Sessions’ Move to Limit Asylum Claims Is a ‘Slap in the Face’

It is “a slap in the face [to] everyone with a valid asylum claim who was relying on decades of legal precedent to file those claims,” one attorney told Rewire.News.

[Photo: Migrants in a caravan travel from Mexico to the U.S. border]
Asylum law is also one of the most complicated areas of immigration law for attorneys and for their undocumented clients. It is a painful process that can take years, with the onus on the victim to basically prove they will be killed if they are deported. David McNew/Getty Images

Attorney General Jeff Sessions issued a sweeping decision yesterday that effectively overrides current asylum law and instructs immigration judges to stop granting asylum to most victims of domestic abuse and gang violence, which immigration attorneys say will lead to the deaths of many Central American women and children.

“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” Sessions wrote in his ruling. “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’ ruling on Monday centered on “Matter of A-B,” a case that Sessions referred to himself for review earlier this year. The case revolves around a Salvadoran woman who migrated to the United States in 2014 to escape her ex-husband who raped her and spent years stalking her and physically and emotionally abusing her, even after she moved elsewhere in El Salvador. Her ex-husband’s brother was also a police officer who threatened her.

An immigration judge in Charlotte, North Carolina, where immigrants are ordered deported in 84 percent of cases, denied the woman asylum. She appealed the decision and in 2016, the Board of Immigration Appeals (BIA) ruled in her favor, asserting it was clear the Salvadoran government was unable to protect her. In part, the BIA based its ruling on precedent known as the “Matter of A-R-C-G,” a 2014 case stating 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 cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” Sessions also vacated this case Monday, saying it was “wrongly decided.”

Immigration attorney Prerna Lal told Rewire.News in a phone interview that Sessions is “playing with words” in an attempt to make it seem as if Central American asylum seekers in particular are using domestic violence and gang violence claims falsely as a way to gain entry into the United States. In reality, Lal said, there are reasons for the uptick in these cases emerging from what is known as the Northern Triangle—El Salvador, Guatemala, and Honduras—and that the “good case law” immigration attorneys received as a result of Matter of A-R-C-G allowed them to file more asylum claims on their clients’ behalf.

As the New York Times reported, the number of people who told Department of Homeland Security (DHS) officials they had a credible fear of persecution jumped to 94,000 in 2016 from 5,000 in 2009.

“Sessions referred Matter of A-B to himself out of the blue earlier this year and has used it to basically say [that] if you are a victim of a crime in your home country, this does not make you eligible for asylum. Therefore, countless women, who predominantly suffer from domestic violence and gang violence, will no longer qualify for asylum,” Lal told Rewire.News. “He wanted to find a way to stop what he saw as a tide of domestic violence cases that allowed Central Americans into the United States, so he worked backwards and started from this one case to try to stop the flow.”

But there is no evidence to suggest that such a decision would “stop the flow.” In 2014, when historic numbers of Central Americans fleeing violence migrated to the United States to claim asylum, a study conducted by Vanderbilt University’s Latin American Public Opinion Project (LAPOP) found that crime victims are unlikely to be deterred by an administration’s efforts to stop migration—and this can also be applied to the Trump administration’s recent “zero tolerance” policy at the border, in which families migrating together are separated at the border, with the parents being prosecuted.

LAPOP’s analysis, based on a survey of Northern Triangle residents, revealed that “one’s direct experience with crime emerges as a critical predictor of one’s emigration intentions,” and that “respondents were more likely to have intentions to migrate if they had been victims of one or more crimes in the previous year.” The survey also found that “a substantial majority of respondents were also well aware of the dangers involved in migration to the United States, including the increased chances of deportation.” This widespread awareness did not have a significant effect on whether or not the Central Americans surveyed intended to migrate.

What is clear is that Sessions’ decision was months in the making. On October 8, the White House sent a wish list of immigration proposals to Congress, which in part said that “lax legal standards” had led to an  immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.”

A few things here are important to note. The Trump administration uses “criminal alien” to refer to any immigrant in the United States without authorization. There also have been major pushes by the Trump administration to conflate immigration with criminality, and repeated attempts to paint all Central American asylum seekers—especially young men, who will also be impacted by Sessions’ decision—as “violent animals.”

Before Sessions issued his decision on Monday, there were other troubling signs that the Trump administration would soon target asylum seekers. When ending Temporary Protected Status (TPS) for Northern Triangle countries like El Salvador and Honduras, DHS Secretary Kirstjen Nielsen said country conditions related to the TPS designation had improved, never mentioning the fact that El Salvador and Honduras have catastrophic levels of gang violence and some of the highest homicide rates in the world. And as Rewire.News has reported, some of the conditions in countries like El Salvador are the result of U.S. foreign policy.

A May report from the Web Integrity Project (WIP) also highlighted an alarming discovery. The organization, which monitors and documents changes to federal websites, reported:

Between ​March​ and ​April 2017​, a series of 26 documents pertaining to training asylum officers were removed from the U.S. Citizenship and Immigration Services (USCIS) website. The materials were prepared for personnel charged with reviewing and vetting asylum claims under certain international agreements and provisions of U.S. law. An entire section titled “Asylum Officer Basic Training Course Lesson Modules,” which included links to the training documents, was removed from the “Asylum Division Training Programs” page. Although some related material can be found elsewhere on the USCIS domain, the agency did not announce the removals or create a comprehensive archive of the resources.

Neither Lal nor immigration attorney Carol Donohoe, who works directly with asylum seekers in detention, were surprised by Sessions’ decision Monday. Both said they knew the decision was coming, but still characterized it as “disgusting,” “shameful,” and “sickening.”

