Sessions rewrites asylum law to quash domestic violence victims’ best chance at safety

He took care to remind immigration judges, in person, that they have to do as he orders.

Attorney General Jeff Sessions informed the nation's immigation judges he is changing how they process asylum cases in a speech Monday. CREDIT: Alex Wong/Getty Images
Attorney General Jeff Sessions informed the nation's immigation judges he is changing how they process asylum cases in a speech Monday. CREDIT: Alex Wong/Getty Images

People seeking refuge from intimate partner violence and gang violence no longer qualify for official asylum in the United States, Attorney General Jeff Sessions ruled Monday.

The sweeping decision could also bar other victims of what Sessions called “private crime” from using their home country’s failure to protect them from their abusers as the basis for an asylum claim. It is the second time in a month that Sessions has personally rewritten immigration rules through the attorney general’s little-used statutory authority to refer cases to himself.

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Asylum claims “pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” Sessions wrote in the decision. “While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum….in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.”

Though that might seem to leave wiggle-room, DHS Watch’s Ur Jaddou suggested Sessions is obligated to leave some technical gray area here to avoid giving any future lawsuits challenging his policy extra traction.

“He can’t say, ‘there will never be a case,’ ‘there is no particular social group for gang or domestic violence cases,’ because that would be creating a law and he can’t do that,” Jaddou said. “But what he’s signaling to his judges is to keep a really high bar, don’t try to fit some facts in to make it anything less than a very high bar.”

The case, referred to as Matter of A- B-, involves a Salvadoran woman who sought asylum after fleeing abuse and death threats from her spouse and finding the police unwilling or unable to do anything about it. As a legal matter, though, it hinges less on the heavily-redacted details of her treatment in her homeland than on whether or not battered women and other violent crime victims from Central American countries where police corruption and gang violence leave them without protection can constitute a coherent social group under asylum law. Sessions also overturned separate cases where judges had found that, for example, “married women in Guatemala who are unable to leave their relationship” counted as a group for asylum purposes.

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The ruling doesn’t just invalidate those prior designations, but discourages judges from making any similar findings in the future.

“If I’m a judge, would I be afraid?” DHS Watch’s Jaddou said. “Think about that. If I’m a judge, would I be afraid now to have that case that essentially defies this decision?”

Many immigration judges have found that victims of gang violence, domestic violence, and other systemic perils that don’t have the clear-cut group identity dynamics of LGBTQ persecution nonetheless qualify a person as a member of a “particular social group” under asylum law if their home government is sufficiently complicit in that systemic violence. By terming it “private violence” when he referred Matter of A- B- to himself earlier this year, Sessions hinted he was looking for a reason to reject that series of decisions. The case he plucked out involved a reversal on appeal, which gave him the opportunity to take over the case and use it to singlehandedly rewrite asylum procedures.

He announced the changes during an unusual speech to the annual training conference of the Executive Officer for Immigration Review (EOIR). With almost every Immigration Judge in the country arrayed before him, the attorney general instructed them to shrink the parameters of asylum review when they return to their courtrooms after the three-day conference in Virginia.

“It will be your duty to carry out this ruling,” Sessions told the group. Hours later, the Department of Justice (DOJ) published a decision immigration lawyers and migrant rights advocates have feared for months.

Sweeping, circular logic

The decision has an air of circular logic to it, requiring judges to reject asylum claims from a crime victim unless they can prove they were targeted because they were part of some other group than that of “crime victims.” They must be members of “a particular and socially distinct group that exists independently of the alleged underlying harm,” Sessions wrote.

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“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,” Sessions wrote. “An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior….[and] that the government condoned the private actions or demonstrated an inability to protect the victims.”

Sessions also ordered that if an asylum claims fails any one point of the complex validity test judges and other immigration officials apply, “an immigration judge…need not examine the remaining elements” of the claim.

Sessions said such new restrictions for asylum-seekers are necessary because too many of them are making frivolous claims of persecution, which he supported by saying that immigration judges have found merit in just 20 percent of total asylum claims. But that’s a liar’s stat, generated by comparing the apples of formal immigration court rulings of merit to the oranges of total claims filed. Many, many claims never get a final ruling for a variety of procedural reasons. Roughly half of the time that a judge did actually rule on an asylum claim over the past five years, they found it meritorious.

The misleading assertion of an epidemic of bogus asylum-seekers is a stand-in for Sessions’ true logic here. In the same speech Monday morning, he asserted that the nation’s asylum law “was never meant to alleviate all problems— even all serious problems— that people face every day all over the world.” Domestic violence victims, gang violence victims, and political prisoners in a civil war may have “serious problems,” the nation’s top cop believes, but they are not problems worthy of assistance from the richest country on earth.

Marching orders, not friendly advice

The attorney general also took care to remind the judges that his decisions aren’t advice from a fellow lawyer but binding instructions from their one true boss. Though they are termed “judges” and wear robes behind a bench in court, the immigration judiciary is essentially a staff arm of the Attorney General rather than the independent arbiters that most envision when hearing their job titles.

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Sessions’ frank expression of expectations was jarring to retired immigration judge Paul Schmidt. When attorneys general addressed the training conference in the past, Schmidt said, they stuck to the kind of collegial rah-rah stuff common to executives addressing underappreciated staff — but also stressed an expectation of careful, diligent, and independent professional conduct.

“I’ve never seen an AG come and basically tell the judges they’re part of the border enforcement effort. It’s outrageous,” Schmidt said. “Whether they’re inside DOJ or not, this is supposed to be an administrative court that exercises independent judgment and decisionmaking. And he’s reduced to to where they’re little enforcement officers running around carrying out the AG’s border policies.”

Sessions did go briefly off-book on Monday to offer one conciliatory note, looking up from his notes after calling the current backlog in immigration courts “unacceptable” to acknowledge that it’s been a tougher problem than he expected. “We thought we could get those numbers down, but they’re not going down yet,” Sessions said, before returning to his prepared remarks. He did not acknowledge that his own policies have contributed to the swelling of the backlog, which hit an all-time high in May.

Sessions is redrawing lines more tightly atop an already perversely narrow system.

A separate ruling last Friday helps underline the severity of the limits on traumatized migrants’ rights to seek protection in the United States. In a decision pertaining to the immigration courts’ handling of those accused of providing “material support” to terrorist organizations abroad, the Board of Immigration Appeals decided even labor compelled with death threats counts as grounds to bar someone from the United States.

The Salvadoran woman whose appeals gave rise to the case had been married to a sergeant in El Salvador’s army during a bloody civil war there. Guerrillas kidnapped the woman and her husband, made her watch as he dug his own grave and was shot dead, then made her wash clothes and do other menial chores for the rebel fighters while in captivity.

This clothes-washing and death-avoiding makes her, in the DOJ’s immigration overseers’ eyes, a terrorist no better than the unnamed group — presumably the Marxist-Leninist revolutionary Farabundo Martí National Liberation Front (FMNL) — who killed her husband in front of her and forced her into servitude.

The board denied her appeals and used the case to set a broader line across all immigration courts. Violently coerced labor while imprisoned by a terror organization will permanently bar you from crossing the U.S. border to seek protection. If you try it, we’ll send you back to your captors — presumably after first taking your kids away from you, pursuant to Sessions’ new policy mandating all immigrants crossing the border without documentation be referred to criminal court and thus separated from any minors who accompanied them.

This piece has been updated with additional context about Sessions’ immigration policies and further perspective from immigration policy experts.