National JFON recently joined nine other faith-based groups filing an amicus brief (friend of the court) with U.S. Attorney General Jeff Sessions, warning that his actions to hinder gender asylum could also obstruct asylum seekers fleeing religious persecution. 

NJFON was ably represented in this matter by Shane Ellison, legal director for Immigrant Legal Center—our Nebraska JFON site.

Background: 

In order to seek asylum in the United States, one must first meet the definition of a refugee by having a well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or membership in a particular social group (PSG).

A PSG is a group of people who share a common characteristic that is so central to their identity that its members cannot—or should not be expected to—change it. Past recognized PSGs have included certain family groupings, clans, homosexuals, and survivors of female genital mutilation (FGM).

In recent years, the U.S. government has also recognized certain victims of domestic violence as qualifying for protection as members of a valid PSG. As a result, many affected women have been able to gain asylum protection in the U.S.

When we think of victims of persecution, we often think of the government as being the active agent of that persecution; such as in the case of the desaparecidos of Argentina, the dissidents of Castro’s Cuba, and the Rohingya and Christian minorities of Myanmar.

However, if a government is unable or unwilling to protect members of a religion, race, nationality, political ideology, or a particular social group from persecution by private or non-state actors, then these victims are also eligible to apply for asylum.

So if you are a victim of domestic violence from a country where you can get help from law enforcement; and there are no societal, religious or cultural norms that would expect or require you to remain with an abusive partner, then you would not ordinarily meet the definition of a refugee.

But if you are a woman from El Salvador, you will find the situation vastly different—unable to escape, unable to receive help from any quarter, including the police, the courts, or the community.

This was the case of a Salvadoran woman known only as A-B-. A survivor of horrific and continual violence, she fled to the United States. After a long and thorough process, she was eventually granted asylum by the Board of Immigration Appeals.

For nearly four years, it has been settled law that certain victims of domestic violence can qualify for asylum.  However, in March of this year, U.S. Attorney General Jeff Sessions decided to intervene, certifying the case of A-B- to himself for further consideration.

According to many experts, this highly unusual move by the attorney general signals a broader effort to roll back protections for victims of domestic violence, and threatens to create larger repercussions for many other categories of asylum seekers.

Jeff Sessions poses a Question:

Does being a victim of private criminal activity constitute a cognizable “particular social group” for purposes of an application for asylum?

“This isn’t so much a question,” says Shane, “as it is a calculation on the attorney general’s part to style these domestic violence survivors as mere victims of ordinary crime. But understand that these women are refugees who have been savagely beaten and raped by their domestic partners.  These abusers, in some instances, can even commit femicide with impunity, knowing they won’t be prosecuted in their country.”

And the women know it, too. They know that if they have any chance to escape, they must flee from both dangerous partners and from a society and culture that permits, and even condones, the violence perpetuated against them.

“Worldwide, for every person who dies from civil war, there are nine people killed from domestic violence,” Shane says.

He pauses, giving time for that dismal fact to sink in. “There’s a reason,” he adds, “that these cases can be framed within the context of refugee protection.”

Victims of “private criminal activity”

“In our amicus brief, we look at the larger ramifications of what could happen if victims of non-state harm lose protection,” says Shane. “A negative decision by the attorney general in A-B- wouldn’t just take away asylum from domestic violence victims, but it could also jeopardize refugees fleeing religious persecution who are often targeted around the world by mobs, terrorists, or other non-state actors.”

Of course, these ramifications extend way beyond harm to religious asylees.  Sessions’ apparent attempt to overturn existing law threatens all asylum seekers fleeing persecution from private actors.

“Any civil war,” Shane explains, “could involve non-state actors committing atrocities. There will be targeted killings based on ethnic lines, political parties, and religion.”

“ISIS,” Shane reminds us gravely, “is not a state actor. ISIS terrorists are acting contrary to the laws of both the Iraqi and Syrian governments.”

 Upholding our Ideals

In all, 10 faith-based groups joined in this challenge to the attorney general, among them the Catholic Legal Immigration Network (CLINIC), the Hebrew Immigrant Aid Society (HIAS), and Lutheran Immigration and Refugee Service.

All of us now wait for Sessions to make his decision. Will he change course, limiting the ruling to victims of domestic violence? Or will he use it to obstruct other victims of non-state persecution from seeking safety in the United States?

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For further reading:

To read the amicus brief filed by the 10 faith-based groups—including National JFON—please go HERE. 

Several other groups interested in asylum law have joined together to file separate amicus briefs, each with a slightly different take on the issues at hand—one spearheaded by the National Immigrant Justice Center, and the other by Harvard Law Immigration and Refugee Clinical Program.

And for the legal wonks out there, we recommend spending some time on Jason Dzubow’s Asylumist Blog. His own take on this case can he found here: Attorney General Sessions’ efforts to limit asylum