Attorney General’s Decision a Setback for Women Seeking Asylum Based on Domestic Violence, but Hope Remains

Immigration Blog

Attorney General’s Decision a Setback for Women Seeking Asylum Based on Domestic Violence, but Hope Remains

A recent administrative decision by Attorney General Jeff Sessions marked a major step backwards for women who came to the United States fleeing domestic violence. Session’s decision overturned a 2014 landmark decision by the Board of Immigration Appeals (BIA), which held some victims of domestic violence could qualify for asylum under United States.

To seek asylum in the United States, a person must show that he or she has a well-founded fear of persecution in his or her country of nationality on account of his or her religion, political belief, race, nationality, or membership in a particular social group. In a 2014 decision called Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA held that “married Guatemalan women who were unable to leave to their relationships” could constitute a particular social group for asylum purposes. This decision opened for the door for many victims of domestic violence, including women who are not married or who are from other countries, to apply for asylum on the basis of their fear that they will be harmed by their domestic partner if returned to their country of nationality. The BIA’s decision, which mirrors developments in asylum law internationally, was hailed as a major breakthrough for human rights in the United States.

Sadly, Sessions, as part of a transparent mission to deter persons from Central America or Mexico from coming to the United States to seek asylum, recently overturned this decision in a case called Matter of A-B-, 27 I&N Dec. 316 (AG 2018), which held that the Board’s decision in Matter of A-R-C-G- could no longer be relied upon to support a claim for asylum. Sessions’ decision is sweeping. In addition to casting doubt on asylum claims based on domestic violence, Matter of A-B- contains language which likewise attempts to dissuade immigration judges or asylum officers from granting asylum to those fleeing gang violence, family-related feuds, or similar types of harm. This decision is not surprising considering its author: Sessions is the same Attorney General who crafted the Trump’s administration’s “zero tolerance” plan to separate immigrant parents from their children.

But, hope remains. Immigration attorneys across the nation, including DMCA’s litigation team, will be challenging Sessions’ poorly reasoned decision using every available legal avenue. And, attorneys at DMCA remain committed to fighting for the rights of all of our clients seeking asylum, including those who fear they will be harmed by their former domestic partner if they are deported.

Several recent DMCA victories at the United States Courts of Appeals for Fifth Circuit offer a way forward. First, in a recent asylum case involving a female activist who was challenging gang violence and government policies in Honduras, the Fifth Circuit held that the Immigration Judge erred because he refused to evaluate the particular social group proffered by the applicant. See Cabrera v. Sessions, 890 F.3d 153 (5th Cir. 2018). The implication of this decision, which was argued at the Fifth Circuit by DMCA attorney Lance Curtright, is that courts must decide whether asylum applicants qualify for protection based on the record before the court instead of disqualifying applicants with sweeping statements, such as that their case relates to gang violence or domestic violence, that do not properly evaluate the applicant’s claim. Second, in another recent case argued by DMCA attorney Curtright, the Fifth Circuit clarified the eligibility standards for persons seeking a related form of relief called protection under the Convention Against Torture. See Iruegas-Valdez v. Yates, 846 F.3d 806 (5th Cir. 2017). In Iruegas-Valdez, the Fifth Circuit held that an applicant for this form of relief is not required to show that the entire government of their nationality would participate or fail to act when the applicant is harmed. Rather, it is sufficient to show that one public official acting under color of law is somehow involved in the harm. This decision offers promise for those who are seeking protection from domestic violence but who may have trouble qualifying for asylum in light of Sessions’ decision in Matter of A-B-.

As we have done for years, DMCA attorneys will continue fighting tooth and nail for our clients seeking protection in the United States, regardless of Sessions’ and the Trump administration’s attempt to stop asylum seekers in their tracks. If you or a loved one are afraid to return to your country of nationality because of domestic violence, or other reasons, please contact us today to schedule an appointment with one of our litigation attorneys in San Antonio, Austin, and Houston.

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