Harvard University, Cambridge, Massachusetts
June 18, 2018
US Attorney General Jeff Sessions recently upended decades of US legal precedent by asserting that women fleeing domestic violence will not generally qualify for asylum.
To do so, he challenged the principle that women victims of domestic violence are members of a “particular social group.”
This phrase – “particular social group” – is critical to the work of immigration lawyers like myself. It allows us to argue that women, LGBTQ people and other vulnerable groups face specific kinds of persecution based on who they are.
If left unchallenged, Sessions’ ruling could endanger thousands of asylum-seekers, including many of my clients.
Particular Social Group
What is a ‘particular social group’?
International refugee law, which the US has incorporated into domestic law, requires signatory countries to offer protection to people who demonstrate a well-founded fear of certain kinds of severe harm in their home countries.
Their persecution must be related to race, religion, nationality, political opinion or their particular social group.
In a landmark 1985 case, Matter of Acosta, the US Board of Immigration Appeals explained that members of a “particular social group” share a “common, immutable characteristic” that they cannot, or should not be required to, change.
Sex was identified as one such characteristic.
In 1995, the U.S. Immigration and Naturalisation Service issued specific guidelines, recognising that women may be a particular social group.
Partner violence basis
Immigration lawyers have since successfully argued – including in the 2014 A-R-C-G decision – that partner violence may thus form the basis for an asylum claim.
The United Nations has reinforced this interpretation, stating that individuals who fear persecution for reasons of gender, gender identity and sexual orientation can establish eligibility for asylum based on the “particular social group” category.
Today, many countries, including Canada, recognise the unique torments that many women, gay and trans people face worldwide.
Sessions turns back the clock
When Sessions overruled A-R-C-G on June 11, 2018, he turned back the clock on the United States of America Asylum Law.
“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,” he wrote.
Domestic violence, Sessions added, is a “personal” matter.
The decision reflects concerns that recognising domestic abuse as a basis for asylum would invite battered women worldwide into the US.
But asylum law is strict.
In late 2017, the US Asylum Office granted just 23% of applications.
Upwards of 75% of asylum-seekers from El Salvador, Honduras and Guatemala were rejected by immigration courts between 2012 and 2017.
Sessions’ characterisation of domestic abuse as “personal” also ignores modern science about the power dynamics behind gender violence.
Women are most likely to be murdered by their partners, making domestic violence a well-founded fear indeed.
Sabi Ardalan is Assistant Clinical Professor at the Harvard Law School, Harvard University, Massachusetts, United States of America. The above article, which appeared under ‘The Conversation’ (USA) on June 15, 2018, has been reproduced here under ‘Creative Commons Licence.’
US Attorney General Jeff Sessions
(Picture Courtesy: CEO Magazine)