Asylum for Victims of Domestic Abuse

Some of my proudest moments representing clients before Immigration Courts has been when I have won asylum for women from Central America who have been the victims of domestic abuse.  Unfortunately, in the Trump Administration's crack down on immigration, the future of such cases are seriously in doubt. 

Through asylum, the United States grants protection to people who find their life or well-being in jeopardy in their home country.  The legal standard for asylum is whether a person was a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group.

Congress established the asylum standards through the Refugee Act of 1980.  In that Act, Congress did not define the term "particular social group."  The term, therefore, has been the subject of much litigation in asylum cases.  An entire set of cases from the Board of Immigration Appeals ("BIA), which is the administrative agency that normally hears appeals from Immigration Court decisions, has addressed this term, and developed case law establishing how it is to be defined in individual asylum cases.

In 2014, the "BIA" issued a decision in a case called Matter of A-R-C-G-.  Through that case, the BIA held that "married women in Guatemala who are unable to leave their relationship" constituted an appropriate particular social group upon which an asylum claim can be based.  After the BIA issued its decision, immigration lawyers would slightly modify the approved particular social group to fit the facts of their case.  Thus, a lawyer could define the particular social group to fit the country of origin, such as "married women from El Salvador . . . ."  Or, if the woman was in a committed relationship, but not legally married, the particular social group could be defined as "women in a committed relationship . . . ."

In June of 2018, however, Attorney General Jeff Sessions issued a decision in the immigration appeal of Matter of A-B-.  By statute, the Attorney General can choose to adjudicate an appeal from the Immigration Court himself, and issue a decision that is binding on all Immigration Judges.  Like Matter of A-R-C-G-, Matter of A-B- involved an asylum claim based on a Central American woman who was the victim of domestic violence.  The Attorney General overruled Matter of A-R-C-G-, contending that the BIA did not do an appropriate analysis of the term "particular social group."  Instead, according to the Attorney General, the BIA merely issued a decision based on a concession by both parties.  That is, the lawyers from the Department of Homeland Security, who represent the U.S. Government in appeals from Immigration Courts, served under the Obama Administration, and agreed with the asylum applicant that "married women in Guatemala who are unable to leave their relationship" was an appropriate particular social group.  Attorney General Sessions believed that it was not appropriate for a decision which did not go through the full analysis as set forth in the previous BIA to establish a general rule concerning the particular social group.

While that holding alone was dispositive of the case in Matter of A-B-, the Attorney General went further, proclaiming that any case based on private criminal activity, such as domestic violence and gang activity, were not likely to qualify for asylum.  This statement was not necessary to decide the case at hand, and thus lawyers would call it dicta.  Dicta is not a binding principle of law for lower courts.  However, many Immigration Judges read the Attorney General's statement as more than just mere dicta, and began using it as a rule to decline asylum applications based on domestic violence.

Matter of A-B- had consequences beyond the Immigration Court context.  Pursuant to U.S. law, if an alien is apprehended within 100 miles of the border less than 14 days after entering the United States, that alien can be expeditiously removed from the United States by an officer from Customs and Border Protection.  This is called expedited removal.  However, if that alien has a credible fear of persecution if returned to his or her home country, expedited removal does not apply, and the alien is referred to Immigration Court to have an asylum petition adjudicated.

U.S. Citizenship and Immigration Services ("USCIS"), which administers asylum claims made outside of the Immigration Court system, created a process to determine when an alien has a credible fear of persecution.  Called "credible fear determinations," an asylum officer interviews the alien in a non-adversarial setting, and determines if that alien would likely be successful in filing an asylum application.  After Matter of A-B-, USCIS issued policy guidance that victims of gang violence or domestic violence could not receive a positive credible fear determination.

Twelve aliens who had been denied a positive credible fear determination sued the Attorney General in the U.S. District Court for the District of Columbia.  In December of 2018, U.S. District Judge Emmet G. Sullivan issued a decision in the case of Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).  Judge Sullivan held that the general rule that an asylum applicant whose claim was based on domestic violence or gang violence could not qualify for a positive credible fear determination was arbitrary and capricious.  He therefore issued an injunction preventing the U.S. Government from applying that portion of Matter of A-B- in credible fear determinations.  The Government has, of course, appealed from this decision.

Specifically, the Judge found that there was no legal basis for a categorical denial of asylum claims based on domestic violence or gang related activities.  Furthermore, such  a rule would run counter to the individualized analysis required in every case by the statute.

Thus, the future of asylum claims based on domestic violence and gang violence remains in question.  On the one hand, a federal court has found a categorical ban, at least in the context of credible fear determinations, to be arbitrary and capricious.  On the other hand, the Trump Administration continues to fight for the ability to deny such asylum claims.

At the heart of Attorney General Sessions' reasoning was that domestic violence and gang-related activities were private crimes, and not the result of government action.  The basis of this argument is that asylum is meant to address persecution perpetrated by a foreign government, not a private citizen.  However, the legal standard in asylum cases is whether the persecution would be perpetrated by the government, or whether the government would be unable or unwilling to control the actions of the perpetrators.

In this regard, the argument in favor of granting asylum to victims of domestic violence centers on proving that the society is one where domestic violence is accepted, and which the government does nothing to address the problem, or is unable to address the problem.  That is, the government cannot turn a blind eye to the problem of domestic violence.

