The Trump administration Monday overturned asylum protections for domestic violence and gang violence victims in a ruling that could potentially prevent tens of thousands of immigrants from getting protection in the US.
Attorney General Jeff Sessions’ decision sets a high bar for victims of crime to qualify for asylum protections. Not only must the government of the home country be unable or unwilling to help the victims, but "the applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims."
The ruling is the latest instance of Sessions taking full advantage of his authority over the immigration courts — a separate court system designed by law to be under the auspices of the Justice Department. The attorney general functions as a one-person Supreme Court in the system, in addition to hiring and evaluating the lower court judges themselves.
The administration has made a priority of trying to curtail asylum claims in the U.S., despite asylum being a valid protection under U.S. law and an obligation under international law. Sessions argues most asylum claims are ultimately unsuccessful.
Gang violence is a major problem in Central America and one the Trump administration has itself highlighted with heightened rhetoric, with President Donald Trump calling MS-13 gang members "animals."
In 2016 alone, more than 60,000 individuals from the most gang- and violence-afflicted countries in Central America, El Salvador, Guatemala and Honduras, applied for asylum in some fashion, according to the Department of Homeland Security.
The majority of asylum seekers from that region are likely making a claim based on criminal violence, said Eleanor Acer, senior director of refugee protection at Human Rights First, which advocates for US leadership on human rights issues.
Advocates for immigrants and civil rights were quick to blast the decision.
"Today’s decision puts many refugees and asylum seekers fleeing horrific violence — especially women — in grave danger and violates the spirit of our asylum law which Congress wrote to protect victims of persecution, including women and children who flee their home countries in fear of their lives," said David Leopold, a former president and general counsel of the American Immigration Lawyers Association.
"Just last month, the UN Refugee Agency reported that it was seeing a ‘significant increase in the number of people fleeing violence and persecution in the North of Central America,’ with many ‘in serious peril,’" Acer said.
Issues in the case
At issue is a part of asylum law that protects members of a "particular social group" who are victims of persecution. Immigration courts had previously held that women in Central America who because of societal norms and other restraints couldn’t escape their abusive partners qualified.
But Sessions said that was no longer the case.
Sessions ruled that a 2014 Board of Immigration Appeals decision protecting such women was wrongly decided, and noted his decision would overturn any other immigration court rulings that would grant such protections to crime victims.
"Although there may be exceptional circumstances when victims of private criminal activity could meet these requirements, they must satisfy established standards when seeking asylum," Sessions wrote.
"Such applicants must establish membership in a particular and socially distinct group that exists independently of the alleged underlying harm, demonstrate that their persecutors harmed them on account of their membership in that group rather than for personal reasons, and establish that the government protection from such harm in their home country is so lacking that their persecutors’ actions can be attributed to the government," he wrote.
Speaking Monday morning an annual training conference for the nation’s hundreds of immigration judges, Sessions said his move "restores sound principles" of the law.
"Asylum was never meant to alleviate all problems, even all serious problems, that people face every day all over the world," Sessions said. "I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law."
Sessions received a warm welcome and reception from the judges present, who gave him multiple standing ovations at the beginning and end of his speech. But some leading immigration judges reacted unfavorably to the announcement.
President Emeritus of the National Association of Immigration Judges Judge Dana Leigh Marks told CNN it was "unsettling" that immigration judges are finding out about a precedential decision from Sessions at the same time as the public.
"While it’s not a surprise that a major decision is going to be announced today, it’s rather unsettling, because we feel like we’re the last to know," Marks said. "And we need time to study and digest it."
Pro-immigration advocates have criticized Sessions for taking the case and targeting protections for victims they say have already been settled as a matter of law.
Sessions also touted recent efforts he’s made to require judges to complete a certain number of cases per year, an effort that has been opposed by the immigration judges union who argue it trades due process rights for unreasonable expectations of completions that could encourage or force judges to issue more deportation orders.
He also repeatedly discussed what he considers abuse of the nation’s immigration laws, which the judges he spoke to are sworn to uphold. He referred to the 2016 election results as a bellwether for the judges.
"Let’s be clear: We have a goal. And that goal is to end the lawlessness that now exists in our immigration system," Sessions said. "The American people have spoken. They have spoken in our laws and they have spoken in our elections. They want a safe, secure border and a lawful system of immigration that actually works and serves the national interest. Thank you for what you do, let’s deliver this for the American people."
Marks and current National Immigration Judges Association President Judge A. Ashley Tabaddor criticized Sessions for touting the case completion targets in his speech, as well, with Tabaddor saying two-thirds of judges are not on track for the Department of Justice’s 700 cases per year target.
"We’re still in labor negotiations to discuss ways to achieve more numerical completions … we don’t agree that 700 is a realistically achievable number," Marks added. "It’s frustrating while we’re in the midst of these negotiations to hear such a firm assertion from the attorney general. It’s as if our concerns are not going to be taken seriously."