//  6/18/18  //  Commentary

Maybe Senators should have listened to Coretta Scott King after all.  Jeff Sessions, the man that far too many Senators voted to confirm as Attorney General, has proven he is exactly what King said.

Sessions’s latest atrocity is his decision to exercise his authority as Attorney General to overturn the Board of Immigration Appeals precedent that victims of domestic violence are eligible for asylum in the United States.  The decision is an abomination in its own right; but it is connected to the other horrors the administration is increasingly unleashing on immigrants. Highlighting some of those connections makes clear that the sum of this administration’s horrors is greater than all of its individual parts.

The Decision

On June 11, the little Keebler elf of doom released his decision in Matter of A-B-, a case involving an El Salvadorian woman seeking asylum in the United States.  The woman has been horrifically abused by her husband.

Sessions’s decision makes it almost prohibitively difficult for victims of domestic violence (and other groups as well) to seek asylum in the United States.  It does so by construing the asylum statute to mean that people who are persecuted by non-state actors (i.e., people other than the government) are generally not eligible for relief.   That rules out asylum relief for many victims of domestic violence, victims of gang violence, and LGBT individuals who may be persecuted by their families or other individuals.

Sessions proclaims that asylum applicants must establish “the government’s role in sponsoring or enabling” non-state violence (page 318).  That is, they must establish that the government “condoned the private actions or demonstrated an inability to protect the victim” (page 316).

He stops short, however, of ruling out the possibility that in some “exceptional circumstances”, some victims of private criminal activity may be eligible for asylum(page 317).  And even though he clarifies that his opinion does not “decide that violence inflicted by non-governmental actors” can never serve as the basis for asylum claims (page 320), he shuts the  door pretty emphatically on most claims that rely on allegations against non-governmental actors. He underscores: “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum” (page 320, emphasis added); “few such claims would satisfy the legal standard” for asylum (page 320 footnote 1, emphasis added); and that “in practice such claims are unlikely to satisfy the statutory grounds” for asylum (page 320).

Sessions narrows the door for asylum applications in another way as well.  In his final footnote, he maintains that “asylum is a discretionary form of relief” and that an asylum applicant “bears the burden of proving not only statutory eligibility for asylum” but also that she “merits asylum as a matter of discretion.”  In other words, even if an applicant could prove that the government condoned her husband beating her, Sessions is telling immigration judges they need not grant asylum. (“I remind all asylum adjudicators that a favorable exercise of discretion is a discrete requirement for the granting of asylum and should not be presumed or glossed over solely because an applicant otherwise meets the burden of proof for asylum eligibility” (page 345 n.12).)  While we’re on the topic of discretion, it’s worth pointing out that even issuing an opinion in this case was up to the Attorney General’s discretion; Sessions’s decision to do so was (obviously) a highly questionable exercise of that discretion.

It is also worth underscoring that the opinion acknowledges the asylum statute is, importantly, ambiguous on who is eligible for asylum for being subject to persecution because of their “membership in a particular social group.”  At page 326, Sessions acknowledges that the Board and the federal courts have repeatedly recognized the phrase is “ambiguous.” In other words, it’s susceptible to different interpretations and Sessions chose the crueler one--the one that risks the lives of victims of domestic violence.

In addition to the sheer human suffering that Sessions’s opinion will wreak--shutting off a lifeline for victims who face risks of serious injury and death in their home countries--it is worth pointing out a few ways in which the opinion traffics in misogyny and dog whistling.  First, the misogyny. At various points in the opinion, Sessions poo poos domestic violence as merely private, or personal disputes that have no particular valence to sex, or gender, or sexual violence. In footnote 10, for example, he describes domestic violence as a “purely personal matter.”  (The court cases he cites for that proposition involve employment disputes.) Earlier on that page, Sessions explains that abusers aren’t hostile to women as a social group; rather, they attack these women because of a “preexisting personal relationship with the victim.”  It’s hard to explain how appallingly ignorant that is; men who hit women have problems with … women). Sessions wanted evidence showing that the attack happened because of the victim’s membership in a larger group (page 339, see also 336). But, in this case, where the asylum-seeking woman hailed from a country with a reputation for being one of the most dangerous places for girls and women, it is hard to imagine any amount of evidence that could convince Sessions that some problems might just be due to sex or gender.

