By Dina Haynes | June 18, 2018
In June of 2018, after tortuous weeks of hinting, U.S. Attorney General Jeff Sessions reversed Matter of A-R-C-G, a 2014 case recognizing some types of domestic violence claims as a valid basis for asylum in the U.S. Utilizing a rarely employed mechanism, the AG certified a case, Matter of A-B-, to himself in order to instruct Immigration Judges under his authority to cease considering domestic violence claims legally sufficient for asylum. The case, technically a Memo from the Attorney General to Immigration Judges, appears at first blush to merely reverse A-R-C-G-, but Sessions went much further. The decision is racist, misogynistic, and dehumanizing. It bears all the ugly hallmarks of the world’s rising nativist leaders.
Indeed, in recent weeks, the Trump Administration had undertaken a paternalist campaign in which it increasingly claimed an interest in protecting women and children as justification for rounding up “animals” suspected of being in gangs, separating children from their asylum-seeking parents at U.S. borders while jailing the parents for “illegal immigration” or smuggling their own children, denying asylum to women forced to cook for rebel or guerilla groups claiming they provided “material support” to those groups, and withdrawing domestic violence and gang threats as a basis for seeking asylum.
Anticipating these moves, the Administration had already begun removing information on gender from Department of State Country Condition Reports, used to provide evidentiary support in most gender-based asylum claims.
The immigration legal system has lagged behind other U.S. courts’ understanding of domestic violence and sexual assault. For example, until relatively recently, immigration law tended to view rape as an opportunistic crime, and therefore not the basis for an asylum claim, regardless of whether the rapist indicated that the rape was intended to “punish” a particular woman for her own or for a family member’s actual or imputed political opinion. Domestic violence claims, too, were viewed as “private matters” with no bearing on asylum claims. The asylum claim brought by Rodi Alvarez, litigated for twenty years, changed that. A person seeking asylum in the U.S. must put forth a claim showing a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. When the persecutor is a non-state actor, the applicant must prove that her home government is unable or unwilling to protect her. Lawyers for Ms. Alvarez had argued that domestic violence victims might constitute “a particular social group.” Judges, as well as Attorneys General Janet Reno and Eric Holder, agreed. With Sessions’ move in Matter of A-B-, the country has reversed course.
The ramifications of this unilateral move are wide-ranging.
Not only does Sessions state, “generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” he also drops a bomb of a first footnote: “Accordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution.”
Credible fear interviews are the threshold interviews that take place, as a matter of law under the Immigration and Nationality Act, at or near the border. In them, an asylum seeker is either determined to have a credible fear of persecution and allowed to remain (albeit detained in increasingly draconian private prison facilities and now separated from their children) in order to file for asylum, or they are refused entry and removed from the country.
Taken together with Sessions’ announcement that the Administration will move Immigration Judges and government attorneys (who work for the Department of Homeland Security, not for the AG’s office) to the border to ensure that no one claiming only domestic violence or gang violence is permitted to seek asylum in the US, and with his concurrent move toward prosecuting asylum seekers for “illegal entry” and “smuggling” their own children, Sessions has effectively ended a broad swath of asylum claims.
The LGBTQ community and other groups vulnerable to private, non-state actor violence, are also rightfully concerned. For example, in Matter of A-B-Sessions states: “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.” For many LGBTQ asylum seekers and others who can demonstrate that unwillingness or inability to protect them, but would also apply for asylum under the “particular social group” category, this language potentially means the difference between having a viable asylum claim or none at all.
Finally, as with so many other decisions enacted under the Trump Administration, this decision is based in racism. The attorney and amicus curie arguing for A-B- cited to myriad statements made by Sessions when he was a Senator and then later as AG that highlighted his particular animus for Central American asylum seekers. Sessions responded to those claims in his decision, stating: “The respondent and some amici complain that I have advanced policy views on immigration matters as a U.S. Senator or as Attorney General, but the statements they identify have no bearing upon my ability to faithfully discharge my legal responsibilities in this case.” Sessions is wrong; they do have a bearing. His longstanding and particular antipathy for Central American women and children, whom he views as flooding the U.S., was clear. When he stated that the law allowing domestic violence and gang-violence claims, which had been law for the past four years, had allowed the U.S. to “encompass most Central American domestic violence victims,” he meant that he views it as opening the floodgates to allow more Central American women and children than make him comfortable. With Matter of A-B-, Sessions reclassifies domestic violence as a private family matter.
