A Generous Standard For Protection

by Anitra Pavlico

Amidst all of the disheartening immigration news, it was refreshing to see the recent D.C. district court decision in Grace v. Whitaker. The A.C.L.U. and the Center for Gender & Refugee Studies brought the case on behalf of twelve adults and children who fled domestic violence in their home countries and were denied entry by United States border officials. Judge Emmet Sullivan reviewed former Attorney General Jeff Sessions’ extraordinary decision in Matter of A-B- last summer, which imposed heightened requirements for asylum-seekers entering the U.S. and moreover stated that domestic violence and gang violence were “generally” not grounds for asylum. Judge Sullivan found that Sessions’ decision and the subsequent Policy Memorandum that the Department of Homeland Security issued were unlawful.

Asylum law in the U.S.

Asylum law in the U.S. recognizes refugees belonging to a few specific categories: political opinion, race (encompassing ethnicity), nationality, religion, and “membership in a particular social group.” People fleeing abusive domestic situations and gang violence have been able to gain asylum in the U.S. through the last category, social group. To qualify as a refugee, someone must have a “well-founded fear of persecution” either by governmental actors, or, what is often crucial for social-group applicants, by non-state actors that the government is “unable or unwilling” to control. This language will come up a little later, as Sessions’ decision attempted to morph it into something quite a bit more restrictive.

U.S. asylum law originally derived from the United Nations Protocol Relating to the Status of Refugees (“Protocol”), to which the U.S. has been bound since 1968. When Congress passed the Refugee Act in 1980 as an amendment to the Immigration and Nationality Act, it professed that it did so to bring U.S. domestic laws in line with the Protocol: to codify “our national commitment to human rights and humanitarian concerns,” and even “to afford a generous standard for protection in cases of doubt.” The international law principle of non-refoulement, as the UN High Commissioner for Refugees wrote in 1977, is “the most essential component of refugee status and of asylum . . . protection against return to a country where a person has reason to fear persecution.” As the U.S. is a signatory to the Protocol, it is binding international law for the U.S. not to subject anyone “to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.”

The “particular social group” category has a line of cases that have fleshed out, over the decades, the bones of the U.N. language that the U.S. adopted as its refugee definition. Certain requirements have emerged as the jurisprudence has evolved. In Matter of Acosta, the Board of Immigration Appeals (BIA) held in 1985 that a “particular social group” is marked by common characteristics “that members of the group either cannot change, or should not be required to change because such characteristics are fundamental to their individual identities.” The Acosta decision also raises the possibility of the victim being persecuted by non-state actors that the government is unable or unwilling to control.

Despite decades of case law on social-group applicants, however, the former Attorney General “gutted” asylum protections with his decision in Matter of A-B-, to borrow the language of a press release by the American Immigration Lawyers Association cheering the Grace v. Whitaker decision, which found that Matter of A-B- was unlawfully decided–arbitrary, capricious, not well-reasoned.

When an alien enters the U.S. illegally, he or she may be subject to a “credible fear” interview to determine if they have a possibility of a successful asylum claim here. The credible-fear requirement was meant to be a rather low hurdle, and legislative history indicates that Congress felt there should be “no danger that an alien with a genuine asylum claim will be returned to persecution.” This spirit shaped U.S. law in conformity with the U.N. Protocol to which the U.S. is bound. In contrast with this spirit was the Matter of A-B- decision, which attempted to change the law, and argued later in Grace that it did nothing of the sort. Grace plaintiffs argued, and Judge Sullivan agreed, that the A-B- decision unlawfully precluded domestic violence and gang violence claims at the credible fear interview stage, thus subjecting refugees to expedited removal. It also found that the DHS Policy Memorandum arbitrarily required asylum-seekers to delineate their precise social group at the credible fear interview.

Social-group asylum claims

It can be tricky to prove persecution by a non-state actor in an asylum case. Generally, it is easier to prove governmental persecution than to show that the government is unable to control groups or individuals that persecute people. Nonetheless, it has long been possible to gain asylum when you are persecuted by a non-state actor and your government can’t help you. Sessions in Matter of A-B- sought to either change the law–or disingenuously to state the existing law incorrectly, I am not sure which–to one in which you may win asylum if your government either “condones” or is “completely helpless” to control the non-state actors who are persecuting you. As Sullivan wrote in the Grace decision, “That is simply not the law.” Which is good, because how difficult would it be to prove that your government condoned gang violence or domestic violence? Regardless of politicians’ private views, that would be akin to political suicide, almost like saying neo-Nazi demonstrators were fine people. As for “complete helplessness,” this strikes me as having to prove a negative: that the government made absolutely zero effort to stop the abusive acts, or else that it was completely impotent to do so. Even a feeble speech could be seen as making a modicum of effort. It is clear that this is a higher bar than having to prove the government is “unable or unwilling” to control rogue elements. For these and other reasons, Judge Sullivan found A-B- to be an unlawful change to existing asylum law.

