** LEGAL UPDATE **
Attorney General Merrick Garland has announced that he is restoring vital protections for victims of severe domestic violence by overruling the Trump-era decision known as Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018.
With Matter of A-B-, then-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. Although it was not a blanket denial of all gang- or domestic violence-based asylum claims, it made succeeding far more difficult.
The remainder of this article will provide historical information on what Matter of A-B- did. With it gone, however, asylum law is returned to what it was before the Trump Administration.
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 made use of this power multiple times, 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.
The Sessions decision had far-reaching implications for all asylum cases involving domestic violence, gang violence, and gender-based persecution. It was widely criticized by immigration attorneys, former immigration court judges, and domestic violence advocates, who were concerned that it would turn back the dial on the progress that women's rights have made in the last few decades in the asylum context.
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 the Sessions 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 attempted to narrow the definition of persecution in his decision. Under established U.S. asylum law, asylum seekers must show that they were persecuted either by their 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 were then expected to 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 would have no longer been enough.
Sessions burdened 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, his emphasis on internal relocation made asylum adjudicators more likely to find that internal relocation is viable.
This meant that, if the asylum seeker's home country had regions that are substantially safer for the asylum seeker than their home, relocation could have been seen as a viable alternative, thus leading to a denial of asylum. However, if the asylum seeker could establish past persecution or a well-founded fear of persecution, the burden to show that internal relocation is a more viable alternative would fall to the U.S. government.
Prior to the Sessions 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 "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 worried that this expansive decision would 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 made it much easier for those inclined to deny asylum claims to do so.
Anyone with a domestic-violence based asylum claim that's currently in the system should immediate re-evaluate their paperwork and briefs in light of the Garland decision overturning Matter of A-B-. It might even be possible to reopen past cases, but further guidance from the U.S. government will be required first.
Effective Date: June 16, 2021