Opinion

New Asylum Ruling Could Become Trojan Horse For Third-World Fraudsters

Ian Smith Immigration Reform Law Institute

A recent decision from the highest immigration court in the land may have taken America’s already generous asylum program and turned it into a Trojan horse for fraudsters in the developing world. All at a time when our immigration system’s reeling from gaping national security holes and growing pressure from economic migrants.

Like most of its rulings in asylum cases, the Board of Immigration Appeals has kept the facts of the recent case intentionally sparse out of protection for the applicant. But what we do know is alarming. Simply for being abused by her boyfriend back home in Honduras, a woman residing in Colorado and presumptively an illegal alien (most asylum-seekers are) was awarded deportation relief through asylum, a privilege that not only allows for immediate access to welfare benefits and a work permit, but lets the beneficiary apply for legal permanent residency after just one year and eventually citizenship.

Although her situation was no doubt unfortunate, domestic abuse is far, far from uncommon around the world. Without a rebuke from the Tenth Circuit Court of Appeals, the new decision is guaranteed to kick-off a surge of new asylum-seekers at our borders and inside the U.S., inundating our already demoralized immigration agents with thousands of hard-to-verify domestic abuse cases.

Like grants of refugee-status, asylum requires the applicant to prove they’ve been “persecuted” or have “a well-founded fear of persecution” because of five designated grounds: race, religion, nationality, political opinion or membership in a particular social group. It’s this last, vague designation that’s at issue here.

Courts have approached this standard by asserting that, like the other four grounds, social-group membership must involve some sort of innate characteristic on the part of the applicant (like race or nationality) or one that they shouldn’t be forced to change (like religion or political opinion). Courts also require that such a group be composed of a discrete class of persons which is visible in society. Being a young male in El Salvador, for instance, who is potentially targeted for membership by gangs like MS-13 has been held as simply too large, diffuse and amorphous a group to be easily identifiable within society. Letting members of this group receive asylum-status (and all the benefits associated with it) sets the bar too low and allows the system to be invaded by fraud.

This is no less true for victims of domestic abuse, a group never considered by Congress to be covered under asylum law. Still, open-borders attorneys have lodged thousands of cases over the years arguing that social-group status should apply. Apparently, these long-term efforts are starting to work.

In this most recent case, the Board helped “evolve” the definition of particular social group to include so-called “women who are unable to leave a relationship.” Tried many times previously in the immigration courts, the made-up category’s always struck immigration judges as contradictory. In order to apply for asylum, one must do so within the U.S., away from the country where the relationship’s based. The victim, in other words, had to have left the relationship they were apparently unable to leave from. Considering any proposed social group category must be based on an immutable or changeable characteristic, and the fact that leaving a relationship by definition means the situation was indeed changeable, the Board’s work here appears highly questionable from the start.

Asylum also requires that one is persecuted because they’re a member of the social group in question. Here, as the Board found, the boyfriend had to have abused his girlfriend because she was not able to leave the relationship. Not only is this confusing, it’s the inverse that’s likely true. That is, the victim was unable to leave a relationship because she was being abused. Indeed, this is what victim-advocates say about the nature of domestic abuse.

Moreover, there could have been many other motivations behind the alleged abuse, not just because the victim was a woman who couldn’t leave. The abuser, for instance, could have been motivated by jealousy or revenge; he could have been trying to exert power and control over the relationship; or he could have simply been a terrible boyfriend lacking a basic sense of morality. In other words, the women could have simply been a victim of a crime perpetrated without reason, not of persecution based on any sort of distinguishable group-association.

The new category also lacks particularity and social visibility. To support its finding that the proposed social group was particular enough, the Board looked to social trends in Honduran society. It found that such a group is cognizable for the reason that domestic abuse in that country is a widespread problem. But such a basis certainly won’t bode well for the caseloads of asylum officers going forward. Data from the World Health Organization shows that spousal-abuse rates in the Central American region are actually lower than most other poor regions in the world. The amount of people around the globe fitting into this new category, therefore, could literally be in the hundreds of millions.

The Board further attempted to substantiate this part of its finding by noting that Honduran women are reluctant to lodge complaints with police. But without contacting the authorities, an evidentiary record cannot be established, making these asylum-claims that much harder to verify. Further, some attempt at police-contact should be expected before one takes the dramatic step of seeking asylum abroad. And if the government is unwilling to enforce the law, as the Board also found, given the subject of domestic abuse is such a sensitive one, why aren’t feminist and human rights organizations in America and elsewhere protesting outside Honduran embassies calling for sanctions or an end to foreign aid?

Considering the pay-off of far higher salaries in the U.S., generous welfare benefits, and the ability to immediately sponsor family members, a tide of spurious claims in reaction to this recent decision is all but inevitable. At its core, asylum is a system based on trust. By lowering the standards of that system, it becomes open to fraud and manipulation which subverts that trust. America’s asylum system, like it’s capacity for generosity, has to have limits and, as we’ll likely see, this latest ruling will push those limits to their breaking point.