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After suffering 10 years of extreme sexual, physical and mental abuse at the hands of her husband, Rody Alvarado fled her native Guatemala in 1995 and applied for asylum in the United States. Her asylum application was granted in 2009.
Analysis

Is Domestic Violence Private?

It took 20 years for courts to say no. It took Jeff Sessions no time to say yes.

When it comes to immigration, Attorney General Jeff Sessions has not been reluctant to assert the powers of his office. With his decision, announced Monday, to virtually eliminate domestic violence as grounds for asylum, he summarily swept away more than two decades of hard-fought legal cases and painstaking decisions by immigration judges and appeals courts that favored women who were victims.

In a speech to immigration judges just before his decision was published, Sessions framed it as part of his drive to thwart migrants from Central America coming to the southwest border and to reduce drastically a backlog of more than 700,000 cases that is sinking the nation’s immigration courts. Many of them are asylum cases, with the number of people seeking that protection soaring from fewer than 4,000 in 2009 to more than 73,000 new cases in 2016.

The attorney general steered resolutely against the tide of the #MeToo movement, in which American women have come forward to reveal sexual violence and abuse as hidden systemic realities in many areas of life.

Instead, Sessions focused on narrowing the avenues available to migrant women who were battered or sexually assaulted, by finding that domestic violence in most countries is a common crime committed “for personal reasons” that could almost never meet the legal definition of persecution to support an asylum claim.

“The asylum statute does not provide redress for all misfortune,” Sessions wrote.

Despite the attorney general’s suggestion, advocates have never contended that any woman who was beaten or raped by a domestic partner in their home country should qualify. But starting more than twenty years ago, lawyers fighting immigration cases began crafting specific descriptions of abuse victims to meet the requirements of asylum law.

The legal arguments hinge on definitions of persecution. People seeking refuge can win protection in the United States if they have suffered persecution for one of four classic reasons, based on race, religion, nationality or political belief. But there is a fifth, more vaguely defined category, which stems from being part of a “particular social group.”

There was no hint in the original Refugee Act of 1980 that people escaping domestic violence might be covered. But after an epic 13-year battle, in 2009 lawyers from the Center for Gender and Refugee Studies at the University of California Hastings College of Law won an important early case in which an immigration judge granted asylum to a Guatemalan woman, Rody Alvarado, who had been brutalized.

A pivotal decision came from the Board of Immigration Appeals in 2014, in another contested case involving a Guatemalan woman whose husband, among other things, broke her nose, raped her and tried to burn her alive. The police did nothing to stop him.

Under President Obama, lawyers for the government agreed that the woman’s suffering — and Guatemala’s systemic indifference — rose to the level of persecution. In granting her claim, the board said its decision was a precedent, and since then thousands of women, mainly from Central America, have won cases by following those guidelines.

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Over the years, at least three earlier attorneys general had moved to weigh in on domestic violence cases, but never came to any conclusions. The attorney general has vast authority to shape immigration decisions because, in a quirk of judicial history, these courts are under the Justice Department.

When Sessions stepped in, taking over a 2016 case from a court in North Carolina, he moved forcefully, rejecting the Obama administration’s findings and throwing out the immigration board’s precedent, dismissing it as “wrongly decided.” He said the ruling “caused confusion” by allowing asylum based on “private violence.”

Although the case was about a domestic violence victim, with little elaboration Sessions extended his decision to deny asylum to most migrants fleeing gang violence as well.

In announcing the abrupt change of course, Sessions ignored the arguments of the Trump administration’s Department of Homeland Security, the agency in charge of running the immigration system. In papers filed in the case, DHS lawyers asked Sessions to clarify some terms but urged him not to overrule the domestic violence precedent entirely.

Advocates were appalled. “Sessions is trying to toss us back into the Dark Ages,” said Karen Musalo, a law professor at Hastings who represented women in two of the most influential cases. “These aren’t just private criminal acts when you have a society that marginalizes women and allows femicide and severe violations of women’s rights with impunity.”

The attorney general’s decision will likely deepen divisions among immigration judges. In a statement, fifteen former judges called it “an affront to the rule of law.” They said they were “deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them.”

But another former immigration judge, Andrew R. Arthur, agreed with Sessions’ reasoning. “You’re talking about purely personal criminality,” said Arthur, a resident fellow in law and policy at the Center for Immigration Studies, a group in Washington that seeks reduced immigration and whose research is often cited by the Trump administration. “These are horrible cases,” he said, “but it’s no different from any other crime, it’s not because she’s a member of some group.”

For the immediate future, the attorney general will achieve his larger goals. The case will return to Stuart Couch, the immigration judge who originally denied the woman in the 2016 case, and who now has far more ample grounds to deny her again. Her lawyers say they plan multiple appeals, including to the federal courts, where the attorney general can in principle be overturned.

But those appeals could take years and until then, Sessions told the judges sternly, “It will be your duty to carry out this ruling.” It will greatly diminish the chances to avoid deportation for thousands of abuse victims, mostly from Central America, whose cases are already before the courts, and further curtail the legal avenues for migrant women fleeing from that region.