Sessions' Domestic Violence Decision is Inhumane

Attorney General Jeff Sessions has just dealt a major blow to asylum seekers in the United States. Today, he reversed the Board’s precedent decision in Matter of A-R-C-G, 26 I&N Dec. 338 (BIA 2014), allowing victims of domestic violence to qualify for asylum. In a case that was litigated for over a decade, the Board reached this seminal decision changing the lives of many victims of domestic violence.

The Definition of Asylum

Asylum is the process under which individuals who fear persecution in their native countries can apply for protection. The law governing such process is the Refugee Convention and the several other conventions to which the United States is a party. To qualify for asylum, an applicant must qualify as a refugee by showing that he has experienced past persecution or will face future persecution if they were to return to their country.

An applicant for asylum must show that he or she would qualify for asylum under six grounds:

Race
Religion
Nationality
Political Opinion
Membership in a particular social group
Protection under the Torture Convention

An applicant may prove eligibility if he or she has been persecuted by the government, or if by a private party, the government in the country was unable or unwilling to protect him or her against persecution. The persecution should be related to one of the abovementioned six grounds.

What is a Particular Social Group?

A particular social group is a group of individuals that have been persecuted previously, that is distinct and succinct, and socially recognizable. If the members of the particular social group have been previously persecuted, then an applicant may qualify for asylum.

Can Sessions Do This?

Under 8 CFR 1003.1(h)(1), Sessions could direct the Board to refer cases to him.

Sessions’ Decision is a Departure from Established law

As mentioned above, the BIA, in Matter of A-R-C-G, 26 I&N Dec. 338 (BIA 2014), ruled that a Guatemalan victim of domestic violence qualified for asylum because the Guatemalan government did not adequately protect her. Sessions did the following things in his decision in Matter of A-B-, 27 I&N Dec. 316 (BOA 2018):

He limited the scope of eligibility by effective heightening the burden of proof on applicants
He seemingly allowed an immigration judge to pre-judge the application for asylum by rejecting it if the application is flawed in any way, which is a violation of due process rights
He also redefined persecution in domestic violence cases, by seemingly removing the inability of the government to protect from the grounds allowing asylum
He reversed the poor applicant’s decision almost four years after the Board granted her application

The Decision will Affect Thousands of Domestic Violence Applicants

This decision will have severe effects on thousands of asylum applicants around the country. Te problem with this decision is that it contradicts international law.

One of the reasons I assume this decision was written by the Attorney General is to stem asylum applications in the United States to quell backlog in the system. However, doing so at the expense of one of the most vulnerable population in the country is simply inhumane.

Additionally, the decision contradicts international law. Asylum law is a creature of international law and conventions. Several advanced countries, including Canada, has allowed domestic violence survivors to apply for asylum based on domestic violence being a recognized basis for asylum. I am sure that AILA will challenge such unfair decision.

Board of Immigration Appeals Issues Decision on Particular Social Groups
Asylum Application
Asylum
Domestic United States Law Relating to Refugees
Asylum for Victims of Domestic Violence

Sessions’ Domestic Violence Decision is Inhumane and Should Be Reversed