This week, Attorney General Jeff Sessions decided in the case Matter of A-B- that victims of domestic violence no longer qualify for asylum protection in the United States. Since taking office, Sessions has used his position to rewrite U.S. immigration and asylum law. The little-known, and historically cautiously-used, power of the Attorney General to select immigration cases and issue his own decisions is especially dangerous in the hands of Sessions, a man who by his own words clearly wants to limit the rights of persecuted people to seek asylum.
The central legal dispute in domestic violence asylum claims is whether victims face persecution based on one of the protected grounds enumerated in the international Refugee Convention: race, religion, nationality, political opinion or membership in a particular social group. The dispute was resolved, in large part, by a landmark 2014 Board of Immigration Appeals (BIA) case, Matter of A-R-C-G-, which held that victims of domestic violence could be members of a particular social group through their shared nationality, gender, status in a marriage or domestic relationship, and other factors.
The law regarding these claims evolved through decades of jurisprudence by immigration judges and the BIA. The Matter of A-B- decision erases progress that was hard-earned through nearly two decades of advocacy and legal work. In the A-B- case, Sessions states that Matter of A-R-C-G- was improperly decided and that “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum” because they cannot show membership in a particular social group. His decision means that women will be forced to return to situations where they have shown, and the U.S. government acknowledges, they will face psychological and physical abuse, sexual abuse, rape and murder, based upon gender and relationship status.
Even after the BIA’s landmark decision in Matter of A-R-C-G-, it was hard for women to win asylum claims based on domestic violence. The asylum seeker had to prove many difficult aspects of her case—that her relationship with her persecutor was such that it qualified her for protection, the motivations of her persecutor (which are notoriously difficult to prove), that the harm she suffered or feared was sufficiently severe, and that her own country would not protect her if she returned.
The women who sought asylum in the U.S. based on domestic violence had to recount the most traumatic events of their lives in a foreign court, to people they did not know, and faced tough cross examination by government attorneys arguing their claim should be denied. In my experience, most women break down on the stand during their testimony and cross examination because what they have suffered through is so hard to relive.
Just last month I represented one such domestic violence survivor in Arlington Immigration Court. My client testified credibly and presented substantial evidence that her ex-partner had attacked her with a machete in front of her son and several witnesses. Even though he told her he would kill her, he was released from jail only a few days later. The police had already failed to protect her from his attacks several times and he vowed he would eventually kill her for trying to leave him.
In this case, the attorney for the government agreed that my client’s supporting evidence and testimony were credible but argued her case still was not viable because the harm she feared was not the kind meant to be protected under our asylum laws, similar to the arguments made by Sessions in Matter of A-B-. The judge has not made a final decision and is still weighing the merits of my client’s case. It is likely that she and the many other women who are waiting to have their cases decided or heard will lose hope that they will ever be safe.
Instead of moving backwards, the U.S. asylum system needs to progress even beyond where it was before this decision. To truly capture the spirit of the Refugee Convention, women should be recognized as a particular social group meriting protection from persecution under our asylum laws, as they are in other countries like Canada and the United Kingdom. Persecution of women and girls is one of the most serious human rights issues the world faces today and our asylum laws need to reflect that reality.
This past May, Sessions had suggested that victims of domestic violence can seek asylum in the U.S. but cannot in other countries like Canada. In fact, victims of domestic violence have long been able to claim asylum in Canada since 1995, and the U.S. is generally less progressive in its interpretation of the Refugee Convention for gender-based persecution than other developed nations.
Because of this decision, U.S. asylum law has regressed and no matter what, it will take many years to eventually repair the damage Sessions has already inflicted on our asylum system. In the meantime, the terrible reality is that there may be no repair for the damage his decisions will have on countless persecuted women.