Recently, we wrote that Attorney General Jeff Sessions had referred three cases that were before the Board of Immigration Appeal to himself for opinion with the expectation that he would use them to set precedent that would make it harder for immigrants to seek asylum in the United States. On Monday, Sessions did as expected and decided in the case referred to as “Matter of A-B- “that the threat of gang violence or domestic violence is no longer grounds for asylum, and that the threat of violence must come from the government itself to make an applicant eligible for asylum.
“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” he wrote, and “generally” in that sentence raises red flags. On one hand, it sends a clear message to the immigration court judges that their boss does not want domestic violence claims approved, but it leaves Sessions wiggle room with no guidelines as to when it might be used.
His ruling overturns the asylum granted to a Salvadoran woman who had been raped and beaten multiple times by her then-husband. She turned to the Salvadoran government for protection and was denied. She got two restraining orders against her husband that were not enforced. After he attacked her with a knife, the local police told her, “If you have any dignity, you will get out of here.” She filed for divorce, but after it was granted her ex-husband and his police officer brother threatened her again, and her ex-husband assaulted her again. He continued to track her and threaten her until she fled the country.
According to Sessions, “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”
In his ruling, Session wrote:
an applicant for asylum on account of her membership in a purported particular social group must demonstrate: (1) membership in a particular group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; (2) that her membership in that group is a central reason for her persecution; and (3) that the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control. See M-E-V-G-, 26 I&N Dec. at 234–44; W-G-R-, 26 I&N Dec. at 209–18, 223–24 & n.8. Furthermore, when the applicant is the victim of private criminal activity, the analysis must also “consider whether government protection is available, internal relocation is possible, and persecution exists countrywide.” M-E-V- G-, 26 I&N Dec. at 243.
This doesn’t represent any change in the law, and countless asylum seekers fleeing domestic and gang violence have met these conditions in the past. Sessions’ decision is new in the deliberate, almost obtuse narrowness with which he considered the way the facts met the conditions. He takes domestic violence out of its social context and treats it as a dispute between two people rather than something with cultural roots, as reflected by the police force’s inability or unwillingness to help beyond advising A.B. to leave. He also treats the police and government as two separate entities, even though the police are the official organization charged with dealing with such matters.
Immigrants rights organizations will undoubtedly appeal Sessions’ ruling, which will affect tens of thousands of asylum claims, many by women. The undisputed facts on the ground in the countries asylum seekers are fleeing mean that A.B. and women like her face real threat of violence if not death if they return to their home countries, and the gang violence in El Salvador and Guatemala makes it life-threatening to denying asylum to those fleeing the countries. But because the fear of violence is from non-government actors, "few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution," Sessions wrote.
The decision is consistent with Sessions’ long-held belief that asylum seekers have been taking advantage of America for years, and because the Immigration Courts and the Board of Immigration Appeal fall under the Department of Justice, he has the authority to make such a ruling. His decision is also consistent with his efforts to remake the Immigration Court system into something closer to an assembly line, streamlined and quota-driven to produce more exclusionary results. “We have to be very productive,” Session said at a judges’ conference earlier this summer. “Volume is critical.”
Immigration Court judges are understandably unhappy with his approach. “Sessions is treating them like immigration officers, not judges,” said former judge Paul Schmidt in a recent story in The New York Times.
For immigration attorneys, Sessions decision means that attorneys can no longer count on obvious injustices and clear legal precedent to carry asylum hearings. They’ll need to present well-documented and well-formulated legal arguments that address the relevant conditions. They should include relevant political opinion arguments, such as the belief that women should be entitled to self-determination, and they should create a strong record so that these cases can be appealed all the way through to the Supreme Court if that needs to happen.
For those seeking asylum for themselves or loved ones, it’s now more important than ever to find immigration attorneys with a strong background in asylum law. For those who want to get involved, the Center for Gender and Refugee Studies have mapped out courses of action starting with sharing the news of Sessions’ decision and your disapproval on social media. Stay informed as well, not just of the headlines but the details on this case and others that will likely come up in the next few years (if not months!). Immigration law is all about details, so opposition via talking points doesn’t serve justice well.