By Jessica Senat*

Gregory Anton: You see how it is, Elizabeth.

Elizabeth: I see JUST how it is, sir.[1]

 

Part I: Introduction

In Matter of A-B-,[2] Attorney General Jeff Sessions (hereinafter “A.G. Sessions”) reversed a decision that allowed women fleeing domestic violence to apply for asylum.[3]  A.G. Sessions used a rare authority, the “referral and review mechanism,” to refer the case to himself.[4]  In the opinion, he dismissed domestic and gang violence as a claim that is “unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.”[5]  The governing asylum statute states that an “applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant” when seeking asylum protection.[6]  A.G. Sessions did not implement new standards that may bar individuals who suffer gender-based violence from applying for refugee protection; his holding is directed at the Board of Immigration Appeals’ (hereinafter “BIA”) failure to apply precedent law.[7]  It is hard to distinguish this holding from surrounding dicta because the holding is overshadowed by his outdated views on gender-based persecution, over-generalized statements without factual backing, and inflated legal requirements that cause more confusion than clarity.

A.G. Sessions’ decision reflects a harsh reality: adjudicators still struggle to accept gender-based violence as a legitimate basis for persecution under refugee law.  This blog post will first discuss the legislative history of the asylum statute and the concept of gender-based persecution.[8]  The Refugee Convention, which was created as an answer to the refugee crisis after World War II,[9] was the foundation for asylum law in the United States.  It did not speak to gender-based violence as the drafters did not realize it existed.[10]  This  blog post will then discuss the “Particular Social Group” requirement.  Legislative history has shown that asylum law is amorphous.  It is riddled with inconsistent holdings between both administrative and judicial adjudication.[11]  The BIA attempted to provide a standard in determining the PSG requirement in Matter of Acosta, but the decision only fueled more confusion amongst the courts.[12]

Parts IV and V discuss how A.G. Sessions’ opinion arguably gaslights the American public.[13]  He trivializes gender-based persecution and undermines immigration policy by (1) abusing a rarely used procedural tool to refer immigration cases to himself; (2) incorporating over-generalized statements without factual or precedential support; and (3) conflating requirements under the asylum statute.  This blog post proposes administrative and legislative reform: the BIA should establish separate regulatory standards as guidance to determine whether gender-based violence is “acceptable” persecution under the immigration statute.  Furthermore, there should be a push for reforming the self-referral provision to prevent abuse of the authority.

Part II: Legislative History

            The history of refugee law in the United States errs more on the side of exclusivity than inclusivity.[14]  Discriminatory policies were prevalent throughout history.  An example of this is the Emergency Quota Acts of 1921 and 1924.[15]  Congress designed a quota system that limited the number of minorities permitted to enter the United States and made the process easier for Northern and Western Europeans.[16]  Remnants of these discriminatory policies remained under the enactment of the Immigration and Nationality Act (hereinafter “INA”) in 1955 and even after the quota system was eliminated under the amendments to the INA laws.[17]

In 1967, the United States began to take steps to eliminate discriminatory refugee policies.  Today’s immigration and refugee laws are based on the 1951 United Nations Convention Relating to the Status of Refugees or Refugee Convention.[18]  The Refugee Convention was a response to the refugee crisis left in the wake of World War II.  Its defined purpose was to protect any “person who faces serious human rights abuses where a state has failed in its fundamental obligation of protection for reasons of the person’s status or beliefs, resulting in fundamental marginalization and an inability of the person to vindicate his or her rights in his or her home country.”[19]  Under the Convention, an applicant only needed to show that he or she had a “well-founded fear” of persecution.[20]

Congress incorporated the provisions of the Refugee Convention when it signed the United Nations Protocol Relating to the Status of Refugees (the Protocol of 1967).[21]  However, it was not until the Refugee Act of 1980 where the United States removed geographical or ideological biases and expanded the definition of “refugee” to include all persons regardless of ethnicity or nationality.[22]  It also included the new Particular Social Group (hereinafter “PSG”) standard.  Under this standard, an applicant is required to prove that he or she is fleeing persecution on the basis of being a member of a particular social group.[23]

Part III: The Standard

Under 8 U.S.C. § 1158(b)(1)(B)(i),[24] the PSG requirement has been the source of various interpretations since enactment.  Mainly, the ambiguity of the term has caused many contradictions between the circuit courts and the BIA.  In 1987, the BIA sought to provide clarification on the term in Matter of Acosta.[25]  It stated that the “shared characteristic” is found in the fact that it cannot be changed.[26]

