Attorney General Jeff Sessions’ decision today in Matter of A-B-, 27 I&N Dec. 315 (A.G. 2018), is a malicious attempt by the Trump administration to overrule long-standing precedent regarding the manner in which private violence can give rise to a viable asylum claim. The National Immigrant Justice Center (NIJC) and our partners across the country are reviewing the decision and determining next steps to protect the rights of asylum seekers in the United States.
Managing Attorney Ashley Huebner, who oversees NIJC’s Asylum Project, reacted to the attorney general’s ruling with the following comment:
“With today’s ruling, the attorney general has upended years of asylum adjudication. His ruling will affect not only domestic violence survivors like A-B-, but also groups fleeing genocide by other ethnic groups, witnesses to human rights abuses targeted by the perpetrators, and individuals fleeing harm due to their sexual orientation or gender identity.”
Lisa Koop, NIJC associate director of legal services, added:
“With the attorney general’s ruling, the Trump administration has unilaterally seized and reshaped of one of our nation’s most complex and consequential areas of law, all in pursuit of realizing an anti-immigrant agenda that has been at the center of this regime since the beginning. This is not how the rule of law is maintained and not how a government that values human life operates.”
Matter of A-B- involves a domestic violence survivor who fled to the United States after she was unable to obtain protection in her own country. Although the Board of Immigration Appeals (BIA) had granted asylum to the woman, identified only as A-B-, Attorney General Sessions certified the case to himself for consideration of broader issues impacting a wide range of asylum claims. Such power is authorized to the attorney general but has seldom been used in recent decades. Attorneys general typically defer to the BIA and the federal courts to interpret immigration law.
In his decision, the attorney general explicitly overrules a prior precedential decision, Matter of A-R-C-G-, which had held that women who are unable to leave a relationship can establish asylum eligibility if they can meet the other elements in the asylum definition, and he castigates the BIA members who issued the A-R-C-G- decision. He also repeatedly adds his own anti-immigrant commentary to the decision, criticizing asylum seekers who, after fleeing their countries, enter the United States without inspection. In appearing to consider women fleeing domestic violence in El Salvador (a country with one of the highest rates of femicide in the world) no different from women who face domestic violence in the United States, the attorney general issued a decision that is completely disconnected from the country condition evidence submitted in the case of Ms. A-B- and others like her.
NIJC soon will issue a practice advisory regarding the impact of this decision for attorneys representing asylum seekers in the Seventh Circuit. It is important to note that this decision does NOT mean that claims based on persecution by non-state actors, including domestic violence, are no longer viable. NIJC reminds attorneys that the Seventh Circuit has long-standing case law recognizing the right to obtain asylum based on violence by non-state actors, including in the context of family and gender violence, including N-L-A- v. Holder, 744 F.3d 425 (7th Cir. 2014); Cece v. Holder, 733 F.3d 2013 (7th Cir. 2013) (en banc); Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011); and Agbor v. Gonzales, 487 F.3d 799 (7th Cir. 2007). Since the attorney general did not overrule these decisions in A-B-, NIJC’s position is that these cases remain good law. NIJC encourages attorneys to review NIJC’s Particular Social Group Practice Advisory for further information regarding the interplay between the BIA's and Court of Appeals’ particular social group case law and between the protected ground and nexus elements in the asylum definition.
NIJC filed a friend-of-the-court brief with the attorney general in April, challenging his recent efforts to unilaterally reevaluate the settled immigration court case, which could have implications for a broad range of asylum seekers.