Attorney General Jeff Sessions has issued a new ruling making it more difficult for those fleeing persecution to successfully seek asylum in the US.

By Daniel Herborn

Posted on June 12, 2018

In the US, the Attorney General has the power to issue rulings which serve as binding precedent for judges in the immigration courts.

Attorney General Jeff Sessions has now used that power to issue a ruling that overturns the recent decision in the Matter of A-B- which granted asylum to a woman from El Salvador who fled the country after being raped and assaulted by her husband over a period of 15 years.

The new ruling significantly restricts the circumstances in which immigrants can claim asylum and potentially applies to tens of thousands of immigrants to the US who now face being deported to their home countries even if they can show they are in imminent danger.

Under US federal law, a person qualifies for asylum if they convince the court they were persecuted on the basis on at least one of the protected traits. These traits are race, religion, nationality, political opinion or membership in a particular social group.

The Board of Immigration Appeals has previously defined “membership of a particular social group” to include any social group that shares a “common immutable characteristic” and is “socially distinct within the society in question”.

In 2014, this definition was previously used to protect a Guatemalan woman who had been tortured by her husband and was not helped by local authorities when he threatened to murder her.

The following year, the Board of Immigration Appeals expanded this precedent to include women in de facto relationships.

A new binding precedent on asylum seekers

On Monday 11 June 2018 Sessions detailed his motivations for making the ruling in a speech to the Executive Office for Immigration Review Legal Training Program.

“Asylum was never meant to alleviate all problems – even all serious problems – that people face every day all over the world,” he said.

“I will be issuing a decision that restores sound principles of asylum and longstanding principles of immigration law … It advances the original intent and purpose of the INA (the Immigration and Nationality Act of 1965), and it will be your duty to carry out this ruling.

“This decision will provide more clarity for you. It will help you to rule consistently and fairly.”

Sessions also pointed to the backlog of immigration cases which now numbers around 700,000 matters.

“That’s more than triple what it was in 2009,” he said.

“This is not acceptable. We cannot allow it to continue.”

In his ruling, Sessions wrote that an applicant for asylum to be caught by the statutory definition they must have more in common with the “particular social group” than their shared persecution.

He went on to outline how persecution in the context of the legislation means “something a government does” and abuse from individuals or groups not affiliated with the government will not generally fall under this definition.

“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.

“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.”

Sessions noted the woman in the Matter of A-B- had endured “vile abuse”, but clarified that such an applicant should not qualify for asylum protection.

Sessions’ ruling condemned by human rights groups

Immigrants’ rights bodies and human rights organisations have strongly condemned the move.

Karen Musalo from the Center for Gender and Refugee Studies at the University of California Hastings College of the Law said: “What this decision does is yank us all back to the Dark Ages of human rights and women’s human rights.”

Beth Werlin of the American Immigration Council said Sessions’ ruling “will no doubt result in sending countless mothers and children back to their abusers and criminal gangs”.

“Turning our backs on victims of violence and deporting them to grave danger should not be the legacy sought by any administration.”

Democratic Senator (and former Attorney General for California) Kamala Harris tweeted that the ruling means the Trump administration “is turning its back on victims of domestic violence and gang violence and further putting their lives at risk”.