Attorney General Jeff Sessions has broad power over immigration law, and he has consistently used that power to condemn thousands of immigrants to brutality and possible death in their home countries. On Monday, Sessions issued his most startling decision yet in Matter of A-B-, barring virtually all domestic violence victims from seeking asylum in the United States. Since 2014, when the Board of Immigration Appeals issued its ruling in Matter of A-R-C-G-, it has been settled that these abuse victims may qualify for asylum. But in one fell swoop, Sessions overturned four years of precedent, using dubious procedural maneuvers to prevent these individuals from seeking refuge in the U.S.
Sessions’ revision of America’s asylum policies is especially troubling in light of its radical departure from the statutes, treaties, and legal precedents that govern immigration. His opinion in Matter of A-B- isn’t just dangerous; it’s legally indefensible, a statement of policy that is utterly detached from congressional commands. On Wednesday, I spoke with Archi Pyati, chief of policy at the Tahirih Justice Center, about the ruling’s errors, questionable leaps of logic, and dire consequences for vulnerable families at the border. Our conversation has been edited and condensed for clarity.
Mark Joseph Stern: What does Sessions’ ruling get wrong?
Archi Pyati: First off, Sessions’ opinion is poorly written—there’s a lot of fuzziness. He said you can’t define a social group based on harm, but we know that, and we’re not doing that. A-R-C-G- said that a domestic violence victim can be a part of a social group if she’s married to someone she cannot leave. It did not rest on her abuse. Sessions also said you can’t define a social group simply by providing a description of individuals who share certain traits. But again, we aren’t doing that—we’re talking about a trait they share, their inability to leave their relationships.
Sessions also says that Congress must have left the term “particular social group” ambiguous so that any implementing agency could interpret it. That is not why Congress used that term. It’s because the term comes directly from a treaty. And the U.N. Refugee Agency, the governing body over that treaty, has issued advisory opinions stating that domestic violence victims are potentially part of a social group.
Then there’s this issue of persecution. Under asylum law, you have to be able to show you’re fleeing persecution. Sessions says the persecutor has to be someone the government cannot or will not control; you have to be able to attribute the persecution to the government somehow. That’s just not true. It has never been written anywhere in any decision.
Some advocates are worried that the opinion’s breadth could also hurt LGBTQ asylum-seekers. Do you agree?
Sessions’ opinion doesn’t say anything about LGBT applicants. But we do argue cases on behalf of gay individuals who have been persecuted by family members or community members on account of their sex orientation. The police do nothing about it, and they know the police do nothing about it, so why would they call them? Whether police are persecutors or not, everyone knows they’re not going to help you. The government is not on your side. But how are you going to attribute that persecution to the government? By reaching so far, Sessions’ opinion creates a problem for LGBTQ asylum-seekers.
What happens next in this case? I know Sessions deployed egregious procedural chicanery to rule on the case himself. Is there any chance his decision could be overturned?
This attorney general grabbed this case not from the Board of Immigration Appeals, but from the immigration judge. Now he’s sending it back down to the immigration judge to make a decision. When the judge issues that decision, it can be appealed up to the Board of Immigration Appeals. Then the BIA’s ruling can be appealed up to the circuit court in which the woman is living—in this case, the 4th U.S. Circuit Court of Appeals. We could end up with multiple circuits saying different thing. The 9th U.S. Circuit Court of Appeals, for instance, has affirmed large portions of the A-R-C-G- theory. Once there’s a circuit split, the question would likely go to the Supreme Court.
What will the immediate effect of the decision be? Will it exacerbate conditions at the border?
Customs and Border Protection, Immigration and Customs Enforcement, and other agencies that operate at the border are definitely going to look at this. Before the decision, we were already seeing huge issues with prosecutions at the border, with CBP officers taking away children then telling their parents, “you better plead guilty to charges of illegal crossing if you expect to see your children again.” CBP agents are unabashed in making those statements, even though they’re obviously coercive. People are pleading guilty in order to see their children, then getting placed in ICE detention. Now immigration judges will be looking at the attorney general’s decision when deciding whether women and children have the “credible fear” necessary for asylum.
That’s a problem. The international refugee convention and protocol, which we are obligated to follow, says you can’t send an asylum-seeker back home when they have a credible fear of persecution there. You cannot deport people until they’ve had a chance to make their case. And under our due process protections, they should have a full and fair opportunity. But if agents are taking away immigrants’ children and coercing them into pleading guilty, they have not had that opportunity.
So immigration agents can use Sessions’ decision to turn away abuse victims who hoped to seek asylum, telling them they have no hope of succeeding and threatening them with prosecution instead. That sounds like a violation of international law to me.
The attorney general’s decision will result in violations of international law. We already knew many women were being turned away at the border, even though they have a credible fear of persecution. The attorney general is prosecuting people with the express purpose of discouraging them from continuing their application for asylum. All of that definitely goes against international law. This decision is contrary to the spirit and the letter of the treaty.
We should connect all of this to what’s happening at the border. Prosecuting immigrants seeking asylum and separating families at the border are part of the same exercise. The attorney general is creating a very effective legal wall to block women and children trying to seek asylum in this country. And Monday’s decision was one more brick in that wall.
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