Attorney General Jeff Sessions ruled Monday that immigration judges should not grant asylum claims on the basis of applicants being the victims of domestic violence or gang violence.
The Los Angeles Times first reported the ruling. Immigration courts are housed in the Justice Department, not the Judicial Branch, and Sessions as a result can set precedent for immigration judges dealing with asylum claims.
Sessions used that immense power to review the case of an El Salvadorian woman, known legally as A.B., who had been brutally abused her husband before she fled to the United States seeking asylum. A.B. told NPR last month that her husband had raped and beaten her. She said she was also beaten while she was pregnant.
On Monday, one of A.B.’s attorneys, Eunice Lee of UC Hastings’ Center for Gender & Refugee Studies, told TPM over the phone that Sessions’ ruling showed “a misapplication of law to the facts.”
“The ways in which he’s applying the legal standard seem to reflect basic misunderstandings of asylum law,” she said.
At issue is whether the victims of domestic violence and gang violence can be considered, respectively, members of a “particular social group,” a term used in both international and U.S. law.
An historic 2014 immigration appeals board decision broadened the definition of the term to include, in that particular case, “married women in Guatemala who are unable to leave their relationship.” A year later, Slate noted, the same appeals board broadened the definition to include victims of violence within a “domestic relationship.”
On Monday, Sessions declared that the 2014 decision “is overruled.”
“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” Sessions wrote in his ruling. “While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.”
“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,” he added.
Legal advocates told TPM the ruling displayed a decades-old view of women’s rights.
In one footnote of his ruling, for example, Sessions cited a 1975 decision by the Board of Immigration Appeals — the court housed in the Justice Department that reviews asylum-seekers’ appeals — to support his assertion that domestic violence can be considered a “personal matter” without a nexus to the asylum-seeker’s membership in a “particular social group,” a group that meets a list of criteria for asylum rights.
“Even if mistreatment is suffered at the hands of a government official, there is no nexus between the purported persecution and one of the grounds for asylum if the dispute is a ‘purely personal matter,’” Sessions wrote in the footnote before citing the so-called “Matter of Pierre,” a 1975 BIA ruling that a Haitian woman did not qualify for asylum protection even though her husband was an abusive high-ranking government official unlikely to be restrained by the Haitian legal system. “[T]he motivation behind her husband’s alleged actions,” the decades-old BIA ruling read, “appears to be strictly personal.”
“The Board has recognized this principle for decades, including in cases involving threats of domestic violence,” Sessions wrote.
“You know, our understanding of gender-based violence has developed in the interim 43 years, but there’s no recognition of this from the attorney general,” Deborah Anker, founder and director of the Harvard Law School Immigration and Refugee Clinical Program, told TPM in a phone call Monday.
“It’s extraordinary,” she added later. “He’s putting us back 43 years, not just in how we view refugee protection, but how we view women and how we view violence against women. I think that’s very concerning.”
In addition to the immediate impact on asylum-seekers’ rights, Sessions’ ruling itself revealed sloppy legal work that may show he pre-judged the case, Lee said.
“One of the things he did not do is cite to over 500 pages of voluminous record evidence that we submitted around the facts of Ms. A.B.’s claim to him directly, including additional expert affidavits, including additional testimony by Ms. A.B. herself, none of that is cited, not even once in his decision,” she told TPM.
“It appears to us that the [attorney general] pre-judged Ms. A.B.’s case,” she said.
Anker echoed that sentiment.
“The attorney general harped on what he considered scant evidence of society’s view of women as distinct,” she said. “But there is substantial evidence that women are targeted and deliberately unprotected in these countries — evidence that he just doesn’t address.”
Read Sessions’ ruling below:
This post has been updated.
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