The Ongoing Erosion of Asylum Protection for Victims of Domestic Violence.
By Pilar Ferguson
On July 11th, US Citizenship and Immigration Services (USCIS) issued a policy memorandum providing new guidance to asylum and refugee officers conducting credible fear interviews at the border to immediately reject claims based on domestic violence and gang violence. The guidance is based on Attorney General Jeff Sessions’ Matter of A-B- decision, in which he opined that domestic violence and gang violence are not viable asylum claims. This policy is likely to affect a majority of Central Americans trying to seek asylum at ports of entry along the US-Mexico border. Policy decisions like this one fail to understand the dynamics and realities of domestic violence in cultures and countries where women are not seen or treated as equal.
A credible fear interview is the first step for someone who comes to our border and asks for asylum. Asylum and refugee officers conduct the interview and determine if there is a ‘significant possibility’ that the person can prove she was persecuted on account of a protected ground (race, religion, nationality, political opinion or membership in a particular social group). If the officer finds there is a credible fear, the person is allowed to continue their asylum case in our immigration court system.
The majority of the women who have fled abusive situations and are asking for asylum at the border come from three Central American countries, El Salvador, Honduras, and Guatemala. However, there are women coming to the United States every day from all over the world who are fleeing extreme domestic violence.
Domestic violence in countries like El Salvador, Honduras, and Guatemala is treated differently than it is here. In the United States, we have a number of legal protections for women in abusive situations. In 1994, Congress passed the Violence Against Women Act (VAWA), which has been expanded over the years. States have enacted their own laws to protect against domestic violence. Even though it took until 1993 to accomplish, marital rape is now a crime in all 50 states. By no means is it completely safe for women in the United States, but at least there is a real chance for a domestic violence survivor to attain justice and protection here.
The same cannot be said for the countries from which these women are fleeing. Their governments do not extend the same kinds of protection to survivors and for that reason they should be eligible for asylum here in the United States.
The United States Department of State 2017 Human Rights Report for El Salvador found that while there are laws against domestic violence, they are poorly enforced and impunity for abusers is widespread. The 2017 Human Rights Report for Guatemala also found that while laws against domestic violence exist in the country, the police force often failed to respond to calls for assistance. The 2016 Human Rights Report for Honduras likewise found that the while there were laws against domestic violence, impunity for abusers is rampant.
In ‘traditional’ asylum cases the government of the applicant’s native country is the persecutor. However, asylum law recognizes that the persecutor is not always the government or government officials, but can be a private actor or group. In those cases, the asylum applicant has to show that their government is ‘unable or unwilling’ to protect them from that private actor or group.
This administration is claiming that the persecutors in domestic violence cases are private actors’ committing private criminal activity and inability for “effective policing” does not amount to their government being ‘unable or unwilling’ to protect them. That is simply not so. The United States own Human Rights Reports paint a very different picture. They do not describe an inability for ‘effective policing,’ they describe a widespread societal view that abuse between intimate partners is not a matter in which the police should meddle, and an inability to enforce their own laws due to those societal views and government corruption.
Domestic violence based asylum claims, and although not discussed here gang violence based asylum claims, fall into the purview of the types of cases Congress intended our asylum laws to cover. They are not always won. Not every single person fleeing domestic violence or gang violence who asks for asylum is granted asylum. Those types of cases were difficult to win before the Trump administration took office and now, after Wednesday’s memo, will be nearly impossible to win.
To bar claims based on domestic or gang violence at this first stage, the credible fear interview, will prevent a person from presenting their individual case to an immigration judge during a full asylum hearing. Allowing for a full hearing on an asylum case, gives the asylum seeker the opportunity to present evidence on how their community and country view a certain issue. In domestic violence cases, it allows an immigrant to present evidence on how their government does or does not protect against domestic violence, how society views women and why there is a culture of impunity for abusers.
There are many examples of other asylum cases where the persecutor is a private actor and the harm can be considered ‘private criminal activity’– female genital mutilation cases where the persecutor is often family members or tribal members who are forcing or attempting to force the practice on women; sexual orientation cases where the persecutor is often family or community members; forced marriage cases where the persecutor is often family members who are forcing a person into a marriage. In many of those cases, the native countries have enacted laws protecting women against FGM, protecting LGBTQ persons, or outlawing forced marriage. But, just as we see in many domestic violence claims, the laws are not enforced and the police will not get involved in matters they consider to be ‘familial’ or ‘personal’.
Attorney General Jeff Sessions has specifically attacked domestic violence and gang violence based asylum cases because he does not believe they are covered by asylum law as the persecutor is a private actor. The types of cases mentioned above could very well be next.
Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), p. 320 https://www.justice.gov/eoir/page/file/1070866/download
Pilar Ferguson is the Asylum Program Attorney at Human Rights Initiative of North Texas.