Douglas Licor and Lisa Jaycox, writing at the RAND Blog, provide some useful context on some of the asylum claims being filed at our southern border:
After Attorney General Jeff Sessions rescinded asylum protections earlier this month for victims of domestic violence, many in the immigrant advocacy community essentially observed that he had turned the clock back to the 1950s.
Sessions did so by reversing a 2014 decision by the Department of Justice that granted asylum to a Guatemalan woman based on the severe domestic violence she suffered in her home country. She had described how her husband had beaten her weekly, burned her with paint thinner and raped her. Despite repeated pleas for help, the Guatemalan police told her they would not interfere in a marriage. After determining she had been persecuted, and had been unable to escape from her abuser, an immigration review board (PDF) ruled she was deserving of protection in the U.S.
I think that goes some way to explaining why the number of families, presumably women and children, suddenly exploded after 2014. The 1967 international accord on refugees defines them this way:
A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
If we are to extend that to abused women, a highly sympathetic group, it should be by legislation not ukases by the Attorney General. Outcomes are not the only important thing. Processes are important, too, and what can be decreed by an Attorney General may be reversed by another.
Legislation is near to impossible to accomplish these days.
As to the abused woman, she should speak to her sisters, brothers, cousins, and other relatives to reach a bloody and final understanding with her husband, it’s the Indian way.
They may agree with her husband.
The procedural background is that in 1999, the Board of Immigration Appeals ruled for the first time that a victim of domestic violence could be part of “a particular social group,” so as to qualify for amnesty under the statue. Attorney General Janet Reno vacated the decision in order for rulemaking to provide guidance on these issues, but no final rule ever issued and in 2009 the particular asylum claim was resolved off the record. Despite the decision being vacated, its reasoning appears to have been adopted in subsequent decisions.
In 2014, the Board recognized “married women in Guatemala who are unable to leave their relationship†as a particular social group eligible for asylum. In subsequent decisions, the Board relied on its 2014 opinion to require asylum for most Central American domestic violence victims. However, in one of the cases in which the Board rejected the domestic violence claim, the 4th Circuit Court of Appeals subsequently ruled that domestic violence victims are not a particular social group entitled to asylum. There appear to be a few U.S. Court of Appeals opinions in 2016-2017 that are questioning the underpinnings of the Board’s 2014 opinion, including those in which Obama’s A.G. would have necessarily been involved.
What Sessions has done was to pick one of the categorical amnesty cases lying around, refer the matter to his office, in order to overrule the 2014 Board opinion. This action can be appealed to the U.S. Court of Appeals, but the A.G.’s interpretation of a statute is entitled to a lot of deference and it appears that some of the Circuits might already agree with him.
The point is that extending “particular social group” to include women is obviously stretching the law. That’s neither good jurisprudence nor good governing. It may be an act of virtue but the greater obligation of government officials is to the law and to good governance.
What they should have done is introduced the reform as a law along with the funding to implement it. Rather than doing that they followed their hearts and created a new right by edict without the means to administer it.
“They may agree with her husband”
Is that not justice?
I’m not sure I had a point, except that a few things in the original piece didn’t make sense. I think the points I would make our:
1. The Board rulings appear to have encouraged at least some female migration, and in the background of many of the referenced cases there are unresolved credibility issues. They are not resolved because the legal issue of whether the allegations, if true, met the statutory requirements was taking precedence. People hear things, but don’t understand the exact standard.
2. The notion that domestic violence meets the terms of the statute has not been decided, but at the very least the language of the statute is probably not so clear that it wouldn’t ultimately be up to the A.G. Congress gave the executive a lot of discretion in this area and the Courts do the same.
3. In both situations where a Democratic administration gave the domestic violence theory some legs, there followed a reversal of some sort by that administration. The principle seems kind, the implications presumably give pause.
4. While domestic violence claims received support in Central America, they did not in Africa. I speculate that the high number of asylum claims in Africa that meet the pre-1999 analysis are crowding out new theories. Since Africa and Latin America have separate refugee caps, the system might be evaluating claims relative to other claims in the same lane.