Modern Asylum Law and Domestic Violence: A Primer

In recent weeks the migrant crisis at the border has become a heated topic and so the concept of ‘seeking asylum’ has been the subject of intense debates. Nevertheless, the concept is novel to most people who have not dealt with it personally or professionally, and therefore opinions are easily manipulated by agenda-driven news.

This post began as a Facebook conversation with a friend. It will seek to clarify what seeking asylum means and in particular explain why Attorney General Sessions’ recent decision to stamp out domestic violence as a basis for asylum was cruel and misguided.

Where did the modern concept of asylum come from?

Asylum law had its birth in the early 1950s. Its beginnings are somewhat cynical. There were two powers left standing in the world and both believed that refugees would pour from the other to its own borders. This was a welcome thought because such flight could be propagandized and used as ammunition by either side in a war of ideologies.

When the UN convened to define the terms for seeking status as a refugee, the U.S. advocated a definition of persecution based on Western values: political and religious freedom.

The Soviet Union on the other hand hoped that refugees would flee from the U.S. in pursuit of Marxist values: availability of food and healthcare, economic equality, etc. They pushed for this alternative definition.

The U.S. won this fight (which, incidentally, is why today Edward Snowden can seek political asylum in Russia). According to the resulting 1951 Convention Relating to the Status of Refugees, international guidelines would allow a displaced person to claim asylum based on one of five distinct categories:

those with a well-founded fear of being persecuted because of

(1) race;

(2) religion;

(3) nationality;

(4) membership of a particular social group; or,

(5) political opinion.

These categories were later incorporated into the Immigration and Nationality Act at 8 U.S.C. § 1158 and became U.S. law.

What does asylum law look like 70 years later?

1-3 and 5 above obviously fit a tidy post WWII-era type including Jews fleeing Germany and dissidents from Communism. Those categories are still extremely relevant. Political opinion and religious persecution claims are frequently granted, particularly out of China, Africa, and the Middle East.

However, the world changes and the open-ended 'particular social group' has become increasingly important. Through incremental case law, and many well-reasoned Board of Immigration Appeals (BIA) decisions, today number (4), “particular social group,” covers the following:

-persecution because you are fleeing female genital mutilation

-persecution on account of homosexuality, and

-persecution because you live in a culture where if you are a girl your brother or father has the right to murder you without reprisal if you embarrass him socially (otherwise known as “honor killings”).

And in the last ten years domestic violence asylum has developed, starting with some truly horrifying cases, almost all of them from Central America.

Why are domestic violence asylum cases coming from Central America in particular?

These are countries that have deteriorated to chaos, violence, and gang rule over the last two decades. In these societies, men often either become criminals who can act with impunity, or their ability to thrive is so frustrated by their social circumstances that they turn to drugs, alcohol, and violence to cope. In either case, domestic violence soars, as one would expect.

But hasn’t domestic violence always been an issue in these countries? Why should we be worried about these women now?

This is not just a continuation of how it has always been. The rates have actually increased dramatically. The number of violent deaths of women in Honduras increased 260% between 2005 and 2015. In a country the size of New Hampshire a woman is murdered every 16 hours and murder is the leading cause of female death. Guatemala, El Salvador, and Nicaragua are not far behind.

How has U.S. asylum law responded to these changing circumstances for Central American women?

We found a place in our asylum law for this. It was a bit of a stretch but based on the precedent particularly of the female genital mutilation cases, it worked.

The main problem is a highly technical one. A 'particular social group' is not allowed to be defined in a circular way based on the persecution. One has to (1) belong to a cognizable group and (2) fear persecution on account of their membership in that group.

As an example, World War 2 Jews would fear persecution on account of their membership among the Jewish religion / ethnicity, etc. They could not say, “I have a fear in my country because people are persecuting me.” Instead they could say, “I have a fear in my country because I am Jewish and people are persecuting Jews.”

What ‘particular social group’ fit Central American women fleeing domestic violence?

In a landmark case, the Department of Homeland Security (DHS) proposed that a particular social group of ‘Guatemalan women who cannot leave a relationship’ was a cognizable particular social group.

The group is not based on the persecution, not really. The group is a circumstance that makes the abuse feasible. If she could leave freely, he would not abuse her because he would not want her to leave. But she cannot because the society views her as his property. And the police do not intervene, either because there are none or because they see it as none of their business.

And this rendering of ‘particular social group’ was accepted by immigration officials of the U.S. government?

A more important question than the technical formulation of ‘particular social group’ that the BIA and the Department of Homeland Security agreed on in 2009—that Jeff Sessions unilaterally obliterated a few days ago in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)—is why did those entities, which are often hostile to immigration, agree to expand asylum to certain domestic violence victims?

Because they know the facts. Because DHS (ICE specifically) supplies the government attorneys who participate in the hearings, who cross-examine these women and resurrect their horror.

Because they hear the stories first-hand—the rape, the torture, the sex slavery, the being shot and left for dead.

Because the BIA reads the transcripts and sees the evidence on appeal.

These people know what is going on. And in the end, BIA judges and ICE attorneys want to sleep at night, just like everybody else.

Why might the Attorney General have a problem with this aspect of asylum law now, in June 2018?

On one side of the scale, domestic violence asylum was a bit of a stretch, and arguments about slippery slopes and the original spirit of asylum law are not meritless. On the other hand, the concept of a “particular social group” is statutory language which was intentionally left ambiguous by both the United Nations in 1951 and the U.S. Congress in 1982. Both were prescient enough to know that the hatred and bitterness of mankind from time to time finds new categories of victims.

The integrity of our laws is a desirable goal. But what is it worth? How far can we stretch our laws for conscience? And what is the corresponding harm?

If the concern is overwhelming the system, it is important to note that there are already significant obstacles in the way of asylum seekers.

What obstacles do asylum-seekers face?

First, you have to be physically present in the U.S. to seek asylum. (You cannot request asylum at a U.S. Embassy or Consulate.) For many that means crossing Mexico riding on the top of a train. It means crossing a desert into the U.S. where many people die of exposure.

It means being arrested by government agents who may ignore your asylum claim or who have learned to write “Said she came to seek employment” on your paperwork because they know this will sabotage your claim later on.

It means being able to somehow afford a lawyer and avoiding engaging some truly epic shysters, who will take your money and then do nothing worthwhile for your case.

It means surviving brutal cross-examination and convincing an immigration judge (who may have grown cynical about his docket of 20,000 cases) that your story is true and the facts fit just right (i.e., not just that you are likely to be killed or tortured but that you are likely to be killed or tortured for qualifying reasons).

Should we trust these women’s stories?

Jeff Sessions thinks all these women are lying. He essentially said as much in a press release that accompanied the decision.

But he does not know because he isn’t there. He hasn’t met them. He hasn’t heard their stories.

I have. I worked on a case of a woman whose husband shot her in both legs and then killed her mother when she jumped in front of the gun. Another woman carried her severely disabled daughter in her arms from coastal Honduras to Beaumont, Texas. Another was essentially sold by her husband to be gangraped by his friends. I watched a woman describe a rape that was so brutal the immigration judge cried on the stand.

What is the harm done by Jeff Sessions’ decision? Why are my friends so upset about it?

To me, the worst aspect of A-B- is that domestic violence asylum was already so difficult to get that Sessions’ decision only affects women with the most severe claims. They are the only subset who would have been granted asylum status in the U.S., and therefore they are the only ones for whom the outcome will now be different than it would have previously been. Sessions is not culling the charlatans. We already have an entire U.S. agency for that with many decades of experience. A-B- crushes only the women with true horror stories, the ones who would have made it to the finish line.