Memo Evaluating Sessions Position on Gender Based Asylum Claims and Impact on Particular Social Group

By Chloe Thomlinson and Kalpana Peddibhotla

1. Introduction On June 11, 2018 the Attorney General issued a disheartening decision over-ruling the Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) stating that, “generally, claims by aliens pertaining to domestic violence  perpetrated by non-governmental actors will not qualify for asylum.”[1]The Attorney General’s decision in Matter of A-B- is a leap backwards for women’s’ rights and erodes over two decades of advocacy and jurisprudence establishing legal rights for domestic violence victims.[2] This decision sends the message that the United States does not value women as equals and will not take measures to protect their basic human rights.This memo will provide a critique of the Matter of A-B- decision. It will evaluate the points in which it misstates the asylum law. Next, it will discuss how this decision is a step backwards for women’s rights, as it seeks to close the door on asylum seekers fleeing domestic violence. Lastly, this memo will analyze the possible methods in which an asylum claim based on domestic violence or gang violence could still be made, as these decisions must be made on a case by case basis, taking into consideration all factors.
2. Critique of Matter of A-B- Decision The Attorney General’s disheartening decision to eliminate asylum claims for victims of domestic violence was issued in order to further restrict immigration. In a speech given by the Attorney General on May 7, 2018, he said, “We’ve had situations in which a person comes to the United States and says they are victim of domestic violence; therefore, they are entitled to enter the United States,” he said. “Well that’s obviously false, but some judges have gone along with that.[3]About a month after that comment, the Attorney General, referred the Matter of A-B-, 27 I&N to himself, and on June 11, 2018 issued a decision which over-ruled the case of Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014), which had established that women fleeing gender based persecution based on domestic violence may claim asylum here in the United States.

