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Asylum Cases Involving Victims of Domestic Abuse and Gang Violence Have Become Much More Difficult

Matter of A-B- involves a case for asylum filed by a woman from El Salvador who entered the United States illegally in 2014. She alleged she was escaping from an ex-husband who had physically and emotionally abused her for years, even after she moved elsewhere in El Salvador. The woman alleged that her ex-husband had raped her and that his brother, a police officer, had threatened her.

In 2015, a Charlotte-based immigration judge denied the woman asylum. She appealed to the Board of Immigration Appeals (BIA). The BIA is an administrative branch of the United States Department of Justice. The BIA accepts appeals, of decisions made by immigration courts throughout the country, filed by either government attorneys or immigrants.

In 2016, the BIA overturned the immigration judge’s 2015 decision and ruled in her favor, saying it was clear that the Salvadoran government was unable to protect her even after she moved to another part of the country. The BIA found the denial of asylum was “clearly erroneous” on the grounds that A-B- had proven she was persecuted based on membership in a “particular social group”; specifically, “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Her case was returned to the immigration judge who initially denied her asylum.

Jeff Sessions, as head of the Justice Department, which includes the immigration courts, intervened before A-B-’s asylum status was formally granted by the immigration judge that the BIA returned her case to.

Mr. Sessions’ intervention placed A-B-’s case in limbo. This intervention consisted of referring the BIA’s decision to himself. The practice of intervention gives a political appointee, and the head of a law enforcement agency, absolute power to overturn the decision of an independent and neutral tribunal of administrative judges. Mr. Sessions’ decision on June 11, 2018, vacates the BIA’s grant of asylum as “wrongly decided.” The decision states in relevant part:

“The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

The ruling doesn’t flat-out say that an immigrant can’t be granted asylum on the basis of having faced domestic violence or gang violence in her home country. But it makes it clear that suffering either of those things — or having a credible fear that you might suffer them if you are forced to return to the home country- is not enough to count as persecution and allow you to stay in the United States.

“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” Sessions declared. Immigration judges and asylum officers need to adjust the criteria of qualifying for asylum, because Sessions’ decision is now law.

The attorney general’s ruling said it is still possible that crime victims could win asylum in the United States, but they would have to pass a tougher test in the courts, including showing that their home government is unable or unwilling to protect them, and that they cannot safely relocate to another part of their country.

A.B.-‘s lawyers have stated in the media, they plan to challenge Sessions’ decision in federal court.

Stay tuned.

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