Opinion

Biden’s relaxed new border rules mean Baltimore residents would qualify for asylum

In 2018, Donald Trump’s attorney general, Jeff Sessions, applied existing law to set standards migrants must meet to receive asylum. Shortly after he took office, Biden’s new AG, Merrick Garland, erased those standards and expanded asylum eligibility to cover victims of the sorts of gang violence that plagues numerous crime-ridden US cities.

If only suffering Americans could receive the kind of concern the president has shown toward those so-called “asylum seekers.”

To be granted asylum, migrants must prove they fear “persecution” on account of their race, religion, nationality, political opinion, or “membership in a particular social group.” The first four factors are straightforward, but the last is virtually limitless, as reviewing courts have found.

Recognizing that Congress didn’t intend to allow every migrant facing any possible harm abroad to be granted refuge in the US, those courts and the Board of Immigration Appeals — DOJ’s appellate immigration tribunal — erected a framework to define “membership in a particular social group.” Session’s 2018 opinion in Matter of A-B- was the culmination of that effort. Congress has directed the AG to decide questions of immigration law, and Sessions used that power to make clear that “social groups defined by their vulnerability to private criminal activity” likely wouldn’t qualify for asylum, though he admitted that in “exceptional circumstances” they might.

Conversely, he further explained that because victims of gang violence can come from any sector of society, they therefore likely would not be eligible, either.

Garland issued his own decision in Matter of A-B-, vacating Session’s decision, thereby throwing open the door to any asylum claim based on criminal activity and gang violence, and erasing the clear standards Sessions had set. If you wonder why the Biden administration has released more than 836,000 so-called “asylum seekers” at the Southwest border, it’s because threats of any sort of criminal violence at home now make illegal migrants eligible for asylum here, and place them on a path to citizenship.

Attorney General Merrick Garland allowed gang violence to be a factor granting asylum.
Greg Nash/Pool via REUTERS

Anyone who has lived in a major city knows that crime, and in particular gang violence linked to the drug trade, can be a fact of life. Nowhere is that truer than in my former hometown of Baltimore.

Well-run Baltimore gangs rely on often violent associates and a fresh supply of recruits (voluntary and otherwise) to run their businesses. Drugs and extortion are their stock in trade; the brutality and threats are simply tools to maintain control. The asylum gang claims I heard as an immigration judge reminded me of Baltimore.

Most Central American asylum applicants asserted either that the gangs had extorted them, tried to forcibly recruit them, or threatened them with harm if they cooperated with the authorities.

As in Baltimore, the police in those countries are often powerless to help, although applicants also regularly asserted that the cops were corrupt (an issue Baltimore struggles with, as well), and therefore could not be relied upon. There were 337 homicides in Baltimore last year (mostly linked to drug violence), and the homicide rate there last year was 58.27 per 100,000. By comparison, the 2021 homicide rate per 100,000 was 17.6 in El Salvador, 16.6 in Guatemala, and 38.6 in Honduras. Given that, Baltimoreans would be forgiven if they fled south for safety.

Residents of Baltimore would be eligible for asylum based on the new standards for gang violence.
REUTERS/Jose Luis Gonzalez

None of this is intended to minimize the endemic crime, violence, or corruption that plagues those Central American countries. Nor is it meant to minimize the suffering of gang victims there. As Sessions noted, however, nothing in the text of US asylum law “supports the suggestion that Congress intended ‘membership in a particular social group’ to be ‘some omnibus catch-all’ for solving every ‘heart-rending situation.’ ”

Violent crime, driven by gang greed and predation, is a sad fact of life in parts of Central America. But that’s also true in many major US cities, too. Unfortunately, the plight of those suffering Americans has not evoked the sorts of “fairness” and “humanity” the Biden administration claims it is seeking for illegal migrants at the Southwest border.

Andrew Arthur is a former INS associate general counsel, congressional staffer and staff director, and immigration judge who now serves as the Resident Fellow in Law and Policy at the Center for Immigration Studies.