With respect to Central American countries, such as Honduras and El Salvador, the argument has been that the culture of machismo dominates society.  That is, women in such cultures are viewed as mere property of the male with whom they have a relationship.  Therefore, the government does not interfere when a woman becomes the victim of domestic violence.  Whether the applicant can prevail depends on the quality of evidence that can be presented demonstrating a patriarchal culture, and the acceptance of violence against women as a norm.  Assuming the applicant can demonstrate such government inaction on the issue of domestic violence, that applicant should be able to receive the protection of the United States through asylum.

By: William J. Kovatch, Jr.

As Attorney General, Jeff Sessions Can Have Substantial Influence Over the Law of Deporrtation ans emoval

On Friday, President-Elect Donald Trump announced that Alabama Senator Jeff Sessions was his choice to serve as Attorney General.  Sessions has made it clear that he is anti-immigration.  Not anti-illegal immigration.  He is anti-immigration.  Painting with a wide brush, Sessions has made broad statements concerning the desirability of immigrants from the Dominican Republic, for example, claiming Dominicans as a class file fraudulent visa petition and that they have no provable skills that would benefit the United States.  Indeed, he has made statements that immigration -- legal immigration -- has been harmful to the United States.

The question arises as to exactly what influence Sessions would have over immigration policy if he were confirmed as Attorney General.  The answer is that the influence can be considerable, particularly with respect to immigration policy in deportation and removal cases.

The Department of Justice does not have the day to day responsibility for enforcing and administering the immigration law of the United States.  That role belongs to the Department of Homeland Security.  But this doe not mean that the Department of Justice has no say or influence over how immigration law is interpreted and enforced.

First the Department of Justice is responsible for representing the United States in litigation before the U.S. courts.  This means that the Justice Department, through the Office of the U.S. Attorney, assesses litigation risk and advises the agency being sued. 

This can mean that the Justice Department injects a bit of reasonableness when an agency is being sued.  The U.S. Attorney's Office can advise an agency that its action is not likely to convince a judge.  In this way, the Justice Department can subtly influence agency policy.

But the Justice Department can also agree to take a more extreme litigation position, thereby encouraging an agency to push the boundaries of the law.

The more important role that the Department of Justice plays in U.S. immigration law is through the operation of the administrative courts used to enforce the deportation and removal law.

Contrary to what many people believe, the U.S. Government cannot simply pick up a person who is present in the country in violation of the immigration law and deport him or her.  The U.S. Constitution guarantees the right to due process of law.  That is, it has to be proven that a person does not have legal status in the United States or that the person has violated that status by, for example, committing a crime.  Then, even if a person is present in the United States in violation of the immigration law, there may still be legal grounds for relief to allow that person to stay, such as asylum law.  Some entity has to make determination.

The entity that makes that determination is the Executive Office of Immigration Review (EOIR), which is housed by the Department of Justice.  The EOIR consists of the first level trial courts, that is the Immigration Courts, and the appellate body, known as the Board of Immigration Appeals (BIA).

In the first place, the Attorney General influences how immigration law is interpreted and enforced through the power of appointment and supervision.  The Attorney General appoints the Immigration Judges, the Members of the BIA, the Chief Immigration Judge and the Chair of the BIA.  Thus, so long as the people appointed meet the minimum requirements of competency, the Attorney General can be sure to appoint people who will interpret immigration law congruent with his thinking.  The EOIR also ensures of the training of Immigration Judges and BIA Members.  Such training programs can be used to subtly influence how the law is viewed and interpreted.

More importantly, by developing case law, the BIA, and indeed the Attorney General, can issue opinions binding on Immigration Judges in similar cases.  The BIA publishes its case decisions.  The BIA can vote to make a decision precedential, which means it announces an interpretation of the law that is binding on Immigration Judges.  The Attorney General may also decide to take jurisdiction over a case on appeal, and issue a decision announcing an interpretation of the law that is precedential.  Indeed, if the Attorney General takes jurisdiction over the case, he does not need to give the parties to the case an opportunity to brief the issues before him.

This power has been used in the past, for example, to define what constitutes a crime involving moral turpitude.  This can be an issue where a state criminal law defines an offense so broadly that it can include both behavior that is morally reprehensible, and behavior that isn't. 

This is the case with assault and battery.  To be considered a crime involving moral turpitude, assault and battery must be a crime of violence.  But, in many states, assault and battery can include a mere unwanted touching, such as a tap on the shoulder.  Moreover, when a defendant pleads guilty, the plea agreement may be worded so as to avoid admitting to actions that would constitute a crime of violence.  This leaves Immigration Judges in a tough position in determining if the conviction before them is actually a deportable offense or not.

In this situation, the Attorney General took jurisdiction over a case, and announced a rule that Immigration Judges could look beyond the record of conviction to determine if an assault and battery is a crime of violence, and thus a crime involving moral turpitude.  The Attorney General's decision permitted the Immigration Judge to go so far as to make conclusions based on the police report.  This particular rule was then the subject of extensive legislation, and has since been withdrawn by a successive Attorney General decision.

Nonetheless, the Attorney General can have substantial sway over immigration law as it applies to deportation and removal cases.  Given Sessions' history, I would expect that immigration law as it applies to deportation and removal cases will be interpreted more harshly.  Indeed, I would even expect interpretations that are constitutionally questionable for the sole purpose of pushing the envelope and seeing if the courts permit it.

By:  William J. Kovatch, Jr.
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