Untold numbers of victims of violence, including women abused by their partners, could be denied asylum and deported back to danger at home because of a new ruling Attorney General Jeff Sessions issued Monday.
Sessions, as head of the Department of Justice, oversees all immigration courts and has extraordinary power to overrule decisions of judges and the Board of Immigration Appeals and to set precedents. Unlike other courts, where judges are part of the judicial branch, immigration judges report to the attorney general, whose interpretation of the law — and the views that shape it — trump their own. He reminded the judges that he’s the boss during an annual Executive Office of Immigration Review training on Monday, telling them it will be their “duty, of course,” to carry out his new order.
Now he’s using his power to restrict who can receive asylum, arguing a current lack of clarity and “decisions that hold out hope where a fair reading of the law gives none ... have cruelly hurt many people.”
His solution to stop “cruelly hurting people” is to deny relief to more of them.
Sessions has made clear for years that he believes most asylum claims are invalid or straight-up fraudulent, and the administration is pushing for legal changes by Congress that would allow the government to turn away or quickly deport more people who claim they fear returning to their native countries. Sessions noted during his speech Monday that most asylum applicants are already deemed ineligible by the courts.
Now that percentage is certain to increase. Sessions issued an order on a case he referred to himself, called the Matter of A-B-, overturning the Board of Immigration Appeals’ decision that a Salvadoran woman should receive asylum based on abuse she suffered at the hands of her husband and the police’s lack of action to stop it.
Sessions’ decision will have implications far beyond A-B- herself. Sessions also overturned a 2014 precedent from the Board of Immigration Appeals in a separate case that has been cited in numerous asylum cases of women who suffered domestic violence. Many of the immigrants who come to the U.S. seeking asylum are Central Americans fleeing violence, often from gangs or their partners. They’re not all crossing the U.S.-Mexico border illegally; many go to ports of entry and ask for help, which is legal.
Under U.S. and international law, asylum is intended for people with a fear of persecution in their native country based on race, religion, political opinion, nationality or membership in a particular social group. The 2014 Board of Immigration Appeals ruling referred to as A-R-C-G- allowed judges to consider women who suffered domestic violence and can show they were unable to get help or escape their abusers to be considered a particular social group.
Sessions rejected that ruling, presenting a narrower set of criteria for asylum that could exclude not just domestic violence victims, but also people who faced threats by gangs or other non-government forces. “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” he wrote.
He wrote that asylum-seekers must demonstrate that they are in a particular social group that exists “independently of the harm asserted in an application for asylum” ― meaning it wouldn’t apply to groups defined by their experience of violence. He also said that they must show that “alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.”
Overall, he called for a higher bar of proof for asylum than the one many judges have been using, which he indicated in his remarks is too low.
“Asylum was never meant to alleviate all problems — even all serious problems— that people face every day all over the world,” he said in his speech Monday morning.
Interpreting asylum parameters more narrowly will create more consistency across the courts and skew more closely to the law as written by Congress, Sessions argued at the event Monday. But he also cited his top goal: to prevent more people from coming to the U.S. in the first place.
“The world will know what our rules are, and great numbers will no longer undertake this dangerous journey,” he said. “The number of illegal aliens and the number of baseless claims will fall. I’m confident that’s true. A virtuous cycle will be created, rather than a vicious cycle of expanding illegality.”
Sessions’ ruling could be challenged in a federal court, but for now will be the precedent immigration judges have to follow.
This is the second decision by Sessions in a case he referred to himself. In May, he limited judges’ authority to administratively close cases, something they do at times when an immigrant has an outside issue that needs to be resolved, such as a pending visa application with the government or an appeal on a criminal conviction. Sessions argued judges were using closures too often rather than keeping them on the docket or ruling more quickly.
Sessions has taken other steps to push immigration judges to act more quickly as well. DOJ implemented a quota system and told judges their performance would be evaluated in part on whether they decided 700 or more cases each year. He reminded judges in the room of that quota and that the need to act efficiently.
Such changes concern immigration attorneys and advocates. It can take time for immigrants to find legal representation and build a case, particularly for something as complicated as an asylum claim. People with pending visa applications with U.S. Citizenship and Immigration Services are at the mercy of that agency to process and approve them, running the risk that they could be ordered removed from the U.S. by an immigration judge while they waited.
Sessions also referenced another move in the administration’s immigration crackdown: the recently enacted “zero tolerance” policy in which parents who cross the border illegally with their children are being referred for criminal prosecution rather than being put directly in deportation proceedings. This policy has resulted in thousands of children being split from their parents, who often can’t even find out where they are. Last month, a Honduran man committed suicide in jail after being separated from his family.
All of the administration’s efforts to reform immigration courts are done with one aim in mind, Sessions said.
“All of us should agree that, by definition, our goal should be to have zero illegal immigration. That’s what we want.”