On June 11, Attorney General Jeff Sessions vacated a 2016 decision by the Board of Immigration Appeals that could have significant consequences for victims of domestic abuse and gang violence who are applying for asylum in the United States. The board had ruled in favor of a woman from El Salvador who had applied for asylum in order to seek refuge from her abusive husband. Typically a decision from the Board of Immigration Appeals is binding as the board is considered the highest government authority on immigration law. However, since all immigration courts are part of the Department of Justice, the attorney general has the power to assign himself cases. Cases vacated by the attorney general usually end up back in the federal appeals court. In the case of this particular Salvadoran woman, it will return to the immigration judge who initially denied her application. If the judge denies her again, she will be able to appeal once more.
In order to successfully appeal for asylum in the United States, applicants have to demonstrate that they suffered from persecution in their home countries on the basis of “race, religion, nationality, political opinion, or their particular social group”. Victims of domestic violence usually claim persecution under the last category, a particular social group. If so, they must “share a common immutable characteristic” with other members of their group, and their group must be “socially distinct within the society in question”. Furthermore, if their persecutor is not affiliated with the government, the asylum seeker must prove their government is unwilling or unable to protect them from said persecutor. After the 2016 decision granting asylum to the Salvadoran woman fleeing domestic violence, judges in the Obama administration followed the precedent that allowed other woman to claim similar fears of domestic abuse. Attorney General Sessions’ decision to vacate this ruling will make it significantly harder for those sorts of arguments to prevail in immigration court.
As a reason for his decision, Jeff Sessions emphasized that “the asylum statute does not provide redress for all misfortune” and that although he sympathized with the woman involved, the original language did not intend for “membership in a particular social group” to become a catch-all for unfortunate situations. Furthermore, he believes that the criteria for granting asylum has become too broad and that narrowing the scope of what constitutes a credible fear would help with the growing backlog of 700,000 cases currently making their way through the courts. Critics of the Trump administration, on the other hand, suggest that this is just another effort to deter illegal immigrants from coming to the United States by making the process of applying for asylum more difficult. Furthermore, they complain that this decision has overturned years of work towards providing abused women better protection under the law. Others suggest that Sessions’ intervention in this case was an abuse of power, and that immigration courts need to be independent from the Department of Justice.
For more on this:
Katie Benner and Caitlin Dickerson, Sessions Says Domestic and Gang Violence Are Not Grounds for Asylum, The New York Times
Maria Sacchetti, Attorney General Jeff Sessions says victims of domestic, gang violence ‘generally’ won’t qualify for asylum, The Washington Post