The Matter of Ms. A.B.: Domestic Violence and Asylum

Content Warning: mention of rape, domestic violence, deportation

After surviving 15 years of unrelenting domestic violence, rape, and psychological violence at the hands of her husband, a Salvadoran woman known by her initials as Ms. A.B. managed to escape to a town a few hours away from their home, only to be found and brutalized again. She attempted to seek a divorce and protection from the police but instead received armed death threats from her husband and his connections with the authorities. When it became unequivocally clear that she would not remain alive, let alone safe, in El Salvador, she sought asylum in the United States. Upon finally reaching the U.S., however, her claim was denied. [1]

When she appealed the decision made by Judge Couch of the Charlotte Immigration Court (where 4,034 out of 4,597 cases result in deportation) to the Board of Immigration Appeals (BIA), it was originally approved in a ruling known as Matter of A-B- (A-B-) in December 2016. [2] In June 2018, however, Jeff Sessions, the former Attorney General of the United States under President Donald Trump, certified himself to take up reconsideration of A-B-. While legal, this was considered a very rare use of power by an Attorney General.

Sessions gave himself the “absolute authority to overrule or completely rewrite the decisions of an ostensibly neutral and independent tribunal comprised of judges possessing greater subject matter expertise,” as former Immigration Judge Jeffrey S. Chase explains. [3] Sessions not only rejected Ms. A.B.’s appeal but also vacated a 2014 BIA decision, known as Matter of A-R-C-G (A-R-C-G), that would have supported her case. [4]

To complicate the matter further, Sessions did not publicize the fact that Ms. A.B.’s claim was originally approved. This information only became known after advocates independently acquired information from Ms. A.B.’s attorney. [5] As is made clear by A-R-C-G and the Immigration and Nationality Act (INA), A-B- was wrongly decided because it is not supported by asylum law and its credibility is further eroded by Sessions' certification of the case and the lack of transparency he allowed for during the process.

In A-R-C-G, the BIA granted asylum to a Guatemalan woman fleeing domestic violence on the grounds that she was a “member of a particular social group composed of ‘married women in Guatemala who are unable to leave their relationship.’” [6] Section 1158(a)(1) of the INA affords asylum to individuals persecuted on the basis of race, religion, nationality, political opinion or, membership in a particular social group. [7] The A-R-C-G decision set a pivotal precedent for asylum seekers escaping domestic violence because it included them in the “particular social group” category of US asylum requirements. It stated, based on precedent, that social groups are defined by shared immutable characteristics and being “socially distinct in the society in question.” [8]

Sessions' ruling in Matter of A-B-, however, stated that “to be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum” and that “the mere fact that… certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.” [9] These two reasons, however, appear to contradict one another. If certain populations are more vulnerable to certain crimes—in Ms. A.B.’s case, Salvadoran women and sexual and domestic violence—then this would imply that they share certain characteristics (such as sex) that at least correlate to, if not cause, this vulnerability. The logical conclusion would then be that this population would constitute a social group, both in the context of the harm and beyond it.

The decision in A-B- also states that an applicant seeking protection from private criminals must demonstrate that the government is incapable or unwilling to protect them. [10] The clear lack of government protection proven in A-R-C-G was also demonstrated in Ms. A.B.’s case, as she was dismissed by the police multiple times. [11] Therefore, her case meets yet another condition of asylum requirements.

Sessions' ruling was met with legal briefs submitted by Ms. A.B.’s lawyers, the Department of Homeland Security, and twelve amici curiae including the American Bar Association, a coalition of former immigration judges, the Harvard Immigrant and Refugee Clinic, and more. In contrast, only one brief, filed by the Immigration Reform Law Institute, was submitted in support of Sessions' position. The briefs supporting Ms. A.B.’s case argue that gender counts as a social group, restricting asylum only to victims of government action violates asylum law, and that acts by private actors can still be persecution rather than sporadic crimes. [12]

The requirements outlined in the INA, the arguments presented in A-R-C-G, and the widespread backlash that the A-B- ruling has caused among immigration-focused legal professionals, demonstrate that Sessions' decision to both vacate A-R-C-G and create systemic obstacles to asylum seekers fleeing violence at the hands of private criminals are not supported or founded in existing asylum law. The irregularity of Sessions' actions in this case as opposed to established legal precedent begs the question: was this decision sparked by a genuine concern for legal legitimacy, or was it meant to be a blatant attack on asylum rights? Whatever the intent may have been, the impact has been clearly aligned with the latter. [13]

Sources:

[1] "Backgrounder and Briefing on Matter of A-B-." Center for Gender and Refugee Studies. Accessed March 08, 2019.

https://cgrs.uchastings.edu/matter-b/backgrounder-and-briefing-matter-b.

[2] Thompson, Christie. "America's Toughest Immigration Court." The Marshall Project. December 12, 2016. Accessed March 08, 2019. https://www.themarshallproject.org/2016/12/12/america-s-toughest-immigration-court.

[3] Chase, Jeffrey. "The AG's Certifying of BIA Decisions." Jeffrey S. Chase. March 30, 2018. Accessed March 08, 2019. https://www.jeffreyschase.com/blog/2018/3/29/the-ags-certifying-of-bia-decisions.

[4] Pyati, Archi. "Background on Attorney General’s Decision in Matter of A-B-." Tahirih.org. Accessed March 08, 2019. https://www.tahirih.org/pubs/background-on-attorney-generals-decision-in-matter-of-a-b/.

[5] Ibid

[6] 26 I&N Dec. 388 (BIA 2014)

[7] 8 U.S.C. § 1158

[8] 26 I&N Dec. 388 (BIA 2014)

[9] 27 I&N Dec. 316 (A.G. 2018)

[10] Pyati, Archi. "Background on Attorney General’s Decision in Matter of A-B-." Tahirih.org. Accessed March 08, 2019. https://www.tahirih.org/pubs/background-on-attorney-generals-decision-in-matter-of-a-b/.

[11] 26 I&N Dec. 388 (BIA 2014)

[12] Pyati, Archi. "Background on Attorney General’s Decision in Matter of A-B-." Tahirih.org. Accessed March 08, 2019. https://www.tahirih.org/pubs/background-on-attorney-generals-decision-in-matter-of-a-b/.

[13] "Matter of A-B- Considerations." Immigrant Legal Resource Center. Accessed March 08, 2019. https://www.ilrc.org/matter-b-considerations.