Sessions’ Draconian Asylum Decision

On Monday, U.S. Attorney General Jeff Sessions made a radical decision that will undoubtedly result in death or significant harm to some of the world’s most vulnerable women: victims of domestic violence who live in countries that do not, or cannot, protect them from their abusive partners. Over the past two decades, the United States has provided a safe haven to many of these women through its asylum laws. In a heartless move that flouts established U.S. law and international human rights standards, Sessions found that a domestic violence victim from El Salvador—perhaps the most dangerous country on earth in which to be a woman—would not qualify for asylum, even though her own country had utterly failed to protect her.

In previous years, whether the United States was under a Republican or Democratic president, such a decision would have been unthinkable. The State Department’s human rights reports routinely criticize other countries for their lack of protections for domestic violence survivors, and U.S. asylum laws have evolved over the years to account for the multiple forms of persecution that victims may suffer—including persecution at the hands of a private actor—when their governments fail to provide protection. 

Asylum protections for victims of gender-based violence have been well established for decades—not only in the United States but also under the international human rights system. The United Nations’ 1951 Refugee Convention established the right to claim asylum on the basis of gender-based persecution and crimes. Historically, nations treated domestic violence as a private matter to be resolved between partners and families. But in modern times, violence against women has come to be understood as a human rights violation—a form of gender-based discrimination that subordinates and oppresses women. When nations fail to prevent violence at the hands of private individuals, protect women and girls from it, and ensure access to remedies for survivors, the international community has an obligation to step in. Indeed, international and domestic bodies incorporated this understanding into treaties, policy, legislation, and court decisions. And many states, including Australia, Canada, Germany, and the United Kingdom, have recognized the legitimacy of gender-based violence asylum claims.

Sessions’ decision in this case, Matter of A-B-, will have particularly dire consequences for the thousands of Central Americans fleeing domestic and gender-based violence in their home countries and seeking asylum in the United States—and that is precisely his intent. Recent years have witnessed a surge in migrant outflows from the Northern Triangle nations of Guatemala, El Salvador, and Honduras, and experts say that widespread gender-based violence has contributed to this trend. The region’s weak institutions, which fail to protect people from gangs and organized crime, also fail to protect victims of domestic violence. For instance, in 2013 only two percent of Guatemala’s 50,000 cases of violence against women culminated in a prison sentence for the aggressor. One in three women interviewed by the UN Refugee Agency on Mexico’s southern border reported that they were fleeing gender-based violence.

Some argue that the high rates of gender-based violence in neighboring countries and the attendant increase in migration require the U.S. government to limit admittances under asylum law, lest it open the floodgates to hundreds of thousands of immigrant women claiming to flee abusive husbands. But history shows that treating domestic violence survivors humanely—and aligning U.S. asylum law with international standards—won’t increase migration flows. Under the rigorous procedures in place until Sessions’ decision, only those with extreme cases who merit asylum get it. And the percentage of immigrants who entered the United States under the more generous standard used prior to Monday’s Matter of A-B- decision was remarkably small, suggesting that this reversal in U.S. commitment to humane treatment of domestic violence survivors under asylum law will have limited practical effect.

The symbolic message of this decision, coupled with the Trump administration’s track record, could not be more clear: immigrants are not welcome in the United States by this administration—regardless of the circumstances under which they seek refuge in our country. Indeed, it is no coincidence that Sessions’ radical decision in Matter of A-B- comes on the heels of other draconian policies enacted by the Trump administration that target another of the world’s most vulnerable groups: immigrant children. In an unprecedented move, the Department of Homeland Security recently began separating minors who arrived at the southern U.S. border from their parents. Reports that U.S. officials are forcibly separating nursing infants from their immigrant mothers, as well as incarcerating children in warehouses, where they are lucky to see two hours of sunshine a day, convey an unmistakable message that defies not only international standards but also the cherished values of the nation.

The U.S. government can comport with international asylum standards while maintaining strong border protection at the same time.

The United States need not turn away domestic violence survivors or tear children away from their parents in order to stem the tide of immigrant arrivals. The U.S. government can comport with international asylum standards while maintaining strong border protection at the same time. Instead of turning away survivors of domestic violence, the Trump administration should address the root causes of the problem by working with Northern Triangle countries to prevent and address gender-based violence, which would not only protect and empower women and girls but also help the administration reduce irregular migration in the long term. This should include seeking diplomatic and strategic solutions to the problem of violent gangs in Northern Triangle countries that are fueling so much of this epidemic.

The administration should also implement the U.S. Strategy to Prevent and Respond to Gender-Based Violence Globally and ensure that its U.S. Strategy for Central America addresses the rampant gender-based violence in the region. U.S. officials should work with neighboring governments to develop comprehensive legislative and policy frameworks to prevent and address gender-based violence, help train security and law enforcement authorities to enforce these laws, collaborate with local civil society organizations that provide legal aid and services to survivors, and scale up successful programs. And U.S. President Donald Trump should appoint an ambassador at large for the State Department’s Office of Global Women’s Issues who is authorized to promote this agenda.  

On the home front, Congress should conduct oversight hearings that require the U.S. attorney general to testify on the broad and sweeping policy. Because the decision in Matter of A-B- is normally one that would come from congressional legislation, Sessions should explain why the policy does not constitute an abuse of discretion. Congress should also ask Sessions to justify the significant cost of handling implementation, and until Sessions gives a satisfactory answer, Congress should restrict funding to the Department of Homeland Security to do so.

Sessions’ ruling in Matter of A-B- not only blocks a pathway to safety for domestic violence victims, it also undermines the United States’ reputation as one of the few true beacons of hope and liberty in the world and a country bent on preventing and responding to violence against women. This, after all, is the country that passed the landmark 1994 Violence Against Women Act (VAWA), a bipartisan commitment that had worldwide reverberations and historic implications. VAWA has poured billions of dollars into efforts to tackle the problem and is up for reauthorization this year. New bipartisan congressional action is desperately needed now, to stop the irreversible damage that Sessions’ decision could cause. Nothing less than the fundamental values and character of the nation is at stake.