“No one leaves home unless home is the mouth of a shark.” Warsan Shire, poet
The recent changes to asylum law, both on the books and on the ground, are driving the current state of U.S. asylum policy even further away from the spirit of the 1951 Refugee Convention. On June 11, 2018, Attorney General Jeff Sessions issued a precedential decision (Matter of A-B-), overturning a prior opinion which allowed certain domestic violence survivors to receive asylum protection. The AG’s decision purports to further limit asylum claims involving harm by “private” or non-state actors.
These purported developments, had they been in place at the time of the Convention, would have disallowed protection for some of the very populations that have historically been persecuted over the course of the last century. This includes the civilian targeting of Jewish populations in Russia during pogroms of the early 20th century, the Istanbul pogroms of 1955, and the ongoing ethnic cleansing of Roma populations. Our administration has seemingly forgotten that non-state or “private” actors target, persecute and even commit genocide. The administration’s recent attempts to alter the landscape of asylum and refugee law serve to further complicate the already-difficult task of representing an asylum seeker.
What do we, as advocates, do about this? The answer is this: We must fight on. There is plenty of room to challenge Sessions’ decision, both on procedural and substantive grounds. Although the decision purports to foreclose claims such as domestic violence, femicide, and female genital mutilation, there is a real argument that much of the decision’s language is mere dicta.
It can (and should) be argued that Sessions’ holding is narrow and does not foreclose a domestic violence asylum claim, much less other non-state harm claims. But while it is important to preserve these arguments, we cannot stop there. It is now more important than ever that we build a strong record in our asylum cases, with an eye towards appellate review. And we must act quickly by submitting supporting evidence and legal briefs early in the process to combat procedural obstacles to asylum claims such as negative results in credible fear interviews and pretermitted asylum applications in immigration courts.
It is not so much Sessions’ decision in the case itself, but rather agency interpretation and implementation causing the obstacles that threaten to abridge asylum seekers’ due process rights and violate international law. Although, it doesn’t help that in at least one (unpublished) Board of Immigration Appeals decision, Sessions’ decision was interpreted as foreclosing asylum claims using the same social group formulation that he rejected in dicta.
Rising to these new challenges will demand that we vent our frustration and disenchantment into creative legal arguments. In doing so, we must be more than lawyers. We must become historians, anthropologists, and cultural translators. Our legal briefs must provide relevant socio-political background on countries of origin and deeper levels of social group analysis. We need to press our clients, lay witnesses and experts even further on the nuances of their testimony. We need our expert witnesses to answer important questions such as: Is this type and nature of harm widespread and systemic? Has your client engaged in behavior that is viewed as incongruent with or in contravention of accepted social norms? Is there a deeply rooted bias against individuals like your client? Are there laws protecting members of these vulnerable groups that are not being properly enforced?
We also need creative legal arguments framing more asylum claims in terms of political opinion and any other applicable protected grounds. Remember that Black’s Law Dictionary provides a very broad definition of the term “political” and the Immigration and Nationality Act does not define the term “political opinion.” We must demonstrate how “private harm” by a non-state actor is a societal phenomenon–manifestations of a much deeper-rooted and widespread problem. This is precisely the case with domestic violence and femicide in Central America.
As immigration lawyers, who mostly practice in administrative courts, we are often afraid of Article III courts. But now is the time to get over it. We need to take more cases to the federal courts, both district and courts of appeals to advocate for the rights of asylum seekers.
With all of this in mind, remember that you are not alone. Now more than ever, immigration advocates have been coming together to share experiences, resources, and strategies for adapting to our ever-shifting asylum law landscape. Don’t be afraid to phone a friend or stranger for advice, to bounce ideas around, or simply to borrow an ear.
Amber Gracia is an attorney at the Houston–based immigration law firm Quan Law Group. She practices immigration litigation, with a focus on removability/crimmigration and asylum issues, in Immigration Court, before the Board of Immigration Appeals, in Federal District Court, and the Federal Courts of Appeals.