IMMIGRATION
Sessions’ New Asylum Posture & LGBTQ Refugees In hardline AG opinion, claims of domestic and gang violence back home challenged BY ARTHUR S. LEONARD
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ttorney General Jeff Sessions has issued an opinion toughening the standards for granting asylum to persons seeking to live in the US based on the claim they fled their home country because of persecution. The focus of Sessions’ June 11 opinion was cases where women seek asylum based on past abuse by their husbands or domestic partners — and such circumstances received most of the media attention — but, depending on how broadly his opinion is interpreted, it could potentially pose barriers to LGBTQ people, as well, particularly minors, fleeing actual or feared violence at the hands of their families and neighbors. Sessions’ decision was presented as part of President Donald Trump’s pledge to his political base that he would reduce immigration and sharply limit the number of people who can gain admission to live here based on refugee status. The statutes governing asylum claims give the attorney general (AG) significant authority to establish the legal interpretations and precedents applied by Immigration Judges and the Board of Immigration Appeals. IJ’s and the BIA fall under the Department of Justice, rather than within the independent Judicial Branch of the government, and Sessions’ opinion is binding on them. The federal courts within the Judicial Branch have a very limited role in reviewing refugee decisions — to correct clear legal errors. They do not have authority to reject the factual and legal conclusions of the IJ’s and the BIA unless there is clear error, not just a difference of opinion about what the evidence shows. Sessions’ opinion emphasized that the BIA itself is also very limited in reviewing IJ decisions, and must defer heavily to IJ rulings on the credibility of witnesses and findings of fact. The ultimate decision to grant asylum in any particular case, however, is up to the discretion GayCityNews.nyc | June 21 – July 4, 2018
WHITEHOUSE.GOV
Attorney General Jeff Sessions with President Donald Trump at the White House last year on the day he was sworn in.
of the attorney general, who is not bound by the BIA’s decisions. Sessions’ action in the case before him not only overturned a BIA decision to grant a petitioner’s asylum bid, but also overruled a 2014 BIA decision that had been treated as precedent on the question of whether women who are victims of domestic violence are entitled to asylum in the US. The asylum statute explicitly protects people who have suffered persecution in their home country on account of their race, religion, nationality, political opinion, or membership in a “particular social group.” The statute does not define “particular social group,” and its meaning has been developed by the BIA and the courts over decades. The AG has authority to designate decisions by the BIA as a precedent, and past attorneys general have done so with cases that defined particular social groups entitled to protection. During the Clinton administration, Attorney General Janet Reno made an important advance by designating a 1990 BIA opinion that found that gay people could constitute a “particular social group” as a precedent. During the Obama administration, the Departments of Justice and Homeland Security issued guidance documents broadening the recognition of the protected status for LGBTQ people, in line with policy statements coming
from the White House. Since then, there have been many refugee cases in which IJ’s, the BIA, and federal appeals courts have considered LGBTQ applicants to be members of a “particular social group.” Indeed, in recent years, the Ninth Court of Appeals has issued a series of decisions finding that transgender people in Mexico are a particular social group that is highly vulnerable to persecution, to the extent of being presumptively entitled to protection under the international Convention against Torture. The court has taken particular note of the history of Mexican police officers and soldiers sexually assaulting and severely beating transgender women. These Ninth Circuit opinions have routinely reversed rulings by the BIA and criticized both the Board and Immigration Judges for inappropriately relying on civil rights advances by the gay community in Mexico that have not necessarily benefited transgender people there, and for failing to consider sexual assaults by police and military personnel to be government actions. In his June 11 opinion, Sessions stated that an applicant for asylum has the burden to show “membership in a particular group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society
in question; that her membership in that group is a central reason for her persecution; and that the alleged harm is inflicted by the government of her home country or by person that the government in unwilling or unable to control.” He also wrote, “When the applicant is the victim of private criminal activity, the analysis must also consider whether government protection is available, internal relocation is possible, and persecution exists countrywide.” For LGBTQ asylum applicants whose main persecutors are family members — parents, siblings, uncles, or cousins — or neighbors, fellow students, or co-workers, there have been some cases where IJ’s, the BIA, and the courts have accepted evidence that the government was unconcerned and would not provide protection. Such evidence usually takes the form of showing that the persecuted individual either unsuccessfully sought law enforcement help or was unable to in light of the welldocumented negative attitudes of law enforcement officers toward LGBTQ people. In some cases, however, the applicants have not been able to connect the necessary dots to make these showings and, even though having suffered severe persecution, were unable to win asylum. These cases can be difficult and complicated for many reasons, including language barriers, lack of documentary evidence, and a predisposition by many IJ’s and the BIA to be skeptical about the undocumented claims of applicant. That predisposition will be exacerbated by recent reports that the Justice Department is contemplating quotas for the IJ’s to speed up the hearing process. Another frequent problem is that individuals when first confronted by a government official upon entering the US, not being well informed about the evidentiary requirements, not assisted by a lawyer, and, in some cases, speaking a dialect in which avail-
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