The Justice Department Overturns Policy That Limited Asylum For Survivors Of Violence

Jun 16, 2021
Originally published on June 16, 2021 8:03 pm

Updated June 16, 2021 at 6:51 PM ET

Survivors of domestic and gang violence have better odds of getting asylum in the U.S. as the Justice Department reverses controversial rulings from the Trump administration.

In a pair of decisions announced Wednesday, Attorney General Merrick Garland is vacating several controversial legal rulings issued by his predecessors — in effect, restoring the possibility of asylum protections for women fleeing from domestic violence in other countries, and families targeted by violent gangs.

"These decisions involve important questions about the meaning of our Nation's asylum laws, which reflect America's commitment to providing refuge to some of the world's most vulnerable people," Associate Attorney General Vanita Gupta wrote in a memo explaining the decisions to the country's immigration judges.

But Wednesday's decisions do not necessarily resolve those complex questions. President Biden signed an executive order in February instructing both the Justice and Homeland Security departments to craft new rules concerning who qualifies for asylum.

That process, however, is expected to take months. Immigrant advocates warned that abuse survivors remained at risk of being deported because the Trump-era rulings were still on the books, and they urged the attorney general to take swift action in the meantime.

"The attorney general's action today will restore fairness to the asylum process," said Blaine Bookey, a lawyer at the Center for Gender and Refugee Studies at the University of California, Hastings College of the Law.

"It will save lives. It will ensure that women who are seeking asylum from domestic violence and other forms of gender-based persecution will be able to have their claims fairly considered," Bookey said in an interview.

The cases at issue — known as Matter of A.B. and Matter of L.E.A. — were both decided by attorneys general during the Trump administration. Under these decisions, the rules around who qualifies for asylum have been largely returned to where they were before former President Donald Trump took office.

Trump frequently referred to asylum as a "scam," and his administration took steps to limit asylum protections for migrants arriving at the southern border.

"The asylum system is being abused to the detriment of the rule of law," then-Attorney General Jeff Sessions said in a 2018 speech, arguing there are some social ills the U.S. just can't fix.

"Asylum was never meant to alleviate all problems — even all serious problems — that people face every day all over the world," Sessions said.

The legal argument over who should qualify for asylum hinges on the meaning of three words: "particular social group."

Asylum-seekers must show that they face a well-founded fear of persecution based on at least one of five protected grounds: race, religion, nationality, political opinion or membership in particular social group. But the precise meaning of that last category has been fiercely debated.

Sessions decided in 2018 that survivors of domestic and gang violence generally do not qualify as a "particular social group." But immigrant advocates say that interpretation took U.S. law backwards. They argue many women are still suffering persecution in countries where the police won't protect them from violent partners, and that they should have a chance to make their asylum claims under U.S. laws.

The woman at the center of the debate says she was gratified by the attorney general's decisions. Known in court papers only as Ms. A.B., she says she had no choice but to leave El Salvador and seek protection in the United States.

For a while, it seemed like she had won her asylum case — until Sessions intervened, using her case to set a precedent that implemented new restrictions.

"I feel content and happy that my case can help other women who are going through the same thing that I am," she said in Spanish through an interpreter.

Ms. A.B.'s asylum case remains unresolved. But her attorneys say they're confident that she will ultimately receive a grant of asylum and can finally apply to bring her children to join her in the United States.

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MARY LOUISE KELLY, HOST:

Survivors of domestic and gang violence have better odds of getting asylum in the U.S. after a move today from the Biden administration. The Justice Department says it's vacating several controversial decisions from the Trump administration that sharply limited who is eligible for asylum. NPR's Joel Rose has been covering this issue for several years. He's with us now.

Hey, Joel.

JOEL ROSE, BYLINE: Hey, Mary Louise.

KELLY: All right, fill in a little bit more detail about what exactly the Justice Department announced today.

ROSE: Sure. Attorney General Merrick Garland is vacating several rulings issued by his predecessors that made it all but impossible for migrants to get asylum protections in the U.S. if their claims were based on being victims - or survivors of domestic violence or gang violence. President Biden had already signed an executive order telling his administration to craft new asylum regulations to replace those decisions, but those Trump-era rules were still on the books, and immigrant advocates said survivors of domestic violence in particular were in danger of being deported to countries where they could face further abuse and where authorities won't help them. And those advocates urge Attorney General Garland to vacate these rulings, and today, that is exactly what he did.

KELLY: And did they give an explanation? Did the Justice Department say why exactly it's taken this step?

ROSE: Associate Attorney General Vanita Gupta wrote a memo to immigration judges explaining these decisions to the people who will, you know, have to enact them. And she said these decisions reflect America's commitment to providing refuge to some of the world's most vulnerable people and that they concern, quote, "important questions about the meaning of our nation's asylum laws." They don't necessarily answer all of those questions, though. The administration will have to grapple with these complex issues in a formal rulemaking process that involves the Department of Justice and the Department of Homeland Security, and that is likely to take months. But for now, the rules around who qualifies for asylum are basically returned back to where they were before President Trump took office.

KELLY: So walk us through why President Trump's attorneys general thought this was a good idea, why they tried to limit who qualifies for asylum?

ROSE: Well, they argued that the rules had become too expansive, that the asylum system was being flooded with vague or downright fraudulent claims. Trump's first attorney general, Jeff Sessions, said asylum was never intended to alleviate all of the world's problems, even serious problems. And the backlog in immigration courts is now more than 1.3 million cases, so it can take years before asylum cases are decided. And hard-liners believe that migrants are knowingly abusing that system to get into the U.S. while their cases are adjudicated, and Trump himself often referred to asylum as a, quote, "scam." But immigrant advocates dispute that. They say survivors of domestic violence and gang violence do have legitimate claims and that they deserve a chance to argue that they qualify for asylum under U.S. laws.

KELLY: Just to take this from the high legal level down to the personal - you have talked several times to the woman whose immigration case is at the center of this whole debate. Have you spoken to her? Do you know what her reaction to this is?

ROSE: Yeah, that's right, she's known in court papers only as Ms. A.B. She fled domestic abuse in El Salvador and applied for asylum in the U.S. And it seemed like she had won her immigration case until Attorney General Sessions intervened three years ago and used her case as a precedent to implement these new restrictions. I interviewed her back then, and I talked to her again today on the phone.

A B: (Through interpreter) I feel content and happy that my case can help other women who are going through the same thing that I am. I have a lot of hope and a lot of faith.

ROSE: Her own case, I should say, is not decided yet, but her lawyers are confident that she will eventually receive a grant of asylum and finally be able to apply to bring her children to join her in the U.S.

KELLY: Thank you, Joel.

ROSE: You're welcome.

KELLY: NPR's Joel Rose. Transcript provided by NPR, Copyright NPR.