Jonathan P. Baird

On June 11, Attorney General Jeff Sessions drastically restricted asylum claims of those fleeing domestic and gang violence. While I think the decision is wrong for both groups, I find the restriction placed on domestic violence victims particularly shocking and heartless. Sessions’ ruling reflects an outdated and misogynistic understanding of domestic violence as “private violence”.

Sessions minimized domestic violence as a crime. He harkens back to a time when domestic violence was seen as a private matter between spouses, something outside the jurisdiction of courts and governments.

It is not an exaggeration to say Sessions’ ruling will return countless women to grave danger and possible death at the hands of their abusers.

Karen Musalo, a lawyer who represents domestic violence victims who seek asylum in the United States, responded to Sessions’ ruling:

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

Applicants for asylum to the United States must show they are persecuted because of characteristics such as their race, religion, political opinion or membership in a “particular social group”. Since 2014, the Board of Immigration Appeals had created legal precedent that allowed domestic violence victims to qualify for asylum as members of a “particular social group”.

The survivors of domestic violence could only qualify for asylum though if the violence rose to the level of “persecution” and if the government was unable or unwilling to protect them.

Sessions overturned this legal precedent when he personally intervened in the case of a Salvadoran woman known as Ms. A.-B. (her initials). Ms. A.-B. sought asylum in the United States after she had survived 15 years of physical, sexual and emotional abuse by her husband. During those 15 years, Ms. A.-B.’s husband beat her regularly, including when she was pregnant, and bashed her head against a wall.

Ms. A.-B. had moved to another Salvadoran town, had obtained restraining orders and had divorced her husband but the threats and violence continued. The ex-husband’s brother was a police officer and the government failed to protect her. She fled El Salvador in 2014 after her ex-husband threatened again to kill her and dump her body in a river.

When Ms. A.-B. initially went before an immigration judge who rarely grants asylum, she lost. However, she later won her case before the Board of Immigration Appeals. The Board ruled that the Salvadoran government had shown it was incapable of protecting Ms. A.-B. even after she moved to another town in El Salvador.

Before her asylum status was formally granted, Sessions intervened. He referred the case to himself for review and issued a new ruling. As Attorney General, Sessions has the power to intervene in cases to determine how immigration law is interpreted. He can issue decisions that serve as binding precedents for immigration judges.

In his Ms. A.-B. ruling, Sessions wrote that generally claims on domestic violence will no longer qualify for asylum and will not even reach the initial “credible fear” standard to allow an immigrant to have her claim heard by a judge.

Sessions is effectively closing the courtroom door and locking domestic violence victims out. As he would put it, victims of private criminal activity perpetrated by nongovernmental actors fail to meet the asylum standard.

His ruling could literally invalidate tens of thousands of pending asylum claims. Under immigration law, the rulings of the attorney general are binding on immigration judges unless they are reversed by a federal appellate court.

We must never forget that it was not too long ago that Americans did not view domestic violence as a problem worth talking about. If a man beat his wife, that was viewed as a private affair. Police and the public turned a blind eye. Abusers intimidated their victims into silence.

It has taken almost 50 years of feminist activism to change policies and attitudes about domestic violence. Through that long-term struggle, society came to see domestic violence as a public health and human rights concern – not a private issue. Sessions’ ruling is a dramatic step backwards. It misses the reality that the privacy of violence is exactly the shield abusers have used to escape the consequences of their acts.

Even before Sessions’ ruling, women who were victims of domestic violence were not guaranteed asylum. Their status as domestic violence victims only made them eligible to apply for asylum. In 2017, the national rate for the denial of asylum claims was 61%. What Sessions has done is make the process infinitely more difficult.

Whether Sessions’ ruling will withstand court challenge remains unclear. Even if a federal appellate court overruled Sessions’ Ms. A.-B. ruling, such a decision would only apply in the geographic area of that circuit court. Maybe a case will make it to the U.S. Supreme Court (and who knows what that outcome will be) but in the meantime, Sessions’ ruling will have a devastating effect.

You have to wonder what is next. Will Sessions attempt to roll back legal precedent for other victims of gender-based violence such as LGBT people, victims of female genital mutilation, and forced marriage who seek refuge in the United States?

We have come a long way from Emma Lazarus’s stirring words affixed to the pedestal of the Statue of Liberty:

“Give me your tired, your poor,
Your huddled masses
yearning to breathe free,
The wretched refuse of
your teeming shore.
Send these, the homeless.
tempest-tost to me,
I lift my lamp beside the golden door!”