“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” In one line, US Attorney General Jeff Sessions swiftly ended asylum protections for survivors of domestic violence this June—reversing over 15 years of legal precedent and decades more of immigration and feminist activism.
The June 11 ruling on an asylum case named “Matter of A-B” outraged activists, politicians, and legal officials alike. Among many others, it drew criticism from the Southern Poverty Law Center, Minority Speaker of the House Nancy Pelosi, and 15 former immigration judges who signed a joint statement condemning Sessions’ move. On August 10, the American Civil Liberties Union announced it would bring a lawsuit against Sessions on behalf of several asylum seekers with cases pertaining to domestic violence. One client represented in the lawsuit is a woman who, after escaping two decades of abuse from her partner in El Salvador, was deported back to her home while her case was still being argued in court. It is unclear whether the ACLU and others challenging Sessions will be successful in reversing the ruling, and until then, the elimination of this provision is already dramatically impacting thousands of women and others seeking protection from violence.
The Texas-based immigration legal advocacy organization Dilley Pro Bono Project represents many clients seeking asylum protections from the threat of domestic and gang violence in their home countries. After Session’s decision, legal advocates saw their clients denied by the courts in staggering numbers. A June dispatch from Dilley stated “Since Session’s decision in Matter of A-B on June 11th, we have received 25 negative decisions. As a comparison, we had received 59 negatives in 2018 before the decision, meaning the percentage of negative decisions more than tripled.” Ana Puente Flores was on the legal team at Dilley this past summer and told the College Hill Independent that while domestic violence-based asylum cases were almost always granted in the past, she now sees clients who had death threats against them denied and lined up for deportation.
In the upcoming battle over this asylum protection, the fate of thousands of asylum seekers fleeing violence hangs upon complex legal arguments in the courts over such minutia as the definition of terms like “particular social group.” Hidden behind the impenetrability of immigration law, however, is a long legacy of feminist and immigration advocates bringing domestic violence into the public eye and demanding legal protection. And after numerous hard-fought campaigns to qualify domestic violence survivors for asylum, Sessions’ June ruling flies in the face of this legal and political history, breaking from decades of US immigration policy in order to further conservative anti-immigrant politics at the expense of those fleeing life-threatening conditions.
Sessions’ full statement includes over 30 pages of detailed legal argumentation, but the crux of his decision lies in an attempt to define domestic violence as “private violence,” which he argues does not meet requirements for asylum allowances. It is true that asylum law is designed to address violence in the form of broad-based social persecution conducted in the public sphere by government actors. However, after decades of international women’s rights activism (concentrated in late 20th century Europe but extending beyond), gender-based violence has become internationally recognized not as private but as a public issue of systemic oppression—therefore qualifying it as a basis for asylum claims. This means that according to international standards, states have an equal onus to protect those fleeing religious persecution, for instance, as those escaping domestic violence or other gender-related discrimination. In denying asylum to abuse survivors, Sessions disregards this important recognition of gender-based violence as a public issue and revives an outdated ideology that excuses gender-based violence as a “private” matter.
The long line of legal precedents, policies, and activism that led to asylum allowance for domestic violence extends far back into the 20th century. The devastation of World War II sparked international efforts to safeguard rights of refugees and other displaced persons (mostly in Europe), culminating in the United Nations 1951 Refugee Convention. While this convention produced internationally recognized standards for asylum, the US did not adopt asylum law until its own Refugee Act decades later in 1980. Even then, this act did not arise from concern over refugee rights as much as an interest in promoting US foreign policy interests. In alignment with US Cold War politics, the Refugee Act primarily protected immigrants from communist countries. At that time, the language of the law mirrored UN definitions of a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” Notably absent from the list of grounds for asylum-protected prosecution is gender. Consequently, advocates for women’s human rights in the 1990s sought to expand internationally recognized claims for refugee status to include gender-based violence. This activity built on a moment of broad international concern over violence against women in the 90s, during which time many countries developed laws condemning domestic violence for the first time. In 1993, the UN published Strategies for Confronting Domestic Violence: A Resource Manual, and concurrently, the Declaration on the Elimination of Violence Against Women.
