Asylum Protection for Victims of Domestic Violence and Other Persecution in Jeopardy

Jeff Sessions's interest in certain aspects of U.S. immigration law worries advocates for victims of domestic violence and related forms of persecution.

** NOTE: The information contained in this legal update has been superseded by a federal court decision in December, 2018.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.

Concerns are rising within the immigration community about recent actions by Attorney General Jeff Sessions and what they mean for victims of domestic violence and other criminal activity who seek asylum in the United States.

In March 2018, Sessions “referred” to himself an asylum case that the Board of Immigration Appeals (B.I.A.) had decided in December 2016, called Matter of A-B-. In addition, he requested legal briefs from interested parties regarding whether “victim[s] of private criminal activity” could be members of a “particular social group” and thus could qualify for asylum protection.

Under U.S. immigration law, the Attorney General, as head of the Department of Justice, is able to “certify” (or refer) cases to himself and to reconsider decisions made by the B.I.A. In other words, he can step in and reshape the way U.S. immigration law is interpreted.

In the Matter of A-B- case, an immigration judge initially denied asylum to a victim of domestic violence, and the victim then appealed to the B.I.A. It decided (in December 2016) that many of the immigration judge's determinations in the case were "clearly erroneous" and upheld the asylum applicant's appeal. Sessions referred this December 2016 B.I.A. decision to himself and will make his own determination about the applicant's eligibility for asylum.

The Attorney General’s certification of this case, and the broad legal question he posed regarding victims of private criminal activity, suggests that asylum protection in the United States could soon be in serious jeopardy for a number of victims of persecution.

Background on Asylum for Victims of Domestic Violence and Gender-Based Persecution

Whether victims of domestic violence and related gender-based persecution can be granted asylum has been the topic of legal argument for decades. The main issue is that, to qualify as a “refugee” for asylum purposes, the applicant must prove a well-founded of persecution based on race, religion, national origin, political opinion, or membership in a particular social group.

But which of these five grounds could victims of violence in the home claim? “Particular social group” seemed the best bet, but it involved proving that the victims shared fundamental and/or immutable traits and were recognized by society as a group. Many judges and courts rejected this group definition.

In 2014, however, the BIA issued a major, precedential decision in Matter of A-R-C-G-, holding that “married women in Guatemala who are unable to leave their relationship” qualified as a 'particular social group' and were thus eligible for asylum protection. At last, the legal community had reason to believe that the matter was relatively settled, and that domestic-violence-based asylum claims could go forward.

In referring the Matter of A-B- case to himself, however, Sessions has raised legitimate fears that he will find that victims of domestic violence are not members of such a group and therefore can’t meet the standard for asylum approval.

Also, because Session asked for amicus (friend of the court) briefs regarding whether victims “of private criminal activity” could form a particular social group, other victims of gender-based persecution, such as female genital mutilation and sex trafficking, are in danger of losing asylum protections in the United States. (These forms of persecution are often carried out by private, non-government, actors.)

Concerns Regarding How Sessions’s Actions Might Affect Sexual-Orientation- and Gang-Based Asylum Claims

In addition to domestic violence and gender-based claims, other asylum claims that typically involve private actors and particular social groups could be at risk. This could include asylum claims based on persecution for one’s sexual orientation and of those based on persecution from gangs.

Potentially Affected Asylum Applicants: Consider Applying for Asylum as Soon as Possible, But Weigh the Risks

If you are not currently in removal proceedings and plan to apply for asylum affirmatively based on domestic violence or gender-based, sexual orientation-based, or gang-based persecution, you should consult an attorney immediately. You might want to file your claim for asylum quickly.

If you file soon, under the asylum office’s new “last in, first out” policy, you have a better chance of receiving an asylum interview before the Attorney General issues a decision in Matter of A-B-. All briefs in the case are scheduled to be filed before May 4, 2018. At the same time, filing now carries a risk, because if a decision is issued in Matter of A-B- while your case is pending, you could be denied under the new decision.

It remains unclear how broad Sessions’s decision will be or whether it will be appealed to a higher court, but it is likely to have negative consequences for asylum applicants facing harm from private actors.