On Monday, U.S. Attorney General Jeff Session took the extraordinary step of overturning a decision by the Board of Immigration Appeals (BIA) of the Justice Department that granted asylum to A.B., a Salvadorian woman who fled to the United States to escape from domestic violence.
“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by nongovernmental actors will not qualify for asylum,” Sessions wrote in his decision. It had been firmly established since 2014 that fleeing from physical abuse occurring in a country that is unable or unwilling to protect victims of domestic violence was grounds for asylum.
“An alien may suffer threats and violence in a foreign country for any number of reasons relating to her social, economic, family or other personal circumstances. Yet the asylum statute does not provide redress for all misfortune,” Sessions wrote. He asserted that domestic violence should be considered “private violence” and the asylum statute covers only violence against members of a “particular social group.”
Attorneys General going back to the 1990s have ordered immigration judges to consider whether the women of particular countries should be considered a “particular social group” for purposes of granting asylum in cases of domestic violence.
According to a public letter issued Monday in response to Session’s decision, signed by 15 former immigration judges and members of the BIA,
The BIA’s acknowledgment that a victim of domestic violence may qualify for asylum as a member of a particular social group [in 2014] 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… 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.
Dan Vondra, an Iowa City attorney specializing in immigration law, said the reason Session chose to intervene in the case of A.B. is obvious.
“It’s not a legal decision, it’s a political decision with some legal language attached to it. That’s pretty obvious,” Vondra said. “It’s such a break with the prior government position that it’s really only explainable as a political decision. It’s Sessions advancing Trump’s political position instead of following established case law.”
Vondra said Sessions’ decision is unlikely to have any effect on anyone already granted asylum, but it will on those still going through the years-long application process.
“We’ve got cases coming up for hearings with the immigration judge, and now we’ll have to look back at the facts of their cases and see if we need to reformulate how we address the issue of their particular social group,” Vondra said.
“It’s still not clear exactly how the legal and procedural impacts of Sessions decision will play out,” he added. “But it is clear there’s a risk that people who shouldn’t be deported will be deported, and they’ll be sent back to their abusers.”
But Vondra cautioned against “reading the decision too broadly.”
“It’s a huge step backwards in terms of development of the law that’s been going on since 1999,” he said. “It will definitely be harder for women fleeing abuse to be granted asylum, but not impossible. I wouldn’t want anyone to think they shouldn’t file for asylum if they are a victim of domestic violence.”
“As lawyers, our job is to work around bad law.”