These significant national and international policies were successful due to the preceding two decades of feminist campaigns, advocating for an end to violence against women. A popular slogan during these and other late 20th-century feminist efforts was “the personal is political.” This line represented broader efforts of the movement to bring matters traditionally labeled “private” into the public sphere. In drawing attention to the broad social and institutional groundings for systemic violence against women, feminist advocates challenged conservative opinions of domestic violence as a “family matter”—hidden behind the literal and metaphorical closed doors of the nuclear family. Although couched in legal definition, Attorney General Sessions’ label of domestic violence as “private” mirrors such outdated ideology, excusing abuse. Sessions’ faulty logic is evident in statements such as, “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.” In Sessions’ attempts to sideline domestic abuse as a particular crime only applicable to “certain” populations, he sidesteps some of the most important contributions of women’s rights history: that gender-based violence is a widespread issue of public concern and requires public redress in the form of legal protections.
Sessions’ end to asylum provisions for survivors of abuse is not only informed by anti-feminist ideology but is also infused with strong anti-immigrant sentiment—specifically, racially-charged fears of increases in immigration from Central and South America. However, xenophobic politics of a secure border and hesitation around asylum allowances existed long before his instatement in 2016. Due to rhetorical fears of increased immigration, victories in granting asylum on the basis of domestic violence have always been precarious.
In the US, feminist efforts to address domestic violence resulted in the 1994 Violence Against Women Act. The Act included pathways to legal status for immigrants who experienced abuse from their American citizen spouses. This legislation was significant in that it provided precedent for other immigration allowances on the basis of spousal abuse. One year later, the US Immigration and Naturalization Services (now USCIS) adopted “Asylum Gender Guidelines” instructing immigration officials how to evaluate asylum cases that deal with gender-based violence, including domestic abuse and sexual assault. Due to these new provisions, in December of that year a woman from Togo became the first refugee to apply for and eventually be granted asylum in the US due to her experience of gender-based violence.
Although the 1995 Gender Guidelines helped prop the door open for such asylum claims, already present in the documents was a hesitancy to expand the pool of asylum applicants too widely. In order to assuage fears that changing definitions of acceptable refugees would open a flood of applications, the guidelines specified that in abuse-based asylum claims, “The domestic violence cannot be purely ‘personal’. It must relate to one of the grounds enumerated in the statute” (“grounds” here being the basis for persecution in the Refugee Act such as religion, political opinion, etc.). Besides the faulty logic that domestic violence is ever purely “personal” (as in “particular,” “private”), this language also reveals an anxiety about gender-based claims to immigration relief opening the doors too wide, affording too many asylum seekers entry. This attempt to maintain tight restrictions on immigration allowances is not overtly stated; rather, it hides behind legal language and definition. As a result of this (baseless) anxiety about increased immigration, the battle for legal recognition of gender-based persecution rests on tenuous legal delineations.
Sessions’ ability to end domestic violence-based asylum claims is a direct consequence of this legal precariousness. After the 1995 Guidelines, the right to asylum on the basis of gender identity was never written explicitly into law. Instead, lawyers were able to maneuver gender-based claims of persecution into the category of “particular social group,” an accepted ground for asylum listed alongside race, religion, nationality, and political opinion. The argument was essentially that women could be classified within such a category since their gender is an immutable characteristic that is widely socially recognized as a basis for discrimination. This particular argument was debated in asylum courts until a Guatemalan woman successfully won her case in 2014 on the basis of her membership of the particular social group, “married women in Guatemala who are unable to leave their relationship.” Since 2014, the decision served as precedent for estimated thousands of other domestic violence survivors seeking asylum in the US.
This is the case that Sessions reversed in June. His decision on her case recalls decades-old fears of an expanding asylum pool, saying, “The [former] opinion has caused confusion because it recognized an expansive new category of particular social groups based on private violence.” Sessions justifies his efforts to restrict immigration in this decision with falty conceptions of gender-based violence, claiming that, “there is significant room for doubt that Guatemalan society views these women, as horrible as their personal circumstances may be, as members of a distinct group in society, rather than each as a victim of a particular abuser in highly individualized circumstances” [emphasis added]. Sessions’ comments are as revealing as they are upsetting; his opinion exemplifies the nexus of anti-feminist and anti-immigrant politics that fuel today’s neo-conservatism.
