On June 11, 2018, Attorney General Sessions issued a precedent decision, vacating a decision by the Board of Immigration Appeals (BIA) and finding that generally, victims of domestic violence and other victims of crime committed by non-governmental actors do not qualify for asylum. His decision usurps the independence of the Immigration Courts and the BIA and flouts due process by disavowing the principle that each asylum case stands on its own merits.
In Matter of A-B- (12/18,2016), the BIA upheld asylum for the respondent and held that membership in the particular social group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common,” was one of the main reasons for the spousal abuse in that case. According to US immigration law, a person qualifies for asylum who can show past persecution or a reasonable fear of future persecution on account of race, religion, national origin, political opinion or membership in a particular social group.” A particular social group is defined as persons who hold a “common, immutable characteristic” which may be “an innate one such as sex, color, kinship ties, or in some circumstances…a shared past experience such as former military leadership or land ownership.” Matter of Acosta, 19 I&N Dec. 211, 233–34 (BIA 1985). The characteristic must be one “that the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Id. Also, membership in the particular social group must be socially distinct, “a group need not be seen by society; rather, it must be perceived as a group by society.” Matter of M-E-V-G-, 26 I&N Dec. at 240. Particular social group membership has been one of the most contentious protected groups in asylum law and has greatly evolved over the years to include victims of domestic violence.
Furthermore, there must be a nexus between the harm and the group membership. In Matter of A-B-, the BIA found that the ex-husband abused her based on his position of authority as her ex-husband and father of their children.
Finally, the asylum applicant must demonstrate that his or her government is unable or unwilling to protect him or her from harm based on one of the qualifying groups. In Matter of A-B-, the BIA held that there was evidence that the police did not intervene after being called on multiple occasions. It also noted that a governmental human rights report for El Salvador indicated that domestic violence was a widespread and serious problem and that government’s efforts were minimally effective.
According to Annaluisa Padilla, AILA President, “The Attorney General is turning back the clock on nearly twenty years of asylum law and undermining access to protections for bona fide asylum seekers who have suffered domestic violence, gang violence, or other forms of persecution by private actors. He blatantly ignores the conditions in countries that our own asylum law demands be taken into account when deciding these cases. This decision must also be examined in light of the Central American women and families who are now coming to our borders seeking protection from the uncontrolled, extreme levels violence in their home countries. These women are not safe in their own countries because the government cannot or will not protect them. Furthermore, today’s decision has made the arduous path to asylum even more difficult for those who are pursuing protection on their own without legal representation.”
In response to an invitation for amicus briefs, 16 retired immigration judges and former BIA members have submitted an amicus brief in support of the respondent in Matter of A-B-. It asserts that this case is “rife with procedural violations and is consequently unripe for agency-head review.”