Jurisprudence

Domestic Abuse Victims Need Not Apply

Jeff Sessions looks poised to bar some of the world’s most vulnerable women from getting asylum in America.

Attorney General Jeff Sessions is seen at the California Peace Officers' Association 26th Annual Law Enforcement Legislative Day on March 7, 2018 in Sacramento, California.
Attorney General Jeff Sessions is seen at the California Peace Officers’ Association 26th Annual Law Enforcement Legislative Day on Wednesday in Sacramento, California.
Stephen Lam/Getty Images.

On Christmas Day of 2005, Aminta Cifuentes illegally crossed into the United States to seek asylum. Cifuentes, a Guatemalan citizen, had fled her abusive husband, who beat her weekly, raped her, and once poured turpentine on her skin in an attempt to set her on fire. Cifuentes had called the police on her husband several times, but the officers told her they wouldn’t interfere in a marital relationship. Her husband then threatened to kill her if she continued to call the police, or if she left him. She fled to America to save her life.

At first, an immigration judge denied Cifuentes’ asylum application. He reasoned that she had suffered from “criminal acts, not persecution,” and was thus eligible for deportation. In 2014, however, the Board of Immigration Appeals reversed the judge in a landmark decision that allowed victims of domestic violence to apply for asylum on the basis of their abuse.

Attorney General Jeff Sessions now appears poised to personally overturn that rule and once again prohibit women like Cifuentes from seeking refuge in America.

The story of Sessions’ looming assault on the rights of abused asylum-seekers begins with an ambiguity in U.S. immigration law. Under federal statute, asylum applicants may receive relief only if they can show they were persecuted because of at least one of five traits: race, religion, nationality, political opinion, or “membership in a particular social group.” That last category has proved difficult to define, but under current board precedent, an individual qualifies if she can prove her “social group” shares a “common immutable characteristic” that can be “defined with particularity” and is “socially distinct within the society in question.” So, for instance, gay and transgender people fleeing persecution may belong to a “particular social group” that qualifies them for asylum.

Do victims of domestic violence like Cifuentes qualify as well? In 2014, the Board of Immigration Appeals said yes, spelling out its reasoning in a meticulous opinion. First, the board held that these women share two common, immutable traits: their sex (female) and marital status (unable to safely dissolve their marriage). Second, the board found that each element of this group—married women who cannot leave their relationships—can be “defined with particularity.” It noted that not every woman in an abusive relationship may fall into this category; instead, immigration judges must ascertain women’s practical ability to separate from their violent spouses. As the board explained:

We point out that a married woman’s inability to leave the relationship may be informed by societal expectations about gender and subordination, as well as legal constraints regarding divorce and separation. In this case, it is significant that the respondent sought protection from her spouse’s abuse and that the police refused to assist her because they would not interfere in a marital relationship.

Finally, the board found that women like Cifuentes are “socially distinct” because “Guatemalan society” perceives them “as a group.” It pointed to “unrebutted evidence” that “Guatemala has a culture of machismo and family violence”; that spousal rape remains “a serious problem”; and that Guatemalan police frequently decline to enforce domestic violence laws. Taken together, the board concluded, these factors demonstrate that “married women in Guatemala who are unable to leave their relationship” constitute “a particular social group” that qualifies for asylum. Cifuentes had shown she faced persecution in part because of her membership in this group; therefore, she would not be deported.

This precedent has not been a panacea for abused asylum-seekers. The decision’s focus on marriage initially excluded some women, but in 2015 the board clarified that it was a woman’s “domestic relationship,” not legal marriage, that mattered most. Immigration judges have also occasionally ignored evidence that women’s husbands have threatened to murder them. But on the whole, the decision has been an indubitable boon to asylum-seekers trapped in relationships with violent men whom the law will not restrain.

Thanks to Sessions—and an idiosyncrasy in federal law—all of that is probably about to change. When the Board of Immigration Appeals issues a precedential opinion, as it did in the case of Cifuentes, it is binding on the Department of Homeland Security. Typically, these decisions can only be overturned by a federal court, a future ruling by the board, or a new law. But a statute also authorizes the attorney general to reverse the board’s cases.

Sessions is an asylum skeptic who alleged (falsely) in 2017 that the U.S. asylum system suffers “rampant abuse and fraud.” He has already overturned an Obama-era opinion issued by the board that guaranteed due process to asylum-seekers by allowing them to go before a judge before their case is rejected. On March 7, Sessions issued an ominous one-page order putting on hold a recent decision of the immigration appeals board and taking control of it himself. He invited parties to the case to brief him on the question of whether “being a victim of private criminal activity” constitutes a “particular social group.”

Initially, many observers assumed that the case involved a victim of gang violence. But on Monday, CNN reported that it actually centered around a woman fleeing her abusive ex-husband. The board held that the woman qualified for asylum, citing the Cifuentes precedent. There is only one plausible reason why Sessions would freeze that ruling and take the case himself: to reverse the board, vacate that precedent, and hold that domestic violence victims no longer qualify for asylum. At that point, only a federal appellate court could overrule Sessions—a long shot, as the courts must defer to his interpretation of the law.

This move would strike a devastating blow against the thousands of women and children who arrive in America each year seeking refuge from domestic abuse. It would not help to mitigate any “abuse and fraud,” since no one seriously claims that the Cifuentes decision led to an uptick in asylum deception. These women pose a danger to no one. There aren’t many citizens who would choose to turn them away. Unfortunately, one of the few Americans who doesn’t feel compelled to protect them is the attorney general of the United States.

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Mark Joseph Stern covers courts and the law for Slate.