Commentary Law and Policy

Sessions’ Decision Will Move Asylum Law Decades Backward

Hannah Harris Green

Sessions’ decision undoes years of advancements in women’s rights. ”He doesn't make short shrift of it, he ignores it. He disappears it,” said one expert.

On Monday, Attorney General Jeff Sessions reversed a decision granting a woman asylum from domestic violence in her home country of El Salvador. As Rewire.News’ Tina Vasquez reported, that decision means that any woman seeking refuge in the United States from domestic violence could be turned away.

In his ruling, Sessions wrote the asylum seeker did not deserve protection because she was not a “prototypical refugee.” His suggestion that a “prototypical refugee”—against whom all other asylum seekers should be judged—even exists implies that the type of person who needs asylum is singular and static. But in fact, international and domestic asylum law has evolved over decades to reflect changes in global society.

The UN definition of a refugee, adapted into U.S. law in 1980, is someone who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” These terms are vague, and legal experts believe that this was intentional, allowing for the law to be interpreted to reflect the needs of the current moment. When the United States adopted this standard, spousal rape exemptions still existed in many states and same-sex relationships were not legal. Since the country began updating its domestic laws, immigration courts have also seen women who face gender-based violence and LGBTQ people fighting for their right to asylum here often successfully changing the reality of what a refugee can look like. (While the word “refugee” is often used to refer to anyone seeking asylum, in this piece and according to international law it refers to those qualifying for legal refugee status.)

Domestic violence is complex compared to other types of persecution because of the intimate relationships that can exist between the victim and the perpetrator, and because it is so often hidden. In the fight to end this violence, there are those who would prefer that it remain hidden and those who want to bring it to light. Sessions’ ruling suggests the attorney general would prefer it remain hidden.

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In his decision, Sessions refers to a case from 2008, before the 2014 Obama administration decision that allowed domestic violence victims asylum. According to the 2008 finding, in order to qualify as “persecuted,” a group must be “recognized, in the society in question, as a discrete class of persons.” But if society at large refuses to see domestic violence as an issue of public concern, how can a survivor of such violence fall under this category? Social conditioning and stigma make it difficult for women to escape these situations, more difficult still to speak about them publicly and seek justice. Sessions is using this type of stigma as a justification to even further hide domestic violence and get rid of asylum as a path of recourse for its survivors.

The women who have sought asylum from gender violence, on the other hand, are among those bringing the issue to light—taking their deeply personal tragedies to an international stage. In 1987, Olimpia Lazo-Majano was granted asylum after fleeing rape, domestic abuse, and enslavement at the hands of a sergeant in the Salvadoran army. In his opinion favoring Lazo-Majano, Judge John T. Noonan of the U.S. Court of Appeals for the Ninth Circuit argued that her choice to leave the relationship was itself an act of political resistance—one that put her in a persecuted group. Other judges on the Ninth Circuit panel resisted this decision: “Quite simply, the majority has outdone Lewis Carroll [author of Alice in Wonderland] … in finding that male domination in such a personal relationship constitutes political persecution.” Sessions later echoed this logic in his own decision.

Professor Deborah Anker, founder and director of the Harvard Immigration and Refugee Clinic, says that Noonan’s decision inspired her career. In the ’90s, working with the Harvard Immigration and Refugee Clinical Program, Anker helped craft a set of guidelines for women’s asylum claims that has been used in many court decisions, which are technically still in effect today. Much of what Sessions wrote in his decision directly contradicts those guidelines, which state:

The fact that violence against women, including domestic violence, is widespread does not detract from the claim of an individual woman. The relevant issue is whether the woman applying for asylum is being subjected to or reasonably fears being subjected to the violence with no recourse to state protection.

Whereas in his decision, Sessions writes that, “The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

According to Anker, who spoke with me on the phone, Sessions’ decision undoes years of advancements in women’s rights. ”He doesn’t make short shrift of it, he ignores it. He disappears it,” she said, adding that the attorney general wants to “turn back the clock” to a time when domestic violence was considered a “private” matter, outside the law.

The gender guidelines she helped create, and the jurisprudence that has recognized domestic violence as a basis for asylum since, have turned our immigration system into one where there is more than one kind of “prototypical refugee,” says Anker. “If only what happens to men, if only the kind of violence that typically happens to men is prototypical and the kind of violence that typically happens to women is not prototypical, then you have a gender-biased interpretation of persecution.”

And we already know where this leads. Laura S, an undocumented Mexican immigrant, was found incinerated inside her mother’s car barely a week after being deported, despite her protests that her ex, who was living in Reynosa, Mexico, would kill her—he had been sending her death threats. She warned the Border Patrol agent escorting her across the bridge from Texas to Reynosa that her death would be on his conscious. Unless the United States recognizes that defiance in the face of persecution can look like a woman fleeing from domestic abuse, more such deaths will be on our watch.

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