“No Entry!” Photo: Rabiem22

June 12, 2018; Washington Post

After a nine-year waiting period, Aminta Cifuentes was finally granted asylum after escaping Guatemala from her abusive husband in 2014. The Board of Immigration Appeals, in granting asylum, established that asylum can be granted on the basis of domestic violence. This was solidified in 2016 by the Justice Department. However, in a statement released on June 11th, Attorney General Jeff Sessions stated that the decision is to be overruled and “should not have been issued as a precedential decision” for asylum. Sessions also added that claims of gang violence will not qualify for asylum under the federal law.

Sessions’ reason for the policy repeal is based on his argument that domestic violence victims are not a part of a “particular social group.” According to precedent and his statement, this means they must have membership in a group that “share[s] a common immutable characteristic” and “membership in the group is a central reason for her persecution.” Federal law requires asylum seekers to show that “race, religion, nationality, membership to a certain social group, or political opinion” was foundational to their persecution. However, in Cifuentes’s case, the Board of Immigration Appeals found her to be a member of the group “married women in Guatemala who are unable to leave their relationship,” also citing that Guatemala has a culture of “machismo and family violence,” including spousal rape and unenforced domestic violence laws and ordinances.

Sessions denies this characterization of domestic violence, claiming that private actors are the ones inflicting violence and the group membership is not a central reason for the abuse. Sessions wrote that the asylum statute “does not provide redress for all misfortune.” The decision should elicit an immediate outraged response from so many movements and sectors of society.

Retired immigration judges and former members of the Board of Immigration issued a response within hours:

As former Immigration Judges with decades of experience at the trial and appellate level, we consider the Attorney General’s decision an affront to the rule of law. As former judges, we understand that in order to be fair, case law must develop through a process of impartial judicial analysis applying statute, regulations, case law, and other proper sources to the facts of the case. The life-or-death consequences facing asylum applicants makes it extremely important to keep such analysis immune from the political considerations that appointed cabinet members are subject to.

The BIA’s acknowledgment that a victim of domestic violence may qualify for asylum as a member of a particular social group was the culmination of a 15-year process through the immigration courts and BIA. The issue was certified by three different Attorneys General (one Democrat and two Republican), who all chose in the end to leave the final determination to the immigration judges and the BIA. The private bar, law enforcement agencies (including DHS), the BIA, and the circuit courts all agreed with this final determination. What is more, a person who suffers persecution that is perpetrated by private parties whom their government cannot or will not control, is equally eligible for asylum protection under both US law and international refugee treaties.

For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct. Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them. We hope that appellate courts or Congress through legislation will reverse this unilateral action and return the rule of law to asylum adjudications.

For activist women who have spent decades confirming the systemic supports for violence against women, the decision should be seen as a cruel gauntlet to reinforce that point. In a society that culturally supports and systemically fails to protect women who are subjected to domestic violence, it is a status issue where one group is at particular risk. The Centers for Disease Control and Prevention uses a social-ecological model, a framework for violence prevention that focuses not only on the individual and relational factors that impact violence perpetration, but also the “complex interplay between individual, relationship, community, and societal factors.” While individuals of all genders feel the impact of domestic violence, the US Bureau of Justice Statistics found that 85 percent of domestic violence victims are women. Sessions and the Department of Justice are erasing social context in their asylum decision, which is in line with other decisions made and proposed by the administration regarding women’s health and safety, concerning family planning philosophy, the “gag rule,” wage equity, and contraception access.

Paul Wickham Schmidt, a former immigration judge and former chairman of the Board of Immigration Appeals, wrote that Sessions is hoping to encourage immigration judges to “say no as quickly as possible” and “speed up the ‘deportation railway’” of the Trump administration.

There had been a rise in asylum claims in 2014 and 2015 after the precedential ruling allowing domestic violence claims for asylum. However, studies show that most of the rise in asylum-seeking was due to a rise in violent crime in El Salvador, Guatemala, and Honduras. Nearly 62 percent of all applicants were denied asylum in 2016, according to Syracuse University.

In response to Sessions’ policy change, Karen Musalo, director for the Center for Gender & Refugee Studies at the University of California Hastings College of the Law stated, “If we say in the year 2018 that a woman has been beaten almost to death in a country that accepts that as almost the norm, and that we as a civilized society can deny her protection and send her to her death? I don’t see this as just an immigration issue…I see this as a women’s rights issue.”—Ember Urbach