Domestic abuse decision doesn’t change asylum law, just applies it correctly

Whether Attorney General Jeff Sessions’ domestic abuse decision is morally right or not, the criticism of his legal right to issue it is unjustified.

Asylum applicants have to establish that they are “refugees” as that term is defined by the Immigration and Nationality Act (INA). This requires showing that they are unable or unwilling to return to their own countries because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

{mosads}According to TRAC Immigration, as of November 20, 2017, the outcome for an asylum seeker in removal proceedings depended on which immigration judge was assigned to hear his case.   

For the 6,922 asylum seekers whose cases were decided in the San Francisco Immigration Court over the last six years, the odds of denial varied from only 9.4 percent to 97.1 percent, depending upon which judge heard their cases.

For the 1,233 individuals whose cases were heard by the Newark Immigration Court, the odds of denial ranged from 10.9 percent to 98.7 percent, depending upon which judge heard their cases.

The following chart shows the percentage point range of denial rates in the courts with the largest judge-to-judge differences in their asylum decisions.

The Board of Immigration Appeals is responsible for ensuring that immigration laws are applied uniformly, but it has not met this responsibility.

Sessions is trying to do something about this by reviewing key cases and rendering decisions that provide guidelines for the judges on how they should be deciding their asylum cases.

On March 7, 2018, he directed the Board to refer the unpublished December 8, 2016, decision, “Matter of A-B-”, to him for his review. The Board granted asylum in this case to a victim of domestic violence, A-B-, who claimed persecution on account of membership in a particular social group described as, “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.”

“An alien may suffer threats and violence in a foreign country for any number of reasons related to her social, economic, family or other personal circumstances,” Sessions wrote in his ruling. “Yet the statute does not provide redress for all misfortune.”

Particular social group made up of victims of domestic violence.

This isn’t the first time The Board of Immigration Appeals has considered domestic violence and rejected victims of domestic violence as a particular social group. The Board did it in “Matter of R-A-” in 1999.  

The Board held that R-A- was not eligible for asylum for two reasons. First, her claimed social group — “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination” — did not qualify as a “particular social group” for asylum purposes.

And second, that she has not established that her husband abused her because he perceived her to be a member of this group.

Attorney General Janet Reno intervened and vacated that decision — rendered it void — so it could be reconsidered in light of a proposed regulation that would clarify some of these concepts, but no final rule was ever promulgated.  

The case was resolved without further consideration by the Board when R-A- and DHS jointly stipulated that she was eligible for asylum. Nevertheless, the Board and the federal courts continued to treat the R-A- analysis as persuasive.

In a later case, “Matter of A-R-C-G-”, the Board abandoned the reasoning from the R-A- analysis and held that depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group for asylum purposes. But the finding was based primarily on government concessions, as opposed to basing it on an application of Board precedent.

Sessions found that the Board decided A-R-C-G-’s case without performing the rigorous analysis required by Board precedents by basing its decision on concessions from the DHS attorney that the respondent had suffered past persecution, that she was a member of a qualifying particular social group, and that her membership in that group was a central reason for her persecution instead of adjudicating these issues.

Sessions concluded therefore that A-R-C-G-’s case was wrongly decided and should not have been issued as a precedential decision. Accordingly, he overruled it.

Having overruled A-R-C-G-’s case, he had to vacate the Board’s decision in the A-B- case too. The Board’s cursory analysis of the respondent’s “particular social group” in that case consisted mainly of a general citation to A-R-C-G-’s case and country condition reports.

He remanded the case to the immigration judge for further proceedings consistent with this opinion, reiterating that an applicant for asylum on account of membership in a particular social group must demonstrate:

1. Membership in a particular social group that is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct;
2. That membership in that group is a central reason for the alleged persecution; and
3. That the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.

The Board decisions applying asylum to domestic abuse victims may be morally correct, but they are legally indefensible.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.