Thread by @matt_cam

TY to all who read, shared, & reacted to some of the worst news I've received in a long time--and esp. new donors to @GoldenStairsImm.

Wow. Just... thanks.

Many of you have been asking for legal context on this, so pour a tall one and settle in for a quick Twitter law seminar

https://twitter.com/matt_cam/status/1166161730914988033

How, you reasonably ask, could a judge both accept that someone will likely be killed *and* legally deny an asylum claim? Isn't the whole point of asylum to protect from exactly that kind of harm?

Kind of! But once you establish risk of harm, it's all about *why* it will happen

I'm going to keep this as simple and unlawyerly as possible, because I think it's a really important concept that everyone should understand.

Let's start with some obvious examples (unrelated to my client) of clear likelihood of harm that don't qualify for asylum.

(1) The commander of a military unit involved in a genocide, against whom victims' families have sworn revenge. You're a persecutor. We don't protect persecutors.

(2) Someone who left town after taking a loan from a local mob boss. Poor judgment. Not really an asylum claim

Those are some easy examples of situations in which high likelihood of death ≠ asylum.

So what does it take?

Persecution on the basis of race, religion, nationality, political opinion, or "membership in a particular social group." If your harm can be tied to those, it's asylum

Most of these explain themselves. The Rohinga in Myanmar, Muslims in the C.A.R., political dissidents in China--you get it. Clear, simple. This is where the post-Cold War asylum framework works best.

Everyone else has to try for a "particular social group." So what's that? Well.

LGBTQ+ asylum seekers are the best example of a PSG. They're a distinct social group which is "socially visible," whether as a non-traditional gender identity or when they dare to be w/partners. Asylum law has been good on this for awhile now--although that could always change.

Family has also been a reliable & easy-to-understand "social group." Entire families are often targeted in their by govts & other bad guys. It's the one PSG almost everyone has.

Until last month, when AG Barr singlehandedly changed the law.

https://twitter.com/matt_cam/status/1155929644740169729

Victims of domestic violence in countries like Guatemala which have little or no governmental protection for survivors used to be a PSG. Jeff Sessions accomplished a longtime life goal by (mostly) rolling that back

https://twitter.com/matt_cam/status/1006256209060618240

Which brings us to the unique problem of Central American asylum. The Trump admin is in an interesting bind in this region, as they'd have us believe that

1) MS-13 are bloodthirsty "animals" who chop up little girls for fun

2) Asylum seekers are lying about the dangers of MS-13

Making MS-13 out to be merciless killing machines makes for a convenient excuse for justifying mass deportations, and calling all Central American asylum seekers "economic migrants" is a convenient excuse for mass denial of their asylum claims. But they can't both be true.

The truth is, as always, somewhere between these two statements. MS-13 is a vicious scourge, but nowhere near as much a threat to US domestic security as, say, white supremacist terror groups. And not *everyone* from Central America is in mortal danger.

Here's a typical Central American asylum claim:

A group of "maras" (MS-13) have been violently extorting your family business. You can no longer pay. An armed posse comes to your house one night, rapes your wife, and gives you 24 hours to pay up or leave the country. You flee.

You know local cops actively work with gang members. Your wife will never see justice for what they did to her, and they'll kill you all if you even dare to report it.

This is the part where I turn the class and ask:

What "particular social group" are we talking about here?

So there's the entire problem. The law of asylum requires a "nexus" to one of the grounds discussed above. Family is the obvious PSG, and I've been able to win claims like the one above by arguing it applies. But it had better be a strong nexus. And without that? Not much.

This leaves us with a situation in which the judge and I can agree that the family suffered real persecution, and will likely suffer even worse if deported. But it's still not an asylum claim, because--per Jeff Sessions--these transnational terrorists are merely "private actors"

Here's a thought experiment:

Imagine MS-13 were doing exactly what they're doing now in Central America... but rather than being disorganized assholes with guns, they were a branch of ISIS.

Bad news for the Western Hemisphere. But great news for asylum seekers!

If MS-13 were otherwise the same but actively hunting down just as many people as they are now *because they were Christians*, my clients would have slam-dunk asylum claims.

The fear and harm are the same here. Only the persecutor's identity is different. Kinda arbitrary, right?

Obviously I don't want MS-13 to get any worse than they already are. It's just an example of how strange asylum law can be. My clients would be just as dead after being returned either way, but whether we decide to protect them or not relies entirely upon their persecutors.

All of this is to provide a very long answer to the question: how could any judge with a conscience deny an asylum claim when he sincerely believes that the person in front of him is at severe risk of persecution and death? Everything I just said up there, is how.

So let's be clear: almost all of this predates Trump by decades, and it's not helpful to blame it all on him. But the executive branch has wide discretion to enforce and *even make* asylum law, and Trump/Sessions/Miller/Barr have made the most of that power to do maximum harm.

In short, today's asylum law is not only not flexible enough to cover many who need it most, but is being purposely narrowed and twisted to the point that it's almost as if these people just don't want to give anyone asylum at all.

Other than the occasional white Euro Christians, of course.

Try to get your head around the mortal fear of persecution these people were in... & how it's worse than MS-13. (This was under Bush, but does anyone think Barr wouldn't go for this?)

theguardian.com/world/2010/jan…

Anyway, this thread is already more than long enough and Twitter isn't the place to go any deeper than these broad concepts or try to dig into caselaw. I hope this helps provide some context beyond last night's in-the-moment righteous anger.

Thanks!