In 2008, the BIA established additional requirements for satisfying the PSG standard.[27]  In Matter of S-E-G- and Matter of E-A-G-, the BIA concluded that in order to satisfy the PSG standard, the group must be based on (1) an immutable and shared characteristic; (2) be socially visible; and (3) particularly defined.[28]  The BIA stated that “[t]he essence of the ‘particularity’ requirement . . . is whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons.”[29]  In Matter of M-E-V-G-,[30] the BIA further defined particularity as having “definable boundaries”; it must be defined specifically and not be “amorphous, overbroad, diffuse or subjective.”[31]  The “social visibility” element is satisfied if the society in question perceives the group as socially distinct.[32]  The PSG standard also requires causation, referred to as “nexus.”[33]  Nexus is established when the applicant shows that “his membership in a particular social group was or will be a central reason for his persecution.”[34]  The BIA stated that the persecutors’ views and motives are important in establishing nexus.[35]

a. Jumping Through Hoops of Fire: The Problem of Circularity with Social Distinction and Particularity Standards 

The BIA claimed to have clarified the PSG elements as separate but necessary.[36] However, BIA’s nitpicking creates a narrow standard for applicants, increases the burden of proof, and confuses the requirements with overlapping definitional terms.  In Rejecting the Children of Violence: Why U.S. Asylum Law Should Return to the Acosta Definition of “A Particular Social Group,” Rachel Gonzalez Settlage noted the difficulty in proving the social distinction and the particularity requirement.[37]  Settlage stated “[p]articularity . . . suggests hard limits and requires specificity of definition. A group cannot be too broad or too diffuse.”[38]  However, if the applicant provides evidence proving that the society in question uses specific parameters to define the social group, rendering them “socially distinct,” these parameters may not satisfy the particularity requirement if the BIA finds that it is too “broad” or “amorphous.”[39]  Although Settlage discusses this difficulty for applicants that are fleeing gang violence,[40] the standards can frustrate applicants from various backgrounds.

b. The Difficulty of Proving Gender-Based Persecution[41]

The phrase “jumping through hoops of fire” is an accurate description of the process applicants must go through in order to establish asylum protections from domestic abuse.[42] Historically, the laws did not address gender-based violence.[43]  The definition of gender-based persecution can be divided into two categories: being persecuted as a woman and being persecuted because of being a woman.[44]  In Gender and the “Membership in A Particular Social Group” Category of the 1951 Refugee Convention, Andrea Binder stated that being persecuted as a woman relates to “forms of persecution that are gender-specific, such as rape, female genital mutilation (FGM), or domestic abuse.”[45]  The concept that women are persecuted because they are women “is often discussed in the context of the ‘membership in a particular group’ category.  The definition of refugee is deficient in addressing the concerns of persecuted women.”[46]

Historically, the Refugee Convention’s “main concern was to address the mass persecutions suffered by the European Jews and other targeted persons based on racial, religious and political grounds.”[47]  According to Binder, traditional definitions of human rights violations focused on abuse from the state instead of social or economic rights.[48]  This led to characterizing a woman’s experience as a “private matter” to be addressed by the government.[49]  Such “gender deficiency”[50] within the refugee law should not be carried over to modern day interpretations of asylum statutes.

Part IV: Modern-Day Gender-Based Persecution

It is not a secret that U.S. asylum laws do not include gender as one of the enumerated bases for persecution.[51] The BIA often conflates the two types of persecution women suffer into one broad category of domestic violence or dismisses them altogether.[52]  The archaic perspectives that places domestic violence as a private matter to be handled within the confines of the home is harmful for those who seek legal recourse in any context.  With this backdrop, Matter of A-R-C-G- is still viewed as a huge step forward for asylum law.  At the time, it signaled that the BIA was finally ready to address the problem of “gender-deficiency” within U.S. immigration laws.

a. Matter of A-R-C-G-

In Matter of A-R-C-G-,[53] respondent, a mother of three minors at the time, had entered the United States from Guatemala in 2005 to flee from her abusive husband.[54]  She filed a timely application for asylum and withholding of removal on behalf of herself and her three children.[55] It was undisputed that respondent was repeatedly abused by her husband.[56]  Respondent contacted the police many times, but the police failed to help her and arrest the husband after he hit her.[57]  She knew that her husband would harm her if she returned to Guatemala.[58]

On appeal, the Department of Homeland Security (hereinafter “DHS”) subsequently conceded that she satisfied the PSG requirement and only requested remand for further factual development.[59]  The BIA held that respondent successfully satisfied the particular social group requirement.[60]  The BIA looked to social factors when determining whether the group had a social distinction within the Guatemalan society:

