** LEGAL UPDATE **
** IMPORTANT NOTE: The information contained in this legal update has been superseded by a federal court decision in December, 2018. A federal judge in the case of Grace v. Whitaker held that Sessions's decisions violated both the Administrative Procedure Act (APA) and the Immigration and Nationality Act.
On June 11, 2018, Attorney General Jeff Sessions reversed years of immigration rulings and legal precedent to declare that immigrants who flee domestic violence or gang-related violence in their home countries are in most cases ineligible for asylum. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
Under a rarely used federal statute, the U.S. attorney general has the power to refer cases to himself that have previously been decided. Sessions has made use of this power multiple times already, to unilaterally change the landscape of U.S. immigration law.
In March 2018, he referred himself a case called Matter of A-B-, which had previously been decided in 2016 by the Board of Immigration Appeals (B.I.A.). In Matter of A-B-, the B.I.A. had approved asylum for a Salvadoran woman who had been raped, abused, and nearly killed by her husband.
In a 30-plus page sweeping decision, AG Sessions overruled the B.I.A.’s ruling and remanded (sent the case back) to an immigration judge with instructions to deny the applicant’s asylum claim.
Once the immigration judge issues his decision, the lawyers for the woman will likely appeal the case to the B.I.A., and then the federal circuit court (in this case, the Fourth Circuit). If circuit courts don’t agree with each other, and thus split in their interpretation of A-B-, the issues may end up before the Supreme Court. For now, though, Sessions’ decision is considered good law.
The Sessions decision has far-reaching implications on all asylum cases involving domestic violence, gang violence, and gender-based persecution. The decision has been widely criticized by immigration attorneys, former immigration court judges, and domestic violence advocates, who are concerned that it will turn back the dial on the progress that women’s rights have made in the last few decades in the asylum context. Asylum seekers from Central America are expected to be hardest hit by this decision.
The Attorney General’s decision overrules several years of legal precedent for victims of violence who seek asylum in the United States. His decision has modified several previously established areas of asylum law including the definition of a particular social group, how an asylum seeker can demonstrate that his or her home government is unwilling or unable to provide protection, and to what extent the possibility of internal relocation is a barrier to an asylum grant.
In order to qualify for asylum, an applicant must show persecution on the basis of race, religion, national origin, political opinion, or membership in a particular social group. This last category, membership in a particular social group, is the one under which victims of domestic violence, gender-based violence, and gang violence have successfully claimed asylum. In Matter of A-B-, Sessions criticized the idea that domestic violence victims could be considered distinct members of a particular social group.
Prior to Sessions’s decision, immigration courts and the B.I.A. had acknowledged a basis for asylum for victims of domestic violence as members of a particular social group. Most notably, in the landmark 2014 case Matter of A-R-C-G-, the Board of Immigration Appeals ruled that “married women in Guatemala who are unable to leave their relationship” are a particular social group for purposes of obtaining asylum and withholding of removal.
This case provided a framework for many women, particularly from Central American countries, to pursue asylum in the United States. However, Sessions explicitly overruled A-R-C-G-, claiming that victims of domestic violence did not qualify as members of a particular social group.
Sessions claimed that a particular social group must exist independently of the persecution the asylum seeker suffered, and that the group must be recognized by society at large. This determination muddles several elements of an asylum claim, by confusing the concept of "nexus" with "persecution." The Attorney General makes the broad claim that victims of domestic violence or gang violence tended to be victims of a personal vendetta by individual bad actors, rather than persecuted based on their membership in a particular social group.
According to the Attorney General, victims of domestic violence do not meet the requirements for a particular social group. Instead, he claimed that such victims were simply “a description of individuals sharing certain traits.” (Amicus briefs submitted by several parties refuted the assumption by Sessions that these victims were not viewed by society as a cognizable group).
The Attorney General also narrowed the definition of persecution in his decision. Under established U.S. asylum law, asylum seekers must establish that they were persecuted either by the government or that the government was unwilling or unable to protect them from persecution by a private actor. The persecution can therefore either be defined by government action or government inaction.
Sessions reworked this definition by including an additional element. He stated that, when the harm is at the hands of a nongovernmental actor, the applicant must show that the government condoned the behavior or demonstrated a complete helplessness to protect the victim. As justification, the Attorney General stated that “the mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”
Applicants must now meet an extremely high standard to establish persecution. Documented police reports showing that the victims sought protection from the government and that the government failed to act will no longer be enough.
The Attorney General burdens asylum seekers further by stating that “the Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.” While this is not a divergence from existing law, Sessions’s emphasis on internal relocation may make asylum adjudicators more likely to find that internal relocation is viable.
This means that, if the asylum seeker’s home country has regions that are substantially safer for the asylum seeker than their home, relocation may be seen as a viable alternative, thus leading to a denial of asylum. However, if the asylum seeker can establish past persecution or a well-founded fear of persecution, the burden to show that internal relocation is a more viable alternative falls to the government.
Prior to Sessions’s decision, victims of gang violence had also successfully claimed persecution on the basis of membership in a particular social group, for example as "teenage boys who refuse to join gangs," or "young women who are targeted by gangs for sexual violence."
While the likelihood of success for victims of gang-based violence varied by court jurisdiction, evidence of persecution based on gang violence was normally sufficient for asylum seekers to pass their credible fear interview and remain in the U.S. while their case was pending.
However, Sessions stated that “[g]enerally, claims by aliens pertaining to domestic violence or gang violence. perpetrated by non-governmental actors will not qualify for asylum.” He overruled A-R-C-G-, as well as “any other Board precedent to the extent those other decisions are inconsistent with the legal conclusions set forth in [his] opinion.”
Many advocates worry that this expansive decision will not only curtail domestic violence and gang-based violence bases for asylum, but could be read broadly to further curtail asylum claims based on sexual orientation, gender, or child abuse.
The Attorney General further claimed that few claims [of gang violence or domestic violence] would satisfy the legal standard of having a credible fear of persecution in order to establish their asylum claim in an attempt to curtail asylum applicants at the very earliest stages of their asylum process. He made this statement in a footnote, which is considered “dicta,” or nonbinding. Nonetheless, Sessions has made it much easier for those inclined to deny asylum claims to do so.
The Attorney General took aim at several key areas of asylum eligibility in his decision, making an already uphill battle to win asylum even more difficult. Many immigration advocates have already promised to challenge the Attorney General’s decision in Matter of A-B-.
Asylum applicants should keep in mind that Sessions’s decision in Matter of A-B- is not a blanket denial of all gang- or domestic violence-based asylum claims. Nonetheless, it does make it far more difficult to succeed.
If you are seeking asylum, either affirmatively (at the asylum office) or defensively (in immigration court), or you are awaiting a credible fear interview, be prepared to modify your application in order to meet the new standard.
If you have already submitted an asylum application based on domestic violence, gang violence, or any of the other grounds articulated here, be sure to consult an immigration attorney to help make any necessary modifications in your case. Asylum seekers can also review the article “Legal Strategies for Victims of Gender-and Gang-Based and Similar Forms of Persecution After AG Decision in Matter of A-B-“ for a discussion of potential legal strategies.
Effective Date: June 11, 2018