Last week, the Department of Homeland Security released a policy memorandum providing guidance on how United States Citizenship and Immigration Services officers should implement Attorney General Jeff Sessions’ decision last month to do away with asylum for most domestic violence survivors. Sessions’ decision in Matter of A–B–, a case involving a domestic violence survivor’s application for asylum, overturned a prior ruling that explicitly recognized that those fleeing domestic violence may qualify for asylum. With the A–B– decision and accompanying guidance, the administration aims to reject decades of reform by flatly stating that these claims “in general” will not be grounds for asylum relief. These steps confirm the administration’s efforts to thwart our country’s prior commitments to end gender violence and support survivors, and to place the United States outside the global consensus, flouting international law.
The experience of a CUNY Law School clinic client who, for her protection, we’ll call F.A., offers but one example of why asylum law must continue to rightly recognize claims by those who suffer severe domestic violence, and whose governments are unwilling or unable to stop it. A mother and grandmother who now singlehandedly supports her children and grandchildren, F.A. was raped and kidnapped by her abuser as a young girl. Forced to live with her rapist, F.A. endured brutal physical, sexual, and emotional abuse. The scars, dislocated joints, internal organ damage, and mental trauma from this abuse remain to this day, telling the story of the 40 years of her abuse. Her doctors have concluded that her current physical and mental health symptoms are consistent with long-term sexual, physical, and emotional abuse.
She was beaten when she tried to leave the home, beaten when she tried to get a job, beaten when she sewed clothes and sold them. She made several failed attempts to escape and hide from her ex, but he found her every single time. She went to the police multiple times and tried to avail herself protections of the court system, without any success. This wasn’t a singular incident by a random private actor, but a systematic and intentional persecution with the support or acceptance of her government and society. “The laws don’t protect you until you are killed,” Ms. F.A. said. The United States should provide a refuge for F.A. and others like her.
The A–B–. decision seeks to deny asylum for an entire class of people, even though some fleeing domestic violence may technically qualify under Sessions’ extremely narrow interpretation of the law. Dangerously, the ruling suggests that virtually all claims related to private acts of violence will not succeed. Some asylum-seekers may now be turned away before they can even make their case. Gatekeeper officers who make the preliminary decision about whether an asylum-seeker may even be allowed to enter the country to make a claim will apply the new restrictive standards to deny entry to and/or deport individuals before they can present their valid claims. As a result, survivors may not ever be able to bring their legitimate claims and will be summarily sent back to the hands of their persecutors, exposing them to life-threatening harm.
The A–B– decision and accompanying guidance entirely ignore the voluminous body of international treaties and interpretive pronouncements, as well as reports by authorities including the United Nations, the World Bank and multinational companies, recognizing both the epidemic of gender violence, including domestic violence, and States’ accompanying obligations to take meaningful steps to end the violence and to assist survivors. Those authorities recognize that formal and informal laws and policies in some countries contribute to a culture of impunity that allows gender violence to persist. The decision and guidance further flout recognized authorities by relying on outdated stereotypes, such as the notion that domestic violence is a “private” or “purely personal” matter involving “individualized” circumstances. The new approach authorizes denial of claims based on “credibility” determinations, yet it treats survivor accounts skeptically and disparagingly. This approach flies in the face of scientific developments detailing the impact of trauma on memory and the #MeToo movement’s spotlight on why claims of abuse should be taken seriously.
Just over 28 years ago, then–Delaware Sen. Joe Biden introduced the Violence Against Women Act onto the Senate floor. With VAWA’s bipartisan support and eventual passage in 1994, the United States took a stand that gender violence, including domestic violence, was a national problem meriting a strong governmental response. Crucially, VAWA created a pathway for battered immigrants to obtain legal status without dependency on their abusive partners. Reflecting on VAWA’s 20th anniversary, Vice President Biden observed that when it was passed: “[F]ew people wanted to talk about violence against women as a national epidemic, let alone something to do something about. … It was a family affair. … ”
The A–B– decision aims to resurrect those times. In response to the A–B– decision, over 220 law professors who teach family law, domestic violence law, international human rights law, and who teach in and direct law school clinics representing survivors of domestic and other forms of gender-based violence, sent a letter urging the attorney general to revoke the decision. The attorney general should heed that call and should honor the commitment the United States made nearly 30 years ago. Anything less takes a step backward, and marks a sharp and dangerous departure from the global consensus embracing safety, dignity, and equality.