Such evidence would include whether the society in question recognizes the need to offer protection to victims of domestic violence, including whether the country has criminal laws designated to protect domestic abuse victims, whether those laws are effectively enforced, and other sociopolitical factors.[61]

 

As this blog post suggests, these sociopolitical criteria are necessary not only for determining whether an applicant belongs to a particular social group, but for determining whether a government can actually handle civil domestic violence.  The BIA should use these factors to formulate a test that is subject to the Chevron test of judicial deference, and require courts and administrative judges to evaluate whether the government has the resources to address domestic violence.

b. In the Matter of A-B-

In Matter of A-B-, A.G. Sessions overruled Matter of A-R-C-G-, holding that the case was erroneously decided because it followed concessions made by the DHS as conclusive legal points instead of applicable law.[62]  This, he argued, prevented the BIA from holding that applicants fleeing domestic violence or gender-based violence are not likely to satisfy the requirements for asylum.[63]  Sessions’ opinion failed to provide any clarity for several reasons.

First, he confuses the standard to establish a presumption of future persecution and creates his own standard to establish persecution.[64]  A.G. Sessions states that in order to prove persecution, an applicant must show that (1) there was an intent to target a belief or characteristic; (2) the level of harm was severe; and (3)  the government is unable to control or prevent the harm.[65]  Although the elements are correct, A.G. Sessions mistakenly believes it proves an applicant has suffered persecution.  In actuality, an applicant must satisfy these elements to prove that he or she is in danger of future persecution.[66]

Second, most of his criticism was not backed with supporting evidence or cases.  A.G. Sessions stated that “the opinion has caused confusion because it recognized a new category of particular social groups based on private violence.”[67]  However, A.G. Sessions did not cite to any material or evidence that supports that statement.[68]  Another example demonstrating a lack of authority is his statement that while “there may be exceptional circumstances when victims of private criminal activity could meet these requirements, they must satisfy established standards when seeking asylum.”[69]  There has never been an exceptionality requirement for those who seek protection from domestic abuse.  A.G. Sessions himself does not cite to any precedent law to confirm this.[70]

In addition, A.G. Sessions incorrectly concluded that the PSG requirement failed in Matter of A-R-C-G- because “a particular social group must exist independently of the harm asserted in an application for asylum or statutory withholding of removal.”[71]   The well-founded fear of future persecution is an alternative argument available for applicants who may not be able to establish past persecution; the applicant must prove that he or she is in danger of future persecution.[72]

Part V: Conclusion

It is reasonable to suggest that A.G. Sessions’ opinion serves a broader goal in the form of political gaslighting.  The Trump Administration, Republican Party and the greater American population are familiar with this tactic in politics.[73]  A.G. Sessions’ opinion is an example of how to subtly subvert the greater issues of gender-based violence and the lack of acceptance of gender-based persecution.  He does this by implementing harrowing language that attacks America’s faltering sense of inclusivity under immigration law.  His confusing summation of asylum law requirements undermines the foundational principle of protecting a “person who faces serious human rights abuses” under asylum law.[74]  This only contributes to the growing inaccurate view of immigrants today.

* Jessica Senat, Law Student at Touro College Jacob D. Fuchsberg Law Center, class of 2020. Received a Bachelor of Arts in English Literature from Fordham University at Lincoln Center.

[1] Gaslight (Metro-Goldwyn-Mayer 1944) (a mystery-thriller film about a husband who manipulates his wife into believing that she is going insane).

[2] 27 I. & N. Dec. 316 (A.G. June 11, 2018).

[3] Id. at 317.

[4] The provision states in relevant part “[t]he Board shall refer to the Attorney General for review of its decision all cases that: (i) The Attorney General directs the  Board to refer to him.”  8 C.F.R. § 1003.1(h)(1) (2018).

[5] Matter of A-B-, 27 I. & N. Dec. at 320 (discussing that one must show that the government is unable to address violence or persecution in order to successfully apply for asylum).

[6] 8 U.S.C. § 1158(b)(1)(B)(i) (2018) (“To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”).

[7] Matter of A-B-, 27 I. & N. Dec. at 333.

[8] Andrea Binder, Gender and the “Membership in a Particular Social Group” Category of the 1951 Refugee Convention, 10 Colum. J. Gender & L. 167 (2001).

[9] Id. at 169.

[10] Id. at 170.