The Grace decision called the government out for its argument that A-B- was not subject to judicial review because it was not making new policy, but was merely adjudicating a dispute between two parties. Judge Sullivan was not buying it: he found that Matter of A-B- on the contrary was a “sweeping opinion” articulating a “general rule that claims by aliens pertaining to either domestic violence, like the claim in Matter of A-B-, or gang violence, a hypothetical scenario not at issue in Matter of A-B-, would likely not satisfy the credible fear determination standard” (my emphasis). Why opine on issues that are nonexistent in that supposedly limited dispute, unless you are making new policy?

Even without newly heightened requirements, the “particular social group” refugee category can be challenging. It is not self-evident as race or religion might be, and it involves defining the social group to which an asylum-seeker belongs. For victims of domestic violence, the social group has been framed as “women unable to leave their relationships” or “women who are treated as property”; many activists feel the group should simply be defined as “women.”

The BIA in its 2006 precedent Matter of C-A- required social groups to satisfy particularity and social distinction requirements. Particularity means there must be clear benchmarks for who is and who is not a member of the group, and social distinction means members of your group are recognizable to society as a whole as belonging to that group. As if that were not enough, an additional element of the social-group law is that the definition may not be circular: your group may not be defined by the harm the persecutors subject you to. As former immigration judge Jeffrey Chase explains, “The definition [of the group] should therefore generally not include the actual harm feared, because a person is not targeted for an honor killing because they are targeted for an honor killing.” People fleeing gang violence cannot say they are members of a social group of people fleeing gang violence or people opposed to gangs.

Advocating for asylum clients in a post-A-B- world

Although Grace v. Whitaker is a positive step, and is binding on asylum officers, it is not binding on any immigration court and merely has persuasive authority. If the plaintiffs win on appeal, then the decision would be binding only in the D.C. Circuit. Chase notes that guidance from the BIA on domestic violence claims post-Matter of A-B- would be extremely useful, but that guidance is unlikely to be forthcoming. One can only assume there are political risks to tackling these cases.

How are immigration lawyers supposed to proceed in this murky state of affairs? As Deborah Anker and Palmer Lawrence write in their 2014 article, “‘Third Generation’ Gangs, Warfare in Central America, and Refugee Law’s Political Opinion Ground,” “Refugee protection is not the exclusive domain of the elite.” Atle Grahl-Madsen, the original commentator on the Refugee Convention, has said that refugee protection is “designed to suit the situation of common [people], not only that of philosophers … The instinctive or spontaneous reaction to usurpation or oppression is [as] equally valid” as the “educated, cultivated, reflected opinion.” This is how refugee protections were intended, but the current anti-immigrant climate, which has reached a point of inhumanity, indeed requires creativity and esoteric arguments.

As for domestic violence victims, some immigration judges have recently accepted broad social-group definitions of “women in Mexico” or “women in Honduras” as valid even under Matter of A-B-. [1] Sessions’ decision in A-B- invalidated earlier, narrower versions of domestic violence social-group definitions as not defined in terms other than the persecution that its members suffer. The group must also be distinct enough to be cognizable by society at large. Domestic violence victims, then, after fleeing violence and making a dangerous journey to the U.S., should be prepared to present not just their personal narratives but also background evidence to demonstrate the particularity, cognizability, and immutable characteristics of the group of people in similar situations in their home countries. This is not something a typical asylum seeker would be able to eke out without an attorney, despite having a well-founded fear of persecution as required by asylum law. Broadening the group to encompass all women in a particular country is legally supportable, as it is literally dangerous simply to be a woman in certain countries when police do not respond to domestic violence calls. It also requires less maneuvering by counsel, as it is easier to prove that “women” as a group are cognizable as such and are not defined by the harm they suffered.

For gang violence victims, it is even more challenging to formulate a social-group definition. Judge Chase was kind enough to point me to Anker’s and Lawrence’s article, which proposed treating gangs as a quasi-political body, with its victims therefore able to seek asylum on the grounds of imputed political opinion. This is great lawyering, but it also represents just the kind of academic exercise that refugee law was not supposed to require.

Asylum-seekers desperately need counsel. I attended a seminar recently in which NGO representatives pleaded with attorneys to consider taking an asylum case pro bono. Unlike criminal defendants, asylum-seekers are not guaranteed a right to counsel, and yet the stakes are often life-or-death. There are many more applicants than there are attorneys to represent them. Taking a pro bono asylum case these days is admittedly a terrifying proposition. The political climate is hostile and the state of jurisprudence is muddled after Matter of A-B-. If you lose, your client could be deported, tortured, and killed. High stakes for a volunteer gig. Timely war stories from other attorneys on the front lines are critical–and articles such as Anker’s and Lawrence’s, far from being purely academic, can save a client’s life.



[1] Again see Judge Chase’s blog and also the blog of former immigration judge Paul Schmidt.