With little legitimate grounds for Sessions’ decision to end asylum for domestic violence survivors, his decision becomes emblematic of the dog-whistle politics increasingly used in—but not limited to—Trumpian conservatism. In an address to immigration officials about his intended changes to asylum policy, Sessions declared that, “The asylum system is being abused to the detriment of the rule of law, sound public policy and public safety.” Sessions also claimed that increased numbers of asylum applications had the potential to overwhelm the legal system.
Sessions’ comments reflect a broader conservative rhetoric of immigration “flooding” the United States. Such hyperbolic claims of increased border crossings and fraudulent use of the system are purposefully intended to justify xenophobic policies of restricting immigration allowances. In large part, this rhetoric has been disproven. Although asylum applications rose sharply in the past 4 years, there is no evidence that this has led to increased “abuse” of the system. According to Department of Justice statistics, the rate at which cases are granted asylum has remained consistent despite the uptick in applications, hovering around 20 percent. Although this means there is an increase in asylum applications granted, the numbers seen today are still much lower than they have been in earlier years. USCIS indicates an increase of refugee arrivals from nearly 60,000 in 2012 to nearly 85,000 in 2016, but these numbers are much smaller than the over 100,000 asylum cases granted per year in the early 90s and the staggering 207,000 cases granted in 1980, the first year asylum applications were opened.
Even if Sessions’ concerns about the functioning of the asylum process were founded, his move to end allowances for domestic violence survivors will not significantly reduce the numbers of people seeking protection at the border. Emily Gogolak, an investigative reporter on migration at the US-Mexico border, told the Independent, “Deterrence, when one is fleeing violence, doesn’t work. People are going to keep coming, it will just be in a more clandestine manner.” Gogolak emphasized the extreme violence that many asylum applicants hope to escape. Applications from Central America’s Northern Triangle make up the majority of asylum cases due to increased political instability and organized crime in the countries of Guatemala, El Salvador, and Honduras (which had the highest homicide rate in the world in 2014). Stories of immigrant deportees facing abuse or death once sent back to their home countries have been well documented in the past several years.
Puente Flores from the legal team in Dilley told the Independent that in considering these cases, it is important to recognize the “intersection of state violence and the domestic realm.” Her recent research (hosted at City College of New York's Politics of Sexual Violence Initiative) on sexual violence in conflict areas has shown that, “in areas where state violence is most prevalent, sexual violence increases.” There is a relationship between the environment of militarization as well as other threats of violence outside the home and violence within a domestic relationship, Puente Flores explained. Here lies the terrible irony in Sessions’ insistence that domestic violence is a private matter from which the US has no responsibility to provide protection: much of the current violence and instability in Central and South American countries—which women are fleeing either directly or indirectly through its influence on their partnerships—can be traced back to histories of US military intervention and economic imperialism.
The history and current politics around gender-based violence claims to asylum reveal a tenuous legal battle, one that ultimately exposes the failure of immigration law to cement dependable protection from violence and freedom of movement. While debates will continue in the courts this fall, immigration activists are not waiting for judges to define particular legal language. Just after Sessions’ June ruling, protests against child separation and deportation led to some of the largest demonstrations of political dissent we have seen during the current administration. As immigration activists demonstrate, true victories for women, migrants, and anyone seeking reprieve from violence may be best won not in the courts, but in the streets.
In May, a caravan of nearly 200 Central American asylum-seekers arrived at the California border and set up an encampment, staging demonstrations and garnering media attention throughout the summer. The caravan drew comment from the Attorney General himself, who called their action “a deliberate attempt to undermine our laws and overwhelm our system.” The representative group Pueblos Sin Fronteras linked concerns of violence against women to appeals for immigrant justice on the caravan’s list of demands, addressed to their home countries and the US government. Calls to “end failures of justice for victims of domestic violence” stood alongside demands to “open the borders” and make “the conventions on refugee rights not be empty rhetoric.” Many immigration activists like Pueblos Sin Fronteras recognize the precarious nature of most immigration allowances and instead of advocating for any individual immigration pathway to remain open, are developing broad-based critiques of the US immigration system. Ultimately, they call for an open border to all, not just the few who fit particular definitions of worthiness. After all, even if asylum protections for victims of domestic violence were reinstated, that allowance would only cover a fraction of the immigrants seeking to cross the border—all of whom are owed the right to stay.
ERIN WEST B'18.5 might apply to law school.