[11] Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009); Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014), as revised (Jan. 27, 2014) (4th and 7th Circuits holding that being a former gang member is recognized as a particular social group); Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007); Gonzalez v. U.S. Atty. Gen., 820 F.3d 399 (11th Cir. 2016) (the 9th and 11th Circuits holding that former/current gang membership does not constitute a particular social group for the purposes of the Asylum statute).

[12] Matter of Acosta, 19 I. & N. Dec. 211, 211 (BIA March 1, 1985).

[13] Merriam-Webster defines Gaslighting as “manipulative behavior used to confuse people into thinking their reactions are so far off base that they’re crazy.”  Gaslighting, Merriam-Webster, https://www.merriam-webster.com/dictionary/gaslighting (last visited Oct. 26, 2018).

[14] Kathryn M. Bockley, A Historical Overview of Refugee Legislation: The Deception of Foreign Policy in the Land of Promise, 21 N.C. J. Int’l L. & Com. Reg. 253, 259 (1995); Refugee Timeline: Immigration and Naturalization Service Refugee Law and Policy Timeline, 1891-2003, U.S. Citizenship & Immigr. Services, https://www.uscis.gov/history-and-genealogy/our-history/refugee-timeline (last updated Feb. 20, 2018).

[15] Bockley, supra note 14, at 259.

[16] Bockley, supra note 14, at 259 (“The Quota Act set forth percentages of immigrants eligible for admission from both northern and southeastern Europe based on percentages derived from the U.S. Census Bureau.  However, immigration from the western European countries remained unrestricted . . . the Quota Act has been widely criticized for elevating the issues of race, ethnic prejudice and assimilation above any concerns for human suffering or the desperate situation of particular refugees.” (footnote omitted)).

[17] Refugee Timeline, supra note 14 (discussing that the INA got rid of the quota system but still included preferences that favored immigrants from eastern and northern Europe).

[18] Law of Asylum in the United States § 1:2 (2018) (explaining that, in the United States, there are three major forms of protections for refugees: asylum, withholding of removal, and convention against torture).

[19] Id.; see also Bockley, supra note 14, at 253.

[20] Bockley, supra note 14, at 253.

[21] Refugee Timeline, supra note 14.

[22] Refugee Timeline, supra note 14.

[23] Bockley, supra note 14, at 253; also see Melissa J. Hernandez Pimentel, The Invisible Refugee: Examining the Board of Immigration Appeals’ “Social Visibility” Doctrine, 76 Mo. L. Rev. 596 (2010).

[24] 8 U.S.C. § 1158(b)(1)(B)(i) (2018) (“To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”).

[25] Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA March 1, 1985) (holding that the PSG requirement meant “persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.  The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership”).

[26] Id.

[27] See Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA July 30, 2008); Matter of E-A-G-, 24 I. & N. Dec. 591 (BIA July 30, 2008) (in both cases, respondents were fleeing gang violence, and the BIA reviewed the eligibility of persons who applied for asylum on the basis of being a member of a gang).

[28] Matter of S-E-G-, 24 I. & N. Dec. at 584; Matter of E-A-G-, 24 I. & N. Dec. at 593.

[29] Matter of S-E-G-, 24 I. & N. Dec. at 584.

[30] 26 I. & N. Dec. 227 (BIA Feb. 7, 2014).

[31] Id. at 240.

[32] Id. at 241.

[33] Id. at 242.

[34] Matter of W-G-R-, 26 I. & N. Dec. 208, 223 (BIA Feb. 7, 2014).

[35] Id. at 223 (“[T]he persecutor’s views play a greater role in determining whether persecution is infliction on account of the victim’s membership in a particular social group.”).

[36] Matter of M-E-V-G-, 26 I. & N. Dec. 227, 241 (BIA Feb. 7, 2014).

[37] Rachel Gonzalez Settlage, Rejecting the Children of Violence: Why U.S. Asylum Law Should Return to the Acosta Definition of “A Particular Social Group”, 30 Geo. Immigr. L.J. 287, 310 (2016).

[38] Id.

[39] Id.; see also Particular Social Group Practice Advisory: Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R, Nat’l Immigrant Just. Ctr., June 2018, https://www.immigrantjustice.org/sites/default/files/PSG%2520Practice%2520Advisory%2520and%2520Appendices-Final-1.22.16.pdf.

[40] Settlage, supra note 37, at 310.

[41] This blog post does not attempt to provide an exclusive definition of gender-based violence.  For the sake of the argument, the focus is to look into how it affects women under U.S. refugee and asylum laws.

[42] Courts often deny the petitioners characterization of the membership group he or she alