Jeff Sessions' Asylum Policy Flouts Legal Precedent

Jeff Sessions' Asylum Policy Flouts Legal Precedent

Last month, Attorney General Jeff Sessions reversed years of legal precedent by declaring that victims of domestic violence fleeing their home country should no longer be considered eligible for asylum in the United States because such violence is “private.” The Attorney General’s directive, which a bipartisan group of lawmakers voted this week to block, ignores the real-world conditions that drive thousands of refugees to flee their home countries and seek protection in the United States in the first place. These victims — the vast majority of whom are women — are refugees from discriminatory public institutions, characterized by the systemic failure of foreign law enforcement agencies and courts to prosecute their abusers.

Sessions’ reversal of a 2014 and a 2016 Board of Immigration Appeals case, which extended asylum to victims of domestic violence and gang violence, endangers thousands of families and puts the entire asylum system in limbo. Those cases established a precedent of granting asylum to victims of domestic violence and gang violence so long as they were able to prove that their governments were “unable or unwilling” to prevent it. The Attorney General’s misguided policy change is based on the pernicious idea that the failure to investigate and prosecute crime does not qualify as ineffective governance.

In reality, legal institutions in most Central American countries are ill-equipped or actively unwilling to combat violence, often against women. There is little to no trust in police and security forces in many of these countries, especially within the Northern Triangle (Guatemala, El Salvador, and Honduras), one of the most violence-stricken regions in the world. Take Guatemala, for example, where an estimated 80 percent of the country’s police forces are considered unreliable and where impunity for violent crimes stands at 98 percent, according to a report supported by the U.S. Department of Justice.

That impunity extends from law enforcement to the judicial system. Corrupt courts and connections between political leaders and organized crime make prosecuting violent crimes almost impossible. In 2015, 35 Honduran mayors and deputy mayors were under investigation for connections to organized crime; in 2014, more than 98 percent of Peru’s mayors were under investigation for corruption. These countries do have neither the ability nor the desire to offer substantive protections to their citizens, making Sessions’ declaration of violence as a “private” affair all the more alarming.

Women are uniquely at risk in this region. In the Northern Triangle and Mexico, 82 percent of women interviewed by U.S. authorities in 2015 were found to have a credible fear of persecution or torture. But Sessions is electing to ignore these staggering statistics in favor of a partisan agenda, extinguishing hope for thousands. 

As we have learned from our work on behalf of such asylum seekers, this misguided policy also robs American society of all the unique contributions these women make to our country. In one such case, a woman from Bangladesh, whose case was processed before Sessions’ decision, routinely suffered pervasive physical abuse in her home country, including rape, burnings, and beatings. She was able to claim asylum on grounds of domestic abuse. She now runs her own small business and, in her free time, serves as a leader in New York’s South Asian community, advocating for the legal rights of other immigrants.

In another case, a young man from Kenya endured five years of unrelenting abuse at the hands of a notorious criminal gang, who murdered his family members, held him and his sister at gunpoint and forced him to watch as they raped his aunt. Kenyan authorities repeatedly fail to prosecute or control serious crimes, with an overall conviction rate for criminal prosecutions between 13 and 16 percent. Cases like these demonstrate the absurdity of depicting widespread crises of gang violence as somehow a private concern. They also show why U.S. appellate courts and Congress should do everything in their power to correct course and ensure that the United States remains a refuge for those who have nowhere else to turn. 

Regardless of what policies the Attorney General adopts in his effort to dissuade asylum seekers from entering the United States, they will continue to risk everything to come here, parting with their life savings and putting their lives in the hands of notoriously exploitative smugglers. They will continue do so for a simple reason: Their governments have failed to protect them, and as perilous as the journey may be, it is still safer than remaining at home.

Sarah Gilbert is a partner at Crowell & Moring’s New York office and a member of the firm's Litigation Group. Through her pro bono practice and work with the Catholic Legal Immigration Network, Inc., she has represented numerous immigrants in U visa and asylum cases.

Jared Levine is a counsel in the Litigation Group at Crowell & Moring's New York office. He has represented dozens of individuals in immigration proceedings, employment disputes, criminal appeals, and landlord-tenant litigation. 

Sehar Sabir is an associate at Crowell & Moring, where she practices in the Insurance/Reinsurance group. She has represented immigrants seeking asylum and immigrant children seeking Special Immigrant Juvenile (SIJ) status.

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