Donohoe spoke to Rewire.News less than an hour after Sessions released his decision, and she was distressed. She and her colleagues at AldeaThe People’s Justice Center work with clients at the initial stage of the asylum process. Their clients are in detention because they’ve been subjected to expedited removal and they’ve asked for a credible fear interview. The credible fear interview is, as Donohoe said, “the threshold decision” as to whether an asylum seeker may prevail in court. During a credible fear interview, an asylum seeker must elicit the claim that fits under the asylum laws, which require they prove they have suffered persecution related to race, religion, nationality, political opinion, or their particular social group, broadly considered to include people who share a common characteristic that endangers them and whose governments will not protect them.

“Because of Sessions’ decision, [the administration will say] basically any claim that almost all of our Central American clients have isn’t valid. I do not know what will happen to our clients,” Donohoe said. “It’s my understanding that we may not even be able to refer certain clients for credible fear interviews anymore. This is—I can’t express how horrendous this is. This really puts into question where our credible fear process, like as a country, even stands right now.”

If advocacy organizations or the courts don’t legally challenge Sessions’ ruling, the policy change will affect the asylum process in a fundamental way, Donohoe said, because the attorney general “basically unilaterally rewrote the definition of an asylum seeker.”

“The definition of asylum seeker in the United States is now in accordance with what this one man, or this one administration, thinks it should be. And I imagine that Stephen Miller is also behind this, trying to do everything he can to make sure brown people don’t get into this country,” Donohoe said. “Our asylum laws were put into place in response to the Holocaust. These laws were put into place to protect people because of the Jewish people we turned away who ended up dying in the Holocaust. Sessions is now painting an entire population of people as unworthy of protection. This is ethnic cleansing.”

In October 2017, Sessions said the immigration system is rife with “fraud and abuse,” and “dirty immigration lawyers” are encouraging their clients to “make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” In fact, the Trump administration has gone to great pains to convince the American public that the asylum process is an easy one and that asylum law simply allows migrants to enter the United States and gain status. But as the New York Times reported, “Relatively few asylum seekers are granted permanent entry into the United States. In 2016, for every applicant who succeeded, more than 10 others also sought asylum.”

Asylum law is also one of the most complicated areas of immigration law for attorneys and for their undocumented clients. It is a painful process that can take years, with the onus on the victim to basically prove they will be killed if they are deported.

Sessions’ decision goes into effect immediately, leaving those who have already filed their asylum claims based on gang violence or domestic violence in a precarious situation. Countless will lose their cases and be deported, Donohoe said.

It is “a slap in the face [to] everyone with a valid asylum claim who was relying on decades of legal precedent to file those claims,” Lal added.

Asylum seekers with attorneys—and less than 50 percent of detained people have attorneys, according to Lal—have a small shot at moving forward with their cases. For asylum seekers outside of detention whose claims get denied and who have access to an attorney, they can appeal the decision to BIA and eventually to a federal court to hope for a different decision. For the small percentage of detained asylum seekers with open cases who have attorneys, they can go “back to the drawing board,” as Lal said, and ask for a continuance on their case.

“But this means they will be detained even longer, and that’s if their continuance is granted. I imagine that in this situation, a lot of people with valid asylum claims will simply self-deport because they can’t deal with being detained any longer,” Lal said.

Donohoe said that she wants to see judges assert that they “will not be a part of this,” both in relation to Sessions’ asylum decision and at the border where federal agents are separating families and prosecuting parents. The Aldea attorney said she has encountered immigration judges who do care “and don’t want to send people to their deaths,” and now is the time for them to make that known. “I want to see action from Congress,” she said.

The attorney added that she wants “the media to stop retelling history. I saw an interview with [former DHS secretary under the Obama administration] Jeh Johnson recently, as if he’s the moral authority on anything. Organizations are advocating for family detention as an alternative—and family detention is what we’ve been fighting against for years. We don’t replace one atrocity with another,” Donohoe said. “Federal judges at the border need to assert that they are not going to prosecute someone on a misdemeanor, which would be like a traffic violation, if it means ripping their child from them. This is how we got to the Holocaust, because of all the little people along the way who said they were just doing their jobs.”

Both attorneys who spoke to Rewire.News said the Trump administration is changing the immigration system in fundamental ways and “undermining the legality” of the system, removing protections for asylum seekers, refugees, and even immigrants with various statuses legally residing in the United States. Donohoe said she thinks the United States will look back at this as “a terrifying time in history.” As it’s currently unfolding, it seems many Americans don’t understand or care about “the ways the Trump administration is chipping away at who we are as a country.”

“That’s what I want every journalist to get across. If you’ve ever wondered what you would have done during the Holocaust, what you’re doing now is what you would have done,” Donohoe said. “A DACA recipient we deported was killed three weeks later. A young woman was killed by [Customs and Border Protection]. [A] father who was ripped from his child killed himself in custody. We’re killing people and now we’re cutting off an essential avenue for asylum seekers to make claims. What do you think is going to happen?”

This was echoed by Lal.

“I believe the goal of this decision is to eliminate an entire class of asylum cases in immigration court and deport survivors to their deaths,” Lal said. “The United States has been a beacon of hope for women in particular who are fleeing violence. Not anymore. Sessions is ensuring that more people will die at the hands of their abusers and for all of those who have spoken out about #MeToo and #TimesUp, what happened [yesterday] runs counter to these movements’ efforts to address violence against women.”