On June 11, 2018, United States Attorney General Jeff Sessions released a controversial decision dictating that persecution from gender violence or gang violence in an applicant’s home country no longer fulfills the conditions required to obtain asylum status in the United States. This landmark decision will not only significantly alter the current landscape of immigration law; it will impact thousands of lives – now and in the future.
In asylum cases, the applicant must demonstrate that they are unable or unwilling to return to their home country because they have suffered past persecution or have a well-founded fear of persecution on the basis of “race, religion, nationality, membership in a particular social group, or political opinion.” This opinion, which overturns two crucial decisions made by the Board of Immigration Appeals in 2014 and 2016, specifically addresses what “membership in a particular social group” means.
According to the legal precedent set by federal immigration courts in recent years, the applicant who seeks eligibility for asylum on the grounds of persecution experienced due to membership in a “particular social group” must demonstrate that they are member of a group that is: 1) composed of members who share a common undisputable characteristic; 2) of particularity (different from other groups); and 3) socially distinct in the society they live in. In addition, the applicant must prove that their group membership is the primary motivation for the persecution they face. They also must prove that their home government is either unable or unwilling to protect them.
In an effort to cut down on asylum claims , Attorney General Sessions narrowed the definition of a “particular social group” and made it much harder for victims of gang and gender violence to meet the conditions for asylum. The main argument of Sessions’ opinion is that the prior decisions made by the Board of Immigration Appeals in the domestic violence cases of two women – one from Guatemala and the other from El Salvador – were “wrongly decided”. These decisions were critical because they widened the definition of “membership to a particular social group” to finally include victims of gender violence who have no means to escape their abusive relationships. Sessions argues that the Board of Immigration Appeals did not analyze the cases deeply enough based on the framework established to define a “particular social group”. He also asserts that the applicants did not provide sufficient evidence to prove that they were unable to return to their home countries. His opinion effectively erases all legal precedent that helped protect asylum applicants who are victims of gender violence and victims of violence perpetrated by private parties.
In addition to declaring that gender violence no longer constitutes grounds for asylum eligibility, Sessions denies victims of gang violence from asylum status as well. He justifies this action by explaining that people from all segments of society are victimized by gangs for various reasons; therefore, he reasons, it is impossible to establish them as a “particular social group” that experiences a specific type of persecution. “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” he declares.
This decision obliterates many years of carefully generated legal precedent that expanded the protections of asylum to more people fleeing persecution from their home countries – namely, women who experience domestic abuse, and individuals who are put in grave danger due to widespread gang violence. It also makes it easier for immigration judges to deny asylum cases without even reading them all the way through: “…if an alien’s asylum application is fatally flawed in one respect – for example, failure to show membership in a proposed social group – an immigration judge or the Board need not examine the remaining elements in the asylum claim” .
It is clear that Session’s goal is to reduce immigration to the United States, by whatever means possible. The attorney general and the president have had their attention focused on immigrants that seek refuge in this country. Now, they have the legal tools to achieve their desired aim. Unsophisticated asylum applicants arriving at the boarder will not be able to articulate their “particular social group” to an asylum officer. Their application will be declared “fatally flawed.” Thus, their applications will most likely be denied summarily and their removal will be expedited.
Sessions’ anti-immigrant decision has grave implications for many people. It will spur deportations, break apart families, and cause unnecessary deaths and heartbreak. Women who escaped life-threatening situations of domestic abuse could be returned directly to the hands of their abusers, and individuals who are in grave danger from gang activity may be forced back into the dangerous neighborhoods they once lived in. It also signals a backtrack in gender equality amid an era of flourishing women’s rights movements across the globe. Women, who face systemic oppression and gender violence across Central America and around the world, now have less access to a legal resource that enables them to escape their situations and start new lives.
However, it also indicates that advocates of immigrants and asylum-seekers need to keep fighting, even harder than before. They need to continue to fight for the right of victims of violence and persecution to be heard, their right to seek a better life, and their right to live. Even when the obstacles we face are mounting, we cannot give up fighting for the human rights that we all deserve – no matter where we come from.