Then there is the dog whistling. For example, on page 323, he refers to the “pervasive nature of this violent criminality” in certain countries (so pervasive, he won’t let people escape from it, apparently). He also feigns horror at “countrywide negative stereotypes” that the Board cited in decisions allowing victims of domestic violence to seek asylum in the United States.  In particular, Sessions could not believe the Board cited a news article that described a “culture of machismo and family violence” in Guatemala (Page 336, n.9). It’s pretty rich coming from the man who endorsed the candidate who announced his Presidency by proclaiming that Mexicans crossing the border are “rapists” and “criminals” (but “some” are good people). It’s extra rich coming from the man who once described children fleeing MS-13 and other gangs as “wolves in sheeps clothing.”

The Bigger Picture

The bigger picture is even worse than the fact that Sessions refused refuge to victims of horrific domestic violence.  His opinion narrowing eligibility for asylum will also expand the universe of families who fall victim to the administration’s policy of separating families.  It will do so in at least two ways:

First, it will result in more people being criminally prosecuted for unlawful entry into the United States.  This is just simple math: The Sessions DOJ has increasingly started prosecuting people for unlawful entry, so by narrowing the class of persons eligible for asylum, Sessions expanded the number of people now subject to prosecution for unlawful entry.  (Persons who are eligible for asylum are not guilty of unlawfully entering the United States. People who have no grounds for entering the United States may be guilty of unlawful entry.)

On its own, this result is absurd, particularly given that many of the people affected by Sessions’s ruling are fleeing for their lives.  It is even worse given that the prosecutions will result in families being separated: When DOJ arrests the parent of a family and puts them in prison, the parent’s children can’t and don’t go with them to prison.  Instead, the children are forced into the immigration system. And the Trump administration is now housing those children in camps --literally fenced camps for children fleeing violence.

Second, it will result in more people being forcibly separated even if the parent is not criminally prosecuted.  Recall that Sessions told immigration officers that they can deny an asylum application as a matter of discretion, even if an applicant is eligible for, and meets the criteria for, asylum.  Under those circumstances, the individual might be deported and placed in immigration detention, but not prosecuted. And the administration has recently announced that it is insisting on separating families who arrive together at the border, and are then placed in immigration proceedings.  Leah described (some of) the risks of that policy here and here; among other problems, separating families risks jettisoning any prospect of family reunification, as the immigration system has not prioritized keeping track of families.  Instead, the administration is forcing children into fenced, overcrowded camps without their parents, where they will be made to feel like animals in a cage; among other horrors.

In a recent response to criticisms of his zero tolerance policy’s effect on families--memorably citing the Bible to justify himself--Sessions opined that it “should not be a controversial idea” that  “[i]f you don’t meet the requirements for asylum in this country...you do not receive asylum here.” What’s missing from this purportedly basic point is that a mere three days prior, Sessions single-handedly redefined the requirements for asylum in our country. Logical arguments are much easier to make when you get to design the inputs.  

As we said at the beginning:  The sum of the administration’s horrors is always greater than the moral atrocity of any of its individual parts.











The DACA Trap

11/6/19  //  Commentary

The Supreme Court will hear arguments next week in a case about whether the Trump Administration can revoke DACA. But progressives ought to be wary of the long-term effects of prevailing. A win here could very well make it very hard to undo the lax enforcement policies of the current Administration.

Zachary Price

U.C. Hastings College of the Law

Versus Trump: Trump's No Good, Very Bad Day

10/17/19  //  Uncategorized

On this week’s Versus Trump, Jason and Easha break down President Trump's bad day in court on Friday, October 11. On that day, he lost three different lawsuits: one on the "public charge" immigration rule, one on Congress's subpoena power, and one on border wall funding. Listen now!

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Versus Trump: An Impeachment Primer...

10/3/19  //  In-Depth Analysis

Gotcha! No impeachment dessert until you eat your immigration broccoli. On this week’s Versus Trump, Easha (back from parental leave!) and Charlie (just starting parental leave) discuss two immigration losses for the Trump administration. The first concerns Trump’s attempts to roll back court-ordered protections for migrant children; the second, Trump’s attempt to subject more immigrants to expedited removal. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP