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Jason Dzubow on Political Asylum

The Attorney General's Not-as-Bad-as-We-Feared Decision on Asylum

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We knew this was coming. On March 7, 2018, Attorney General Jeff Sessions announced plans to revisit a Board of Immigration Appeals ("BIA") case called Matter of A-B-, 27 I&N Dec. 227 (BIA 2018), which granted asylum to a victim of domestic violence from El Salvador. Now, the Attorney General has reversed A-B- and issued a wide-ranging opinion that seeks to limit asylum for victims of domestic violence and other criminal activity.

Attorney General Jeff Sessions explains why asylum seekers are bad.

There is a lot to say about the AG's decision, but here I want to focus on two issues: (1) Who is affected by the decision, and (2) Why the decision may not have the broad impact that the AG seems to have intended.

Matter of A-B- most immediately impacts victims of domestic violence. Since 1999, the law related to asylum for DV victims has been evolving. Different lawyers and government agencies have worked to crack open the door for such applicants. The end result of their efforts was Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which created a convoluted path for victims of DV to obtain asylum. I think it was fairly apparent that A-R-C-G- was a house of cards, waiting for a hostile Administration to knock it down. And in Matter of A-B-, Mr. Sessions has done just that--he has overturned nearly two decades of evolving precedent, and overruled A-R-C-G-.

How, exactly, Mr. Sessions has attempted to block DV asylum seekers is important. To win asylum, an applicant must not only show that she faces harm; she must demonstrate that the harm she faces is on account of a protected ground, such as race, religion, nationality, political opinion or particular social group ("PSG"). So if a persecutor wants to kill you in order to steal your money, that is usually not a basis for asylum. But if the persecutor wants to harm you because he does not like your political opinion, or race, or religion, or PSG, that can form the basis for an asylum claim. A-R-C-G- said that “married women in Guatemala who are unable to leave their relationship” can constitute a PSG, making such people potentially eligible for asylum (assuming they met a host of other requirements).

In A-B-, the Attorney General is saying that this PSG formulation was erroneous, and so victims of DV can no longer use it as a basis for asylum. Such victims can still attempt to win asylum based on other protected grounds (maybe they are a member of an acceptable PSG, for example, or maybe the persecutor seeks to harm them due to their religion or for some other "protected" reason). But the fact is, many of these (mostly) women will no longer qualify for asylum, and will be sent home to face whatever "vile abuse" (Jeff Sessions's words) that is awaiting them.

The impact of A-B- is clearly meant to reach beyond the realm of DV asylum, but how it will be interpreted outside the immediate circumstances of the case is unclear (at least to me). For example, in the decision, Mr. Sessions writes, "Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum." Indeed, the decision makes multiple references to "gang violence," but as far as I can tell, gang violence is not an issue in the case. This is strange, since normally, courts decide issues that are before them; not abstract issues that are obliquely related to the subject of the case.

So if they are presented with an asylum claim involving "gang violence," how will Immigration Judges and Asylum Officers apply Matter of A-B-? It's difficult to know. The AG's vague pronouncements about "gang violence" are not easily translated into legal guidance for adjudicators. Of course, adjudicators who want to deny a case can find additional support for such a decision here, but those who want to grant a case are not blocked from doing so.

There's also the more general issue of "persecution based on violent conduct of a private [as opposed to government] actor," which could include harm against LGBT individuals, FGM, threats from terrorists groups, etc. The AG states that in such cases, an asylum applicant "must show more than difficulty controlling private behavior... The applicant must show that the government condoned the private actions or at least demonstrated a complete helplessness to protect the victims." In other words, says the AG, "Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it." Maybe I'm missing something here, but this is the exact same legal standard we've had since the asylum statute was enacted. As I read Matter of A-B-, I don't expect big changes for people seeking asylum based on sexual orientation or FGM, or those fleeing terrorists, even though these cases typically involve persecution by non-state actors.

