A Cruel, Fatal Decision
On Monday, Attorney General Jeff Sessions issued a decision in a pending deportation case that will have devastating consequences for people seeking asylum protections in our country. Mr. Sessions ruled that our immigration system should generally deny claims of asylum “pertaining to domestic violence or gang violence perpetrated by non-governmental actors.” In doing so, he overruled an earlier decision from the Obama Administration that had clarified that some asylum claims based on domestic violence could qualify for protection.
This decision is legally and morally wrong. While we are confident that federal courts will eventually reject Mr. Sessions’ narrow reading of asylum protections, we are deeply concerned about the potentially fatal consequences of this decision as people fleeing violence are forcibly returned to those frightening situations.
A number of people have asked us questions about this decision, so we wanted to provide answers to some of those questions.
Could this decision impact the asylum seekers currently detained at the Federal Detention Center in SeaTac, including parents who have been separated from their children?
Yes. There are over 200 asylum seekers currently detained at the Federal Detention Center in SeaTac. Based on the dozens of preliminary screenings that NWIRP staff and volunteers have conducted so far, we anticipate that a large number of them could be negatively impacted by this ruling.
There are over 170 women seeking asylum in this group and we have seen a high prevalence of claims for protection based on severe domestic abuse by husbands and partners. We have also seen claims based on actual or threatened sexual violence by gang members. Attorney General Sessions would reject such claims because they have been committed by “private” actors. However, our asylum laws have long granted protection to people persecuted by non-governmental individuals or groups when the government was unable or unwilling to protect the asylum seeker.
Our concern is that asylum officers and immigration judges will begin to follow the Sessions ruling and reject the claims made by the people detained at SeaTac and the many other places around the country where asylum seekers are being held. This could make reunifying asylum-seeking parents who are currently separated from their children even more difficult. Nonetheless, NWIRP staff and volunteers will continue to mobilize and work hard to protect the rights of asylum seekers. We are grateful for your support in allowing us to do so.
How can Jeff Sessions issue a ruling when he is not a judge?
Our immigration court system is set up within the Department of Justice (DOJ), which means immigration judges answer to the Attorney General – Jeff Sessions. If a person seeking asylum is denied by an immigration judge, they can appeal to the Board of Immigration Appeals (BIA). The BIA also answers to the Attorney General. Federal regulations allow the Attorney General to “certify” cases that the BIA has decided and review their rulings. This is what Jeff Sessions did here: he found one case where the BIA had granted asylum to a domestic violence survivor, and overruled that decision, thus ending the precedent of allowing domestic violence survivors asylum in the United States.
Could a federal court overturn this decision?
Yes. If an asylum seeker loses their case at the BIA or Attorney General level, they can appeal that decision to the federal court of appeals that covers the area where they reside or are being detained. In Washington State, that would be the U.S. Court of Appeals for the Ninth Circuit Court. These circuit courts have the power to overturn the decisions made by the Attorney General. In fact, the Ninth Circuit has already set precedent that essentially rejects Attorney General Sessions’ stance.
If the federal courts may well reject this ruling, why is it such a problem?
While we believe that federal court precedent supports asylum claims based on domestic violence, we anticipate that the Department of Homeland Security (DHS) will argue that those precedents are not binding. And we expect that some immigration judges and asylum officers will follow Sessions’ decision and deny asylum claims. This will force asylum seekers to pursue appeals that could take years and these individuals may be held in immigration detention during this entire process. It is likely that many asylum applicants will give up on their cases rather than endure years of detention. Even more grimly, it is possible some cases will not make it to the immigration judges at all, if officers deny that they have a credible fear in their initial interview. In this case they may not even be able to pursue review in the federal courts. And in any of these scenarios, it will take much more effort now for asylum seekers to vindicate their rights under this decision. Certainly for the large number of asylum seekers who are forced to represent themselves in immigration court, this will make it virtually impossible to prevail on their claims. This is wrong.
Does this decision affect other forms of protection for survivors of domestic violence, like U visas or VAWA protections?
No. The Sessions ruling only dealt with claims for asylum. Other forms of protection for survivors of domestic violence, such as the U visa (a visa set aside for victims of crime here in the United States who assist law enforcement in the investigation or prosecution of those crimes) or VAWA self-petitions (which allows for immigrant survivors of abuse by a spouse or parent to petition independent of their abusive spouse or parent for legal status), are governed by another part of immigration law and will not be affected by this ruling.
If someone has a pending asylum claim or is thinking of applying for asylum, what should they do after this ruling?
If the person is already working with an immigration attorney or accredited representative, they should discuss with their attorney/representative whether and how this decision might impact their case. If the person is not working with an attorney or accredited representative, we encourage them to seek legal advice as soon as possible. If the person cannot afford private representation and they reside in Washington State, they may contact NWIRP.