Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Wednesday, June 13, 2018

Attorney General Announces Domestic Violence No Longer Legal Basis for Asylum

NYT, Sessions Says Domestic and Gang Violence are not Grounds for Asylum

Attorney General Jeff Sessions on Monday made it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence, in a ruling that could have a broad effect on the flow of migrants from Central America.

Mr. Sessions’s decision in a closely watched domestic violence case is the latest turn in a long-running debate over what constitutes a need for asylum. He reversed an immigration appeals court ruling that granted it to a Salvadoran woman who said she had been sexually, emotionally and physically abused by her husband.

Relatively few asylum seekers are granted permanent entry into the United States. In 2016, for every applicant who succeeded, more than 10 others also sought asylum, according to data from the Department of Homeland Security. But the process can take months or years, and tens of thousands of people live freely in the United States while their cases wend through the courts.

Mr. Sessions’s decision overturns a precedent set during the Obama administration that allowed more women to claim credible fears of domestic abuse and will make it harder for such arguments to prevail in immigration courts. He said the Obama administration created “powerful incentives” for people to “come here illegally and claim a fear of return.”

Asylum claims have expanded too broadly to include victims of “private violence,” like domestic violence or gangs, Mr. Sessions wrote in his ruling, which narrowed the type of asylum requests allowed. The number of people who told homeland security officials that they had a credible fear of persecution jumped to 94,000 in 2016 from 5,000 in 2009, he said in a speech earlier in the day in which he signaled he would restore “sound principles of asylum and longstanding principles of immigration law.”

“The prototypical refugee flees her home country because the government has persecuted her,” Mr. Sessions wrote in his ruling. Because immigration courts are housed under the Justice Department, not the judicial branch of government, he has the authority to overturn their decisions.

“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,” he added. “Yet the asylum statute does not provide redress for all misfortune.”

His ruling drew immediate condemnation from immigrants’ rights groups. Some viewed it as a return to a time when domestic violence was considered a private matter, not the responsibility of the government to intervene, said Karen Musalo, a defense lawyer on the case who directs the Center for Gender and Refugee Studies at the University of California Hastings College of the Law.

“What this decision does is yank us all back to the Dark Ages of human rights and women’s human rights and the conceptualization of it,” she said.

Volokh Conspiracy, Jeff Sessions' Ruling Denying Asylum to Victims of Domestic Violence Highlights Arbitrary Cruelty of Immigration Policy

Attorney General Jeff Sessions recently issued a ruling denying asylum to female victims of domestic abuse and gang violence. His decision, which ruled against a Salvadoran woman who had been severely abused by her husband, concludes that such victims "generally" don't qualify for asylum under a federal law that grants asylum to any refugees who is "unable or unwilling to return to [her home country], and is unable or unwilling to avail . . . herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The decision overrules two prior Justice Department Board of Immigration Appeals decisions, which granted asylum to female victims of domestic abuse in Guatemala and El Salvador. Sessions' ruling is legally problematic. But, perhaps even more importantly, it highlights the arbitrary injustice of a policy that denies asylum to victims of horrible persecution as bad as that which falls within the scope of the rules.

The key legal question in the case is whether Salvadoran victims of domestic violence qualify as people with "a well-founded fear of persecution" based on their "membership in a particular social group." The phrase "particular social group" is far from precise. But, as Sessions recognizes, courts have generally defined it as a group "composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question." It should be obvious that women qualify as a group that shares "a common immutable characteristic," and that they are also a group that is "socially distinct" and "can be defined with particularity." It is true that gender is not completely immutable in an age of sex change operations. But it is surely sufficiently so to qualify under the rules. And you don't have to be a radical feminist to recognize that, in highly sexist societies like El Salvador and Guatemala, which have a "culture of machismo and family violence" (as one of the BIA decisions overruled by Sessions puts it), domestic violence against women flourishes in large part because of gender bias. And such bias helps account for the failure of the authorities to effectively curtail such abuse. Recognizing that does not require us to assume that all Guatemalan and Salvadoran men are sexist or violent, or that all law enforcement officials in those countries are misogynists, merely that such attitudes are sufficiently widespread in those countries that they account for much of the danger faced by female victims of domestic violence.

http://lawprofessors.typepad.com/gender_law/2018/06/attorney-general-announces-domestic-violence-no-longer-legal-basis-for-asylum.html

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