In fact, though Matter of A-B- will block many DV victims from obtaining asylum, I am not sure that its effects will be broadly felt. Much of the decision is hyperbole without substance: "Generally," asylum claims based on persecution by non-state actors will fail. Generalizations like this aren't guidance for adjudicators; they are propaganda. And then there are helpful chestnuts like this:

Neither immigration judges nor the Board may avoid the rigorous analysis required in determining asylum claims, especially where victims of private violence claim persecution based on membership in a particular social group.... Furthermore, the Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.

In other words, adjudicators are supposed to follow the law. No duh.

I don't know why the AG used Matter of A-B- to make a broad statement against people fleeing violence from non-state actors (as opposed to limiting his ruling to the facts of the case). But the decision's platitudes and generalizations are not conducive to the type of legal precedent that can guide decision makers.

Perhaps Mr. Sessions hopes that his anti-asylum rhetoric and exhortations to "follow the law" will set the tone for adjudicators at the Immigration Courts and Asylum Offices. Maybe he believes that his disdain for immigrants can somehow be transmitted through the bureaucracy to the men and women deciding cases. But in my experience, IJs and Asylum Officers are not lemmings who exist to do the AG's bidding. They are adjudicators empowered to interpret the law.

After Matter of A-B-, some applicants will have a tougher time obtaining asylum; others will be unaffected. In a strange sense, this decision gives me hope. If this is the best Mr. Sessions can do, it is not enough to end asylum as we know it. Thanks to Mr. Sessions, many domestic violence victims will be returned to face harm, but our country will continue to offer protection to many others. For that, I am thankful.

Originally posted on the Asylumist:

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  1. ImmigrationLawBlogs's Avatar
    With the highest respect to Jason Dzubow, who has already, i am quite sure, forgotten more about asylum law than I will ever be able to learn (since I do not practice in the asylum field and have been involved in only a very few of these cases in my 40-year career as an immigration lawyer) as the old saying goes, I do not read the AG's decision on gang violence as a basis for asylum as being quite as harmless as Jason appears to believe.

    Sessions says point blank in that decision that being a victim of gang violence does not put someone in a "particular social group" for asylum law purposes.

    As I understand it, this means that no matter how much a given applicant may have suffered from gang violence or have reason to fear it, this entire claim is now off the table as a basis for asylum.

    Won't this have a devastating effect hundreds, or thousands, of people who are already face the the prospect of being treated like "animals" (as Trump calls MS-13 members, and by immigration all Hispanic immigrants) by Sessions' cruel policy of separating families seeking asylum at the border?

    Isn't Sessions telling them that they now have no chance be being approved for asylum, based upon his sole diktat, and that all the suffering and hardship they have gone through to come to the US and file their claims has been in vain (unless a Circuit Court overrules this heartless, cruel and, as I explain in my own comment, hypocritical decision)?

    See my own June 12 comment on this decision.

    Roger Algase
    Attorney at Law
    Updated 06-13-2018 at 05:27 AM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar

    I don't see Session's disposition of A-R-C-G the way you do. If his description of that decision is accurate, the Board members who decided it should be demoted to file clerks.

    He says:

    Later that year, the Board decided A-R-C-G-, which recognized “married women in Guatemala who are unable to leave their relationship” as a particular social group—without performing the rigorous analysis required by the Board’s precedents. 26 I&N Dec. at 389; see id. at 390–95. Instead, the Board accepted the concessions by the Department of Homeland Security (“DHS”) that the respondent suffered harm rising to the level of past persecution, that she was a member of a qualifying particular social group, and that her membership in that group was a central reason for her persecution. Id. at 395.

    I do not believe A-R-C-G- correctly applied the Board’s precedents, and I now overrule it. The opinion has caused confusion because it recognized an expansive new category of particular social groups based on private violence. Since that decision, the Board, immigration judges, and asylum officers have relied upon it as an affirmative statement of law, even though the decision assumed its conclusion and did not perform the necessary legal and factual analysis. When confronted with asylum cases based on purported membership in a particular social group, the Board, immigration judges, and asylum officers must analyze the requirements as set forth in this opinion, which restates and where appropriate, elaborates upon, the requirements set forth in M-E-V-G and W-G-R-.

    Nolan Rappaport

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