The Trump administration is doing nearly everything in its power to ensure that life for asylum-seekers, particularly women, is hell.
On the ground, the Department of Homeland Security has doubled down on inhumane enforcement practices, like keeping pregnant women locked up in immigration detention and forcibly separating parents and children. Meanwhile, Attorney General Jeff Sessions has provided the legal justification for such practices: a “zero-tolerance policy” aimed at prosecuting every possible case of “illegal entry” on the southwestern border.
As the apparent ringleader of this program of state-sponsored trauma, Jeff Sessions is willfully blinding himself to the specific gendered issues faced by many migrants, especially those from Central America. Like Trump and DHS Secretary Kirstjen Nielsen, he sees large numbers of asylum claims not as what they are — the result of widespread desperation, especially by women fleeing abuse — but as evidence of “loopholes” in our immigration system that are being exploited by migrant families looking for free rides into the US. However, in his war on refugee women, Sessions has only been able to assist DHS in its systematic harassment of immigrant families; he hasn’t been able to, as Trump would put it, go “nuclear” on the asylum system by actually changing the parameters of who is eligible. That is, not yet.
As head of the Justice Department, Sessions is like the Supreme Court of immigration, only more powerful. He has the authority to, virtually at will, snatch up cases from the appellate level of the immigration court system and make precedent-setting pronouncements that widely affect how immigration judges and bureaucratic officials make decisions.
On March 7, Sessions announced that he was commandeering one such case — “the Matter of A-B-” — in order to, as he explained in a one-page declaration, consider “whether being a victim of private criminal activity” constitutes being part of a persecuted “particular social group” for purposes of granting asylum.
The anonymized A-B- from the case is a woman from El Salvador who endured more than a decade of beatings, death threats, and rape by her ex-husband. She first tried to escape the abuse by fleeing to another city in her home country, but after her ex-husband tracked her down, she decided to seek asylum in the US.
Although gang violence is the cause most often associated with the ongoing Central American migrant crisis, tied to that is the issue of rampant gender-based violence and impunity for abusers. According to the Migration Policy Institute, in 2013, El Salvador, Guatemala, and Honduras had the first, third, and seventh highest rates of gender-motivated killing of women in the world, respectively, yet less than three percent of such murder cases are resolved by the courts in those countries.
When A-B- was finally able to take her case to immigration court, a judge initially denied her asylum claim. However, the Board of Immigration Appeals found that that judge’s decision was “clearly erroneous” and reversed it. That’s when Sessions referred the case to his office for review.
We’re still waiting on Sessions’s official decision, but from the get-go, his consideration of A-B-’s case has been mired in opacity. For one, the awkward phrasing of his query makes little-to-no sense in the context of asylum law — persecution is persecution, no matter if it’s perpetrated by a “private” individual or a government, and no matter if it’s considered “criminal” or not. Furthermore, when nonprofit groups and DHS lawyers asked Sessions to clarify what legal question he was trying to answer shortly after he took the case, he refused, instead issuing a follow-up announcement that simply updated deadlines for interested parties to file friends-of-the-court briefings.
No one can be sure, but given the details of A-B-’s situation, many immigrants’ rights advocates believe that Sessions is trying to use this case to eliminate domestic violence (spousal or otherwise) as a form of persecution that can make one eligible for asylum — a conclusion that has prompted widespread alarm among the immigrants’ rights community.
Over decades, a solid wall of case law has been built up that protects domestic violence survivors’ ability to seek asylum (one amicus brief for the Matter of A-B- cites more than 40 cases dating back to 1987). Perhaps the most relevant precedent for A-B- was set in 2014, when the Board of Immigration Appeals considered the case of Aminta Cifuentes, a Guatemalan woman who fled to the US after her husband beat her on a weekly basis, raped her, threw paint thinner on her, and tracked her down when she tried to flee to another city in Guatemala. International law dictates that a country is obligated to grant asylum to migrants who can demonstrate a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion” in their home country, and in the 2014 decision, the court ruled that a culture of systemic abuse made it reasonable that Cifuentes could be considered part of a “particular social group” made up of “married women in Guatemala who are unable to leave their relationship.” This gave Central American women fleeing domestic violence a clear legal path to finding permanent refuge in the US — a path Sessions is now assumedly trying to destroy with a shady stroke of his pen.
There is a lot at play here. If Sessions decides that domestic violence victims are ineligible for asylum, many commentators are likely going to harp on his flagrant disregard for procedural norms. Indeed, this is critical: A group of 16 former immigration judges, the American Immigration Lawyers Association, DHS lawyers, and several civil society organizations have filed briefs outlining the many ways that such a decision would clearly run counter to precedent. It’s actually kind of remarkable how boldly Sessions is flying in the face of how all of this is supposed to work.
But in lieu of the spectacle of procedural madness, we the public must focus our direct attention on the incredibly vulnerable populations who have the most to lose from this decision. Sessions could unilaterally shut the door on thousands of women from Central America and across the world who have braved untold horrors to flee violence in their homes and chaos in their countries (chaos, I might add, the US has played a significant role in instigating) — women like Josefina, who took the bold step to pack up her youngest son and flee her violent and vindictive husband of 29 years, or Linda, who endured immigration detention and years of uncertainty so she wouldn’t be deported back to abusive ex-boyfriend.
Or like Laura, who was killed by her abuser after Customs and Border Protection officers ignored her pleas to not send her back to Mexico.
See, what Sessions and his ilk refuse to understand is that, rather than loopholes, the asylum system is riddled with cracks through which battered women and other migrants fleeing systemic violence slip — to often disastrous ends.
To find evidence of cracks in the asylum system, one needs to look no further than the events of A-B-’s case. The erroneous decision made by the immigration judge, V. Stuart Couch, to initially deny A-B- asylum was no anomaly: A group of immigration lawyers who reviewed all of Couch’s overturned decisions from last year has charged that he has been incorrectly “prejudging all claims that have a history of domestic violence, … quite literally copying and pasting language he used to deny other domestic violence victims asylum.” And there are sure to be more like Couch out there. Asylum approval rates vary wildly from district to district, and even from judge to judge — so much so that, in the same immigration courthouse (Los Angeles) over the same timeframe (2012-2017), one immigration judge approved 71 percent of asylum cases, while another approved only 2.5 percent, according to data from Syracuse University’s Transactional Records Access Clearinghouse.
Additionally, some of my former colleagues at the Columbia Journalism School’s Global Migration Project have been attempting to highlight cracks in the asylum system by compiling a database of migrants who were deported to their deaths. So far, the project has found upwards of 60 cases, including some involving immigrants or their families who warned officials that they would face harm if returned to their home countries. In a piece in The New Yorker highlighting some of the group’s findings, the director of the project, Sarah Stillman, mused that “perhaps the most formidable challenge for asylum-seekers is that … categories of protection aren’t well-suited to immigrants fleeing modern gang violence.” She then went on to quote legal scholar Blaine Bookey, who writes, “Whether a woman fleeing domestic violence will receive protection in the US seems to depend not on the consistent application of objective principles, but rather on the view of her individual judge, often untethered to any legal principles at all.”
For sure, “particular social group” is a vague term, and if you ignore precedent, it could be up for interpretation. Thus all it takes is a rogue, malevolent CBP agent, asylum officer, immigration judge, or attorney general who refuses to acknowledge that domestic violence is a systemic issue to send women to their demise.
Like so many top officials in the Trump administration, Jeff Sessions’s misogyny, his racism, and his contempt for the world’s most vulnerable are striking. Now, he is just a flick of the wrist away from slamming the door on thousands of women who, like A-B-, are fighting to stave off the oppressive abuses of men.