Business Immigration Insights

In a closely watched asylum appeal, Attorney General Jeff Sessions has issued a decision that will adversely affect the ability of victims of domestic and gang violence to find protection in the United States.

Matter of A-B- was originally decided, in December 2016, in favor of the asylum seeker by the Board of Immigration Appeals.  The BIA is an administrative branch of the US Department of Justice.  It accepts appeals, filed by either government attorneys or immigrants, of decisions made by civil immigration courts throughout the country.

In late 2016, the BIA overturned the 2015 denial of A-B-‘s asylum claim by a judge in Charlotte, North Carolina, where asylum was denied at a rate of 72 to 84.5 per cent between 2011 and 2016.  Finding the denial was “clearly erroneous,” the BIA said A-B- had proven she was persecuted based on membership in a “particular social group”; specifically, “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.”

In March 2018, Sessions referred the BIA’s decision to himself – a controversial practice that gives a political appointee, and the head of a law enforcement agency, absolute power to overturn the decision of an independent and neutral tribunal of administrative judges.  Sessions’s decision yesterday, which comes as a surprise to no one, vacates the BIA’s grant of asylum as “wrongly decided” and says:  “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

Calling it “an affront to the rule of law,” a group of 15 former immigration and BIA judges said Sessions’s finding erased “a 15-year process through the immigration courts and BIA” to develop nuanced and reliable legal standards on the “particular social group” basis for asylum.