Originally published by LA Times
The world, as we all know, is filled with violence. But since the end of World War II, the international community has come to recognize that people subject to certain types of violence or persecution in specific circumstances deserve special protections – in the form of asylum from countries willing to take them in.
People persecuted for their religious or political beliefs, or for their ethnicity or race, for example, are entitled to refugee status. And in recent years, women facing genital mutilation, or persistent domestic violence in patriarchal societies in which authorities are unable or unwilling to help them, have been added to the list by many countries.
And while it’s true, as Atty. Gen. Jeff Sessions wrote Monday, that the asylum statute does not provide redress for all misfortune, it should provide protections for women facing dangerous violence from their intimate partners in societies in which law enforcement cannot protect them or sides with the abuser. These women are targeted because of their gender. That’s worthy of receiving sanctuary, but Sessions on Monday stripped that protection from the U.S. immigration courts.
It was a cruel and inhumane decision that seems more based on his – and the administration’s – antipathy toward immigrants in general and Central Americans in particular than an attempt to restore sound principles of asylum and long-standing principles of immigration law, as he claimed.
Sessions also said Monday that the risk of gang violence cannot be grounds for granting asylum, but that’s a bit of a red herring. Immigration judges have granted some immigrants the ability to remain in the U.S. rather than deporting them to places where they faced specific gang-related threats, but have not held that such immigrants are part of a special class, as they did for abused women in certain societies. The fact that Sessions lumped people fearing gang violence in with the case at hand – a Salvadoran woman who fled her abusive ex-husband – makes it clear that Sessions is looking south and not primarily at legal definitions.
Sessions has the ability to overrule the immigration court decisions, but that doesn’t make it right. Congress bestowed broad powers to the attorney general’s office to implement immigration laws, but that doesn’t mean the attorney general should blow up immigration court decisions just because he doesn’t agree with them. The immigration courts have over the decades established their own history of decisions and case law interpreting the acts Congress passed. Sessions assigned this case to himself – cherry-picked it, really – for the singular purpose of overturning an immigration court precedent simply because he doesn’t like it. Policy positions, of course, should inform the crafting of laws, but to mix politics with quasi-judicial decisions is a dangerous undermining of independence that ultimately erodes public faith in the institution.
Recognizing the narrow class of domestic violence victims as a special class, as the U.S. began doing four years ago, did not open the floodgates for women fleeing dangerous circumstances. Although the 2014 decision Sessions overturned recognized the class, each applicant was still required to make a case-by-case argument that she fit those circumstances and thus deserved asylum. That’s not an easy hurdle to clear. And the applicant had to get to the U.S. first to even apply for asylum, also a difficult path – especially for women fleeing violence far from U.S. borders. And granting asylum was discretionary; it was not automatic if someone could simply check all the boxes. If an immigration judge believed the person did not deserve asylum for unrelated reasons, asylum could be denied. In fact, most asylum requests get rejected. The Transactional Records Access Clearinghouse at Syracuse University, which collects and analyzes federal immigration data, reports that 62% of requests were rejected in 2017; the year before, 56.5% were.
Sessions’ decision is cruel and unnecessary and a retreat from good policy, both in setting the threshold for when the U.S. grants sanctuary and in respecting the work of the immigration courts system. In that regard, it’s part and parcel of the Trump administration’s nativist drive to reduce immigration to the U.S. overall, from work visas to travel visas to refugees. The flow has slowed to such a trickle that resettlement agencies are closing offices.