1. This Decision Has Misstated Asylum Law in Regards to the Attorney General’s Interpretation of “Particular Social Group” in Matter of A-R-C-G-. 
   1. The Attorney General improperly states that the particular social group at issue in Matter of A- R-C-G-, “married women in Guatemala who are unable to leave their relationship,” is an impermissibly circular social group defined by the fact of persecution. The Attorney General claims that the inclusion of “inability to leave the relationship” makes the group circular because this particular characteristic was created by the harm forming the basis for the claim.[4]Yet, the Attorney General inaccurately applied the law, which makes this decision flawed. “Inability to leave a relationship” does not reference the persecution suffered by the members of the particular social group. Therefore this particular social group is not defined with circularity.[5]This characteristic of women who are unable to leave their abusive partners is promulgated by social and cultural norms. In stating that the particular social group of women who have an “inability to leave” because of the harm they are subjected to, the Attorney General intentionally disregards how domestic violence occurs in the first place.[6] This group is not defined by the harm feared, because there are many reasons why these women may not leave these relationships, which in turn make them a target of persecution.[7]
   2. The Attorney General’s comment generally eliminating asylum for gang violence victims is flawed, as gang violence was not considered in Matter of A-R-C-G or Matter of A-B-. In regards to particular social group, Sessions further explained that “particular” social group is a specific segment of the population. Matter of A-B-, 27 I&N Dec. at 322. Yet, Sessions stated that, in societies where virtually everyone is at risk of crime—or broad swaths of society are at risk of crime—groups defined by vulnerability to crime are not a subdivision of the society, but instead are typical of the society as a whole. Matter of A-B-, 27 I&N Dec. at 335. The Attorney General then concluded that “social groups defined by their vulnerability to private criminal activity likely lack the particularity required . . . given that broad swaths of society may be susceptible to victimization.”In this decision, the Attorney General attempts to foreclose the ability for asylum claims based on individuals fleeing gang violence, stating that their social group is defined as circular. Yet, he ignores the fact that once a person is a victim of gang violence, that factor could lead to subsequent targeting. This subsequent targeting would make it a permissible social group, because the past targeting could explain why the person was being targeted later for further harm.[8]
   3. In the Attorney General’s analysis of the nexus requirement, he improperly states, “when private actors inflict violence based on a personal relationship with a victim, then the victim’s membership in a larger group may well not be “one central reason” for the abuse. The Attorney General’s decision sought to categorize domestic violence and gender based persecution as a private matter, which is exactly what activists have fought against over the past few decades. In Matter of A-R-C-G- the Attorney General states that there was no evidence that her ex-husband was aware of Ms. A.R.C.G.’s membership in the group of “Guatemalan women unable to leave their relationship” and that he thus only attacked her because of their “preexisting personal relationship. Matter of A-B-, 27 I. & N. Dec. at 339. The Attorney General assumes that Ms. A.R.C.G.’s ex-husband was not aware of the fact that she was a married Guatemalan woman whom he controlled.[9]Despite this absurd assumption, it is legally flawed because the established principle that asylum seekers are not required to establish the exact motivation oftheir persecutors, given that “persecutors are hardly ‘likely to submit declarations explainingexactly what motivated them to act.”[10]In the Attorney General’s analysis of the nexus requirement, Sessions has decided to turn a blind eye to the fact that in certain countries the social, political, religious, or cultural environments allow for domestic violence to prevail, without the government stepping in to prevent it. The abusers are not inflicting the abuse based on the personal relationship, rather it is the environment that allows for this violence to prevail. Cultural norms in society combined with laws that allows for the mistreatment of certain groups allow can create a culture which accepts domestic violence and fails to prosecute it. The Attorney General ignores the fact that the countries where asylum seekers are fleeing from are often places where family violence is prevalent in male-dominated societies and police fail to respond to requests for assistance related to domestic violence. See Matter of A-R-C-G-, 26 I&N Dec. at 394.Even more shockingly, in footnote 10, the Attorney General refers to Matter of Pierre, 15 I&N Dec. 461, 463 (BIA 1975), where the Board held that a husband’s threats against his wife were “strictly personal,” even though he was a Haitian government official, and, thus, she did not establish persecution.The Attorney General has referred to a case from 1975 to make the point that for decade’s domestic violence has been recognized as a personal matter. This is a step backwards for women’s rights. It seems that the decision which Sessions over-ruled, Matter of A-R-C-G- had established that domestic violence was not only a personal matter, and individuals who suffered this abuse may have a viable asylum claim.
   4. The Attorney General stated asylum claims based on violence inflicted on by private actors are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address. In the introduction, the Attorney General stated that where a persecutor is a non-state actor, the asylum seeker must establish that the persecutor’s actions “can be attributed” to the government. A-B-, 27 I&N Dec. at 317. Yet, the Refugee Convention, asylum statute, or the Circuit Courts have ever created this requirement.[11] This comment attempts to heighten the standard of proof for what an asylum seeker must show in order to prove their claim based on violence inflicted by a private actor.As this is not the language of the asylum laws, and the decision does not assert a new standard[12], this language is confusing and will create a messy interpretation of what standard to apply.
2. This Decision, Which Over-ruled the precedential decision of Matter of A-R-C-G- Will Harm Domestic Violence Victims Seeking Asylum Here in the U.S. The Attorney General’s decision in Matter of A-B- combined with the DHS Guidance policy memo issued in order to provide guidance to USCIS on how to access future asylum claims show that asylum seekers will face greater obstacles when seeking entry into the United States. This decision may deter women from seeking asylum and is likely to result in border agents turning away greater numbers of women fleeing from gender based persecution.[13]The Guidance addresses the Pula factors relevant in determining whether the officer should use their discretion to grant asylum.[14] It advises officers to consider unlawful entry as a serious adverse factor. Pula, 19 I&N Dec. at 473.DHS has further instructed that USCIS personnel may find an applicant’s illegal entry, where the alien does not demonstrate good cause for the illegal entry, to weigh against a favorable exercise of discretion. [15] DHS stated,“in particular  circumvention of orderly refugee procedures” factor may take into account whether the alien entered the United States without inspection and, if not, whether the applicant had other ways to lawfully enter this country. “[16]This is problematic because applicants must physically be in the United States to apply for asylum, which requires their physical presence and entry at the U.S. border to do so. [17]Ironically, many asylum seekers are turned away at the ports of entry. In April 2018, Secretary Nielsen said, “We are metering, which means that if we don’t have the resources to let them in on a particular day, they are going to have to come back.”[18]It does not seem fair to weigh asylum seekers “illegal entry” as a serious adverse factor, when often they have no choice. For example, in June 2018, asylum seekers were being turned back at ports of entry and one man was turned back 20 times in four days.^[19] Therefore the Attorney general’s Decision in Matter of A-B- may have the impact of deterring women fleeing domestic violence from seeking asylum here in the U.S. This is because the border agents may now consider these asylum seekers “illegal entry” into the U.S. in combination with the fact that they are fleeing gender based persecution, which the Attorney General has deemed not a likely successful asylum claim. Furthermore, women who are fleeing gender based violence may not even get a chance before an immigration Judge because they likely will be turned away at their credible fear screening at the border.These individuals may now be forced to remain in abusive situations, in cultures where domestic abuse is not prosecuted, and risk their lives. This decision combined with various speeches send the message that the U.S. is no longer a possible safe haven for these women, and they have no choice but to remain in this environment where their basic human rights will continue to be violated. 
3. This Decision is a Step Backwards for Women’s’ Rights as it seeks to Disregard their basic human right of the right to life, liberty, and personal security. This decision not only over-rules precedent which established that women fleeing domestic violence can make a successful asylum claim, but it also sends the message that the United States does not value women’s basic human rights.In this decision, the Attorney General stated,“I understand that many victims of domestic violence may seek toflee from their home countries to extricate themselves from a dire situationor to give themselves the opportunity for a better life. But the “asylum statuteis not a general hardship statute.” Velasquez, 866 F.3d at 199 (Wilkinson, J.,concurring). Matter of A-B-, 27 I&N Dec. at 346.Sessions states that the asylum statute is not a general hardship statute. Yet, many individuals fleeing domestic violence and gang violence are not claiming “general hardship. Asylum seekers are claiming past persecution or a well-founded fear of future persecution based on their membership in a particular social group. Often the particular social group is the very reason that the government is not protecting these individuals. It is not that they do not have the ability to protect them, it is that society allows for the government to ignore particularly in cases of domestic violence. 
   1. How to Continue to Make Asylum Claims Based on Gender Based Persecution, particularly Domestic Violence Although this decision seems to prevent individuals from making a claim for asylum based on being a victim of domestic violence, this decision is a narrow holding, which only over-rules Matter of A-R-C-G-. The Attorney General did not decide that it is never a possibility for violence inflicted by private actors to serve as the basis for asylum based on membership in a particular social group. He stated,“While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.” Matter of A-B-, 27 I&N Dec. at 320.Therefore, claims for asylum must still be considered on a case by case basis after evaluating the individual merits of the case and the factual records.
   2. Conclusion

Therefore, the Attorney general’s decision in Matter of A-B- has overruled the precedent decision of Matter of A-R-C-G-, and how has attempted to eliminate the possibility of asylum claims for women fleeing gender based persecution. This decision is not only legally flawed, but the decision gives the impression that our society is set back decades to a time where women’s rights were not valued and domestic violence was regarded as solely a personal matter. This decision is another attempt by the administration to further restrict immigration laws, and it may harm these women’s basic human rights.