In the D.C. federal district court today, we, the Center for Gender & Refugee Studies, together with the American Civil Liberties Union, filed suit to stop the U.S. government from shutting out asylum seekers fleeing domestic violence and gang persecution. Specifically, we challenge a June 11, 2018 decision by Attorney General Jeff Sessions, called Matter of A-B-, from being applied in “expedited removal”—a streamline deportation process that denies people their day in court. The A-B– decision was dead wrong, and should not be used to screen out asylum seekers at the border. Yet, this is precisely what happened to the plaintiffs we represent in our lawsuit, Grace v. Sessions.
Sessions’ recent decision targets protections for refugees seeking asylum on the basis of domestic violence. Through Matter of A-B-, Sessions overruled a landmark decision by the Board of Immigration Appeal (the nation’s highest immigration court) called Matter of A-R-C-G–, which in 2014 recognized the viability of these claims. While Sessions was at it, he included broad generalizations in A-B– to try to close the door on gang-based asylum as well. These musings were dicta—not binding on any immigration judges—because Ms. A.B., whom our Center represented, did not present a gang asylum claim.
The A-B-decision errs on many levels, displaying deep ignorance of the gender dynamics of domestic violence and utter disregard for the letter and spirit of domestic and international refugee law. At its core, it fundamentally rejects women’s rights as human rights, characterizing over 15 years of rape and physical violence perpetrated against Ms. A.B. as a “personal” dispute outside the scope of refugee protection. In the era of #MeToo, this view is downright shocking.
In a July 11 memorandum, the U.S. Citizenship and Immigration Services issued formal guidance to quickly implement Matter of A-B– in the expedited removal process. Specifically, it directed asylum officers conducting screenings of asylum seekers at the border to follow the misguided approach in A-B-.
Under statute, that screening, called a “credible fear interview,” looks only to whether there is “a significant possibility . . . that the alien could establish eligibility for asylum.” It does not require full, or even more-likely-than-not, eligibility for asylum. Congress intended this low threshold to ensure that meritorious claims get their day in court. Indeed, an implementing regulation recognizes that “novel or unique issues” deserve consideration in a full immigration hearing.
There are good reasons for this low screening standard. Credible fear interviews take place in coercive settings—remote ICE detention centers indistinguishable from prisons—with limited access to counsel. Applicants have little knowledge of asylum law and face huge hurdles in gathering evidence while detained, and officers have minimal time for cases. And asylum seekers fleeing already-traumatic circumstances in their home countries have often suffered a migration journey rife with extreme deprivation and physical and sexual violence.
Yet the July 11 guidance violates the statutory screening threshold, ratcheting up the showing an applicant must meet far beyond a “significant possibility” in inter-related ways:
First, it states a general rule that claims rooted in domestic violence and gang violence should fail, directing in bold that “[i]n general, . . . claims based on membership in a putative particular social group defined by the members’ vulnerability to harm of domestic violence or gang violence committed by non-government actors will not establish the basis for . . . a credible . . . fear of persecution.” But there is no categorical bar on these claims, and credible fear determinations must, like asylum adjudications, be made case by case.
Second, the guidance directs officers to implement Matter of A-B– in multiple ways that conflict with the domestic and international refugee definition. For example, it subjects claims based on persecution by non-State actors to a heightened standard, demanding that applicants show that their governments “condoned” or were “completely helpless” to protect them. In fact, the settled standard, adopted into our immigration law, requires only that home governments be “unable or unwilling” to protect applicants. Additionally, the guidance states generally that applicants with a “personal relationship” to their persecutors will fail to show harm “on account of” protected ground. But established jurisprudence extends refugee protection to situations that inherently or predominantly involve persecutors with close ties to their victims, particularly in gender-based contexts. These include claims based on female genital cutting, forced marriage, honor killing, sexual orientation “conversion,” and incest — overwhelming perpetrated by family or community members, and recognized by federal appeals courts as bases for asylum.
Third, the new guidance instructs asylum officers to simply ignore circuit court case law in conflict with A-B-, even though large swaths of A-B– are pure dicta. But federal courts and not asylum officers are the ultimate arbiters of the law. In conducting an initial screening of applicants’ claims, officers should not be able to disregard decisions of the federal courts of appeals.
What happened to each of our 12 plaintiffs in expedited removal — including three children appearing by and through their mothers — demonstrates the unlawfulness of the new credible fear policies. Each presented meritorious asylum claims to a screening officer, and each was found credible. Grace* (pseudonyms marked with *), an indigenous asylum seeker, fled Guatemala to escape years of horrific beatings and sexual assaults by her non-indigenous partner. Her abuser’s gang-member sons from another relationship also terrorized Grace and her children. Gio* left El Salvador to save his life after being targeted by two rival gangs. One broke his arm and almost threw him into a well, and the other threatened to kill him after he refused to deal drugs due to his deep Christian faith. Carmen* came with her young daughter from El Salvador to escape decades of horrific sexual abuse by her husband, as well as dire threats from gangs. Her abuser routinely raped, stalked, and threatened her, even after she tried to leave him. And Mona* fled her country after a gang brutally murdered her long-term partner — a special military officer in a unit dedicated to combating gangs — and threatened to kill her next. Each of them, and our seven other plaintiffs, should have passed their credible fear interviews and had a full hearing. The government denied all of them that opportunity.
Foreclosing our clients’ cases not only violates the credible fear standard, it also deprives them of a meaningful opportunity to present their claims, in contravention of their due process rights. It strips them, too, of their right to seek asylum under our immigration laws. The new guidance also unlawfully discriminates against domestic violence and gang claims, in conflict with a uniform statutory refugee definition that Congress intended to be non-discriminatory.
To address these and other violations, our complaint seeks, among other things: an order enjoining the government from applying Matter of A-B– and the July 11 guidance to credible fear determinations; a declaration that the A-B– decision is contrary to law; and the vacating of our plaintiffs’ expedited removal orders. We hope to ensure that our clients, as well as the many other asylum seekers in expedited removal raising claims impacted by A-B-, get their full day in immigration court.
Image: A Honduran mother holds her two-year-old as U.S. Border Patrol as agents review their papers near the U.S.-Mexico border on June 12, 2018 in McAllen, Texas. Photo by John Moore/Getty Images