For critics, including former immigration judges, the unilateral decision -- that victims of domestic abuse and gang violence generally will not qualify for asylum under federal law -- undoes decades of carefully deliberated legal progress.
Aminta Cifuentas suffered weekly beatings at the hands of her husband. He broke her nose, burned her with paint thinner and raped her.
She called the police in her native Guatemala several times, but was told they could not interfere in a domestic matter, according to a court ruling. When Cifuentas’ husband hit her in the head, leaving her bloody, police came to the home but refused to arrest him. He threatened to kill her if she called authorities again.
So in 2005, Cifuentas fled to the U.S. “If I had stayed there, he would have killed me,” she told the Arizona Republic.
And after nearly a decade of waiting on an appeal, Cifuentes was granted asylum in the U.S. The 2014 landmark decision by the Court of Immigration Appeals set the precedent that women fleeing domestic violence were eligible to apply for asylum. It established clarity in the long-running debate over whether asylum can be granted on the basis of violence perpetrated in the “private” sphere, according to Karen Musalo, director for the Center for Gender & Refugee Studies at the University of California, Hastings College of the Law.
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But on Monday, Attorney General Jeff Sessions overturned the precedent set in Cifuentas’ case, deciding that victims of domestic abuse and gang violence generally will not qualify for asylum under federal law. (Unlike the federal courts established under Article III of the Constitution, the immigration court system is part of the Justice Department.)
For critics, including former immigration judges, the unilateral decision undoes decades of carefully deliberated legal progress. For gender-studies experts, such as Musalo, the move “basically throws us back to the Dark Ages, when we didn’t recognize that women’s rights were human rights.”
“If we say in the year 2018, that a woman has been beaten almost to death in a country that accepts that as almost the norm, and that we as a civilized society can deny her protection and send her to her death?” Musalo said. “I don’t see this as just an immigration issue … I see this as a women’s rights issue.”
Sessions’ decision reversed a 2016 ruling by the Justice Department’s Board of Immigration Appeals, the body responsible for interpreting U.S. asylum law, granting asylum to a Salvadoran woman who said she was abused by her husband. Musalo is co-counsel in the case.
Sessions’ reasoning hinged on the argument that domestic-violence victims are not generally persecuted as members of a “particular social group,” according to his ruling. Under federal law, asylum applicants must show that either “race, religion, nationality, membership in a particular social group, or political opinion … was or will be at least one central reason for” their persecution.
In the precedent-setting Cifuentas case, the Board of Immigration Appeals held that an applicant can qualify for asylum as a member of a particular social group of “married women in Guatemala who are unable to leave their relationship.” To support its ruling, the board noted that Guatemala has a culture of “machismo and family violence.” Spousal rape is common and local police often fail to enforce domestic-violence laws.
Sessions rejected that reasoning. “When private actors inflict violence based on a personal relationship with a victim,” Sessions wrote, “then the victim’s membership in a larger group may well not be ‘one central reason’ for the abuse.”
“The prototypical refugee flees her home country because the government has persecuted her,” Sessions wrote. “An alien may suffer threats and violence in a foreign country for any number of reasons relating to her social, economic, family, or other personal circumstances. Yet the asylum statute does not provide redress for all misfortune.”
As Kara Lynum, an immigration lawyer in Minnesota, tweeted, “Sessions thinks these women aren’t eligible for asylum because their husbands are only violent to them – not all women.”
A group of 15 retired immigration judges and former members of the Board of Immigration Appeals wrote a letter in response to Sessions’ decision, calling it “an affront to the rule of law.”
The Cifuentas case, they wrote, “was the culmination of a 15 year process” through the immigration courts and Board of Immigration Appeals. The issue was certified by three different attorneys general, one Democrat and two Republican. The private bar, law-enforcement agencies, including the Department of Homeland Security, all agreed with the final determination, the former judges wrote. The decision was also supported by asylum protections under international refugee treaties, they said.
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote.
Courts and attorneys general have debated the definition of a “particular social group” since the mid 1990s, according to Musalo.
“It took the refugee area a while to catch up with the human-rights area of law,” Musalo said.
A series of cases led up to the Cifuentas decision. In 1996, the Board of Immigration Appeals established that women fleeing gender-based persecution could be eligible for asylum in the U.S. The case, known as “Matter of Kasinga,” centered on a teenager who fled her home in Togo to escape female genital cutting and a forced polygamous marriage. Musalo was lead attorney in the case, which held that fear of female genital cutting could be used as a basis for asylum.
“Fundamentally the principle was the same,” as the one at stake in Sessions’ ruling, Musalo said. Female genital cutting, like domestic violence in the broader sense, generally takes place in the “private” sphere, inflicted behind closed doors by relatives of victims.
Musalo also represented Rody Alvarado, a Guatemalan woman who fled extreme domestic abuse and, in 2009, won an important asylum case after a 14-year legal fight. Her victory broke ground for other women seeking asylum on the basis of domestic violence.
Then, after years of incremental decisions, the Board of Immigration Appeals published its first precedent-setting opinion in the 2014 Cifuentas’s case, known as “Matter of A-R-C-G.”
“I actually thought that finally we had made some progress,” Musalo said. Though the impact wasn’t quite as pronounced as many experts had hoped, it was a huge step forward for women fleeing gender-based violence in Latin America and other parts of the world.
Now, Musalo says, Sessions is trying to undo all of that. And he’s doing so at a particularly monumental time for gender equality in the U.S. and worldwide.
“We’ve gone too far in society with the MeToo movement and all of the other advances in women’s rights to accept this principle,” Musalo said.
“It shows that there are these deeply entrenched attitudes toward gender and gender equality,” she added. “There are always those forces that are sort of the dying gasp of wanting to hold on to the way things were.”
Sessions assigned the 2016 case to himself under his power as attorney general, and said the move will help reduce the growing backlog of 700,000 court cases.
But relatively few refugees are granted asylum annually. In 2016, for example, nearly 62 percent of applicants were denied asylum, according to Syracuse University’s Transactional Records Access Clearinghouse.
Paul Wickham Schmidt, a retired immigration judge and former chairman of the Board of Immigration Appeals, wrote on his blog that Sessions sought to encourage immigration judges to “just find a way to say no as quickly as possible.” (Schmidt authored the decision in the Kasinga case, extending asylum protection to victims of female genital mutilation.)
Sessions’ ruling is “likely to speed up the ‘deportation railway,'” Schmidt wrote. But it will also encourage immigration judges to “cut corners, and avoid having to analyze the entire case,” he argued.
“Sessions is likely to end up with sloppy work and lots of Circuit Court remands for ‘do overs,'” Schmidt wrote. “At a minimum, that’s going to add to the already out of control Immigration Court backlog.”