SGG Fights Recent Changes to Asylum Policies

In August 2014, the Board of Immigration Appeals issued a decision that allowed a woman to seek asylum based on the years of extreme domestic violence she suffered. That violence rose to the level of persecution, and it was on account of her membership in a particular social group of married Guatemalan women who were unable to leave the relationship. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). SGG has won several asylum cases based on Matter of A-R-C-G-.

In 2018, former Attorney General Sessions certified to himself — normally a rare procedure but one that Sessions has already used multiple times – a Salvadoran woman’s asylum case based on domestic violence. The Board had granted her case, but Sessions took over the case to cancel the grant and overrule the Board’s decision in A-R-C-G-. Matter of A-B-, 27 I&N Dec. 316 (AG 2018). The Attorney General’s decision tries to reduce the ability to succeed in cases where the persecutor is a private actor – not a part of the government. However, asylum law makes clear that where a government is unable or unwilling to control the persecutor, the claim may succeed. Indeed, countless published, binding opinions from the U.S. Courts of Appeals interpret that law to apply to a variety of private actors where the evidence supports the lack of government protection. Consequently, in one SGG case, we successfully argued that a security guard in Honduras functioned more like police than a private actor, terrorizing his victim with the impunity of a government member.

Among the many disturbing proclamations in Matter of A-B-, one tries to alter the assessment of whether an asylum applicant deserves to be granted based on how he/she entered the U.S. Once a person meets the definition of a refugee, the adjudicator decides if the asylum application should be granted as a matter of discretion, weighing positive and negative factors about the applicant, such as criminal history, rehabilitation, moral character, family unity, etc. Historically, the manner of entry has been of less significance, far outweighed by the dangers an applicant was fleeing. In Matter of A-B-, Sessions suggests that entry without inspection should be weighed more heavily as a negative factor. This is especially problematic given the reports of migrants being turned away from ports of entry by U.S. Customs & Border Protection (CBP), forced to wait for days without shelter or water, and finally entering without inspection to peacefully turn themselves in to CBP. In May, Attorney Helen Sklar traveled to Tijuana to help prepare migrants for their eventual contact with CBP so they could articulate their fears of returning to their countries of origin. In July, Attorney Taiyyeba Skomra attempted in court to counter the government’s reliance on Matter of A-B- by showing the failure of the Guatemalan government to control abuse at girls’ orphanages, and presenting the many positive attributes of her client.

Through Matter of A-B-, Sessions sought to reverse over 20 years of advocacy that made it possible for certain survivors of domestic violence to qualify for asylum as members of particular social groups. Even the Department of Homeland Security has been conceding the viability of certain domestic violence cases for years depending on the individual facts and country conditions. But the decades of work establishing gender-based claims is not so easily erased. Earlier this year, SGG won asylum for a family based on the female genital mutilation of a woman by her own family, and the unwillingness or inability of the government to prevent the same from happening to her daughters. The legal principles that enabled that victory and others will not be undercut by the unilateral actions of an Attorney General.

In December, Acting Attorney General Whitaker certified another asylum case to himself, to review whether and under what circumstances membership in a family can constitute membership in a particular social group. Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018).  The American Immigration Council has filed a brief arguing that Whitaker lacks the authority to adjudicate these immigration cases, including any that Sessions had certified to himself but not yet adjudicated.

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