In my July 29 post, I showed that an overly restrictive interpretation of one of the most often used grounds for claiming asylum in the United States - showing that fear of persecution is based on membership in a particular social group (PSG) - has been regularly used by the Board of Immigration Appeals (BIA) to deny asylum claims based on fear of gang violence in Central America over the past 30 years. As I also mentioned, the alleged difficulty of overturning these decisions is now being used by immigration opponents as an excuse for advocating a change in the current law (TVPRA) guaranteeing an asylum hearing before an immigration judge to unaccompanied children (UAC's) from every country in the world (except for Mexico and, for some reason, Canada) who arrive at the US border and can show a credible fear of persecution in their home countries at their initial screening by a DHS officer.

The argument for changing the law in order to turn UAC's away without a hearing is based on the theory that almost all of them would lose at their asylum hearings and ultimately be deported anyway for the above reason.

However, some immigration opponents are apparently not satisfied with attempting to change the law in order to take away the right to an automatic removal hearing for UAC children from countries such as Guatemala, Honduras and El Salvador, with their powerful gangs and high homicide rates, who pass the initial screening.

Even if the BIA or the federal appellate courts (which in some cases are showing more openness than the BIA to claims that refusal to join or remain in a gang is a valid basis for PSG membership - at least if the gang is located in East Africa rather than Central America - see my July 29 post), were to abandon the restrictive approach to the PSG issue, these same immigration opponents apparently want to make sure that fewer Central American children will pass the initial screening required by the TVPRA.

Accordingly, with some signs of support from the Obama administration itself, immigration opponents in the House are trying to weaken another pillar of asylum law - namely the "credible fear" doctrine. See POLITICO: Johnson said to favor asylum law change (July 30).

Evidently, House Judiciary Committee Chairman Bob Goodlatte (R-VA), whom some immigration supporters had hoped (without much basis) would turn out to be a Knight in Shining Armor riding to the rescue of immigration reform less than a year ago, is worried that even the BIA's long standing unreasonably narrow PSG standard (which my colleague Nolan Rappaport thinks may take many years to change - I respectfully disagree with him, as I will discuss in an upcoming post) will not be enough to stop as many Central American border children (UAC's) from being granted asylum as Goodlatte would like to see sent home.

POLITICO reports that Goodlatte and Rep. Jason Chaffetz (R-Utah) have introduced a bill that seeks to tighten the credible fear standard by requiring UAC's to show that they have a credible fear of persecution according to a preponderance of the evidence in the initial screening, not just before an immigration judge.

This would make it harder, if not impossible, for Central American border children to pass the initial screening test for asylum hearings.

POLITICO quotes Goodlatte as sayibng that 92 per cent of asylum applicant are clearing the initial screening hurdle and gaining the right to asylum hearings before an immigration judge. If his proposed change goes into effect, the number may rapidly drop toward zero, because immigration judges are trained to determine whether someone has meet this strict legal standard. DHS border screening officers have no such expertise.

Therefore, Goodlatte's proposal amounts to another way of abolishing the TVPRA's guarantee of a full asylum hearing to Central American border children who can show a credible fear of persecution.

The even bigger danger in Goodlatte's proposal is that it could spill over into the way credible fear is interpreted in all asylum cases, not just the ones involving Central American children seeking refuge from gang violence.

POLITICO quotes Eleanor Acer of Human Right First as saying:

"A statutory change to the credible fear standard would undermine this country's global commitment to the persecuted and put lives at risk..."

And the same report quotes Law Professor Bill Ong Hing of the University of San Francisco as follows:

"You don't want to make a mistake when it comes to asylum...To me it's really disappointing to talok about setting up in a way that you don't find credible fear in so many cases."

He added:

"I'm very disappointed in the Obama administration. They're buying into the rhetoric of the critics of the border [children] that these kids couldn't possibly have valid claims for asylum..."

Even for those who (unlike myself) believe that most of these these children will be ultimately unsuccessful in showing that they have a credible fear of persecution or that they are members of a PSG, letting them have their day in court as provided for in our current law is the best way to uphold the values of America's justice system and its commitment to protecting people from every part of the world who are in danger of persecution in their own countries.

These protections need to be made stronger, not weaker.