Meg Kuck, Founder and Director, Shine the Light Foundation
On Monday Attorney General Sessions delivered a speech to immigration judges regarding his decision to overrule the policy of domestic and gang violence survivors seeking asylum in the United States. His ruling will make it next to impossible for those who have experienced this kind of hardship to seek asylum in the United States, and essentially, sending these individuals to their graves for they surely will be persecuted and killed upon returning to their home country. A recent case, Matter A-B-, decided personally by Sessions confirmed this ruling.
Sessions assured those in attendance that the new decision was based on “a correct interpretation of the law.” However if you examine parts of the speech it's clear that this new action is based not on the examination of the previously existing policy vis-a-vis asylum procedure and law - which requires a close and thoroughly documented examination of each case as opposed to adhering to a blanket policy - but rather solely on the desire to restrict immigration. “All of us should agree that, by definition, we ought to have zero illegal immigration in this country,” Sessions declared. Session and his ruling that will very likely destroy, or kill, the lives of individuals rather than offer a safe haven to those unjustly persecuted is simply a pawn to a larger agenda.
As Stuart Anderson, Forbes contributor on globalization, business, technology and immigration, notes in a recent op-ed for the publication: "in addressing the immigration judges, who are not independent judges but employees of the executive branch, Jeff Sessions did not implore them to take care that asylum seekers are not returned to death or danger. Instead, he urged the judges to decide a lot of cases – and quickly." “Volume is critical,” Sessions told the immigration judges. “It just is." The implications of employing this kind of blanket policy are dangerous, and life-threatening.
In an effort to better understand the ruling and its implications, Anderson interviewed Drew Collopy, a partner at Benach Collopy LLP. Dree serves as chair of the American Immigration Lawyers Association’s (AILA) National Asylum and Refugee Liaison Committee and is the author of Asylum Primer. The interview is below.
Stuart Anderson: What is the difference between a refugee and an asylee?
Dree Collopy: Refugees and asylees must meet the same legal definition of “refugee” under the Immigration and Nationality Act in order to be granted protection in the United States. The difference is in how the individuals’ applications for protection are processed. Refugees are processed abroad, while asylum seekers’ applications are processed while they are physically present in the United States.
Anderson: Can you explain the grounds for obtaining asylum under U.S. law?
Collopy: In order to obtain asylum in the United States, an individual must demonstrate that he or she is physically present in the United States and that he or she meets the legal definition of a refugee. Specifically, the applicant must show that he or she is unable or unwilling to avail him or herself of the protection of his or her home country because he or she has suffered past persecution or has a well-founded fear of future persecution on account of one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group.
If the persecutor is a private, rather than state, actor the applicant must show that the government was either unwilling or unable to control the private actor. The individual must also demonstrate that he or she is not subject to any statutory bars to asylum and that he or she merits a favorable exercise of the adjudicator’s discretion.
Anderson: Prior to Attorney General Sessions’ decision what was the policy on asylum for victims of domestic violence and gang violence?
Collopy: The policy was that these individuals, like every asylum applicant, must demonstrate – through credible testimony and corroborating evidence – that they meet all of the legal elements for asylum eligibility, including each part of the refugee definition. Each case was to be presented, considered, and analyzed on its own merit based on the individual’s specific factual circumstances and evidence presented, as well as the specific conditions in his or her country of feared persecution.
Anderson: How did Sessions’ action change the policy?
Collopy: Attorney General Sessions invoked a rarely utilized power to certify the Board of Immigration Appeals case, Matter of A-B-, to himself and then reverse the Board’s grant of asylum to a Salvadoran domestic violence survivor who had fled after suffering horrific violence that her own government failed to prevent or stop. In reversing the Board’s decision, the Attorney General overturned the 2014 Board of Immigration Appeals precedent case, Matter of A-R-C-G-, which affirmed that domestic violence survivors are deserving of protection. In doing so, the Attorney General asserted his own “unfettered authority” to unilaterally disregard and replace two decades of asylum jurisprudence, and turned back the clock to a time when the United States wrongfully denied protection to women fleeing gender-based persecution.
Although the Attorney General overturned Matter of A-R-C-G-, he actually did not create any new definition or legal test. Rather, he referenced existing legal precedent while inappropriately pre-judging asylum seekers’ claims as not warranting protection regardless of their individual merits, the facts and evidence presented, and the relevant country conditions. He disregarded the principle that every asylum case must be carefully considered on its own individual merit and directed adjudicators nationwide to do the same. Specifically, he stated, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” This is not actually what the law says.
Anderson: How do you think the new policy will affect women fleeing violence in Central America or from other countries?
Collopy: Sessions’ unilateral decision will undoubtedly result in significant numbers of bona fide refugees being returned to the hands of their persecutors. This is yet another barrier conjured by the Trump Administration to impede due process and access to our asylum system.
Amidst the already mounting evidence of U.S. Customs and Border Protection’s (CBP) failure to properly process bona fide asylum seekers, Sessions’ decision encourages and enables CBP officers’ unlawful practices of turning away asylum seekers and refusing to recognize these victims of horrific violence as more than just economic migrants. It also impedes due process for these asylum seekers by pre-judging their claims as a whole, rather than on their individual merit, and denying them a full and fair hearing on their claims. Finally, it further erodes the independence of the Immigration Courts and Board of Immigration Appeals, whose judges had utilized their expertise in immigration law over the past decades to arrive at the current state of asylum law.
Anderson: Do you expect there will be legal action in response to the Attorney General’s action?
Collopy: Yes, I expect the decision in Matter of A-B- to be appealed to the U.S. Court of Appeals for the Fourth Circuit. I also expect that these victims of violence, who are fleeing to save their lives and their children’s lives, will continue to flee and to present their valid asylum claims. I expect that their advocates – myself included – will continue to fight for them to have a fair opportunity to be heard and to seek the protection that they need. We will continue to fight for the America we know, an America that is a welcoming beacon of hope for refugees fleeing persecution.
Anderson: In the decision, it states: “Aliens seeking a better life in America are welcome to take advantage of existing channels to obtain legal status before entering the country.” Given our legal immigration system, are “existing channels” a realistic option for the individuals you’ve seen applying for asylum?
Collopy: There are no viable “existing channels” through the U.S. legal immigration system for victims of violence in Central America to seek protection from within their own countries. Moreover, victims of persecution need to escape and they need to escape as quickly as possible. It is not realistic to expect them to apply for other existing immigration benefits, given how long processing of such benefits will take and given that they may not even be eligible for such benefits. Requiring that would be a death sentence for many of these victims of persecution. Moreover, it is not illegal to enter the United States for the purpose of seeking asylum protection.
Anderson: What do you think is the purpose of the new policy?
Collopy: Given Sessions’ demonstrated hostility toward immigrants and deep-seated bias against asylum seekers, as well as the Trump Administration’s other actions and statements with regard to immigrants and asylum seekers, the clear aim is to continue to impede due process for immigrants, to deport as many people as possible, and to eliminate protection for as many refugees as possible.
Anderson: Is there other language in the decision that seems designed to make it more difficult for individuals to receive asylum?
Collopy: Yes, the decision contains this sentence: “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.”
Several of the footnotes also indicate the Attorney General’s desire for this decision to apply as broadly as possible to prevent access to asylum for as many people as possible.
Anderson: Do you fear your clients and other women will be sent back to dangerous or life-threatening situations as a result of the new administration policy on asylum?
Collopy: Yes, absolutely.
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