the case of immigration courts, its top judge. Because Barr is the top judge, he can pick cases from the Board of Immigration Appeals, which is effectively the appellate arm of the immigration courts, for “certification.” After reviewing those cases, he can issue binding rulings. Past attorney generals have used this power. During President George W. Bush’s eight years in office, 16 such decisions were issued, the most of any administration since the late 1950s. Under President Barack Obama, there were four such rulings, and under President Bill Clinton there were three. The Trump Justice Department is on pace to outstrip any prior administration in rendering these rulings. Its three attorneys general have issued decisions in seven cases in the last two and a half years. Three are pending. But critics believe the system puts too much power in the hands of the nation’s top prosecutor.
Barr, who took over from acting Attorney General Matthew Whitaker in February, made the first of his rulings in June, limiting the ability of detainees to bond out of detention. That ruling is also being challenged in court. The most recent case of the Mexican man seeking asylum is also likely to be fought out in court. There is a long history of the courts recognizing families as a particular social group, so Barr’s latest decision could still be overturned in the district courts. But for now, the case could mean hundreds or thousands of those arriving at the border with claims of being targeted due to family ties do not qualify for protection.