Further distancing the US immigration system from human rights, Sessions decides domestic and gang violence are not a basis for asylum


Written by Michelle Cardona Vinasco, University of Minnesota Law School

Photo by Jeff Swensen
Photo by Jeff Swensen

The time period spent waiting for a determination by US Citizenship and Immigration Services (USCIS) after recounting your personal experience of trauma, fear, and abuse just became even more worrisome after US Attorney General Sessions stated that domestic abuse is not a basis for obtaining asylum in the US. As the decision comes through, it will have a ripple effect not only on all the people who will seek asylum in the future, but also on those whose applications are currently pending and may now be denied. In 2014 the Board of Immigration Appeals established the precedent that people seeking asylum to escape domestic violence were eligible for asylum, but with Sessions at the head of the Justice Department, under which is the US immigration court system, he exercised his authority to overturn this. In this act Sessions not only decided that domestic violence was not a basis for asylum but made it difficult, if not impossible, for victims fleeing gang violence to obtain asylum. This post will focus on the decision regarding asylum claims based on domestic violence, and predominately by female victims, though men and non-binary persons are also affected by this violence and, therefore, by Sessions' decision.

While some countries have expanded their criteria for what can be the basis of an asylum claim, such as in Costa Rica where asylum extends to gender in addition to race, religion, nationality, membership of a particular social group or political opinion, Sessions's decision restricts the ability of victims of domestic violence, often a gendered crime, to seek asylum in the US. This decision continues to distance the US from other Western states since the US is one of two, with Palau being the second, to have signed but not ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). CEDAW's importance is in eliminating discrimination against women, but of particular relevance to the issue at hand is General Recommendation No. 35 which recognizes and defines gender based violence as violence that is directed at women or that disproportionately affects women (CEDAW General Recommendation No. 35 para. 1). The World Health Organization estimates that a little over 1/3 (35%) of women worldwide experience physical/sexual violence by an intimate partner and these types of crimes by a husband to a wife are not criminally prosecuted in many countries such as Kenya and Egypt, which do not have legislation outlawing this violence, and other countries such as El Salvador, Peru, and many other countries which do have legislation, but do not criminally prosecute their violations or fail to do so adequately. Sessions's decision is based on a restriction of the "particular social group" convention ground which in 2014 was properly expanded to include 'married women in X country who are unable to leave their relationship', which is often as a result of a discriminatory / ambivalent attitude toward women by the state, police, and the general population. In the cases for asylum based on domestic violence the countries where victims are fleeing from often do not take the issue seriously or believe that the police has any business intervening in the affairs of a husband and wife and therefore the woman is left with little options in escaping the abuse. Sessions's determination is not only cruel, but it appears a violation of women's and human rights.

As a result of this decision, those fleeing domestic violence will be unable to seek asylum in the US and have to spend more time and money on travel to get to a country where their persecution in the form of domestic abuse will be recognized, a burden some may not be able to meet and may therefore be forced to remain in dangerous, potentially deadly situations of abuse. Situations of domestic abuse are grave and have profound consequences, for example, in the US the Center for Disease Control and Prevention (CDC) found that more than half of all female homicides were connected to intimate partner violence, (CDC July 21, 207 "Racial and Ethnic Differences in Homicide of Adult Women and the Role of Intimate Partner Violence"). In other countries this number is higher such as in El Salvador which has one of the highest femicide rates globally, and many of these murders are committed by intimate partners (Small Arms Survey "Femicide: A Global Problem"). The decision to close off granting asylum in the US for claims based on domestic violence could lead to more women who are unable to leave their abusive relationships, because of a government and police force that is unwilling to intervene, and potentially as victims of femicide.

Sessions claims that the US asylum system is being abused. That belief blatantly ignores the heavy burden of proof for asylum applicants that they not only have a well-founded fear, but that their country is unwilling or unable to intervene, that they could not resettle internally within their country of origin, and that their fear is based on one of the five persecution grounds recognized in the US. Sessions seems to believe that granting asylum to someone who has faced persecution in the form of domestic abuse as a result of one of the five convention grounds and that their country of origin is unwilling or unable to intervene with is an abuse of the system, when in actuality it is the system functioning properly. The UNHCR estimated that at the end of 2017 there were 250,000 pending asylum cases from North of Central America (NCA) globally, which is only expected to have increased in 2018. Of these 250,000, a large amount is likely going to be directly influenced by Sessions's restrictions on asylum, the effects of which will be devastating and seen for years to come. This decision is entirely contrary to case law developed by immigration courts and the Board of Immigration Appeals as well as to international refugee law, and definitively makes the US take one step further away from the protection of human rights and the rule of law by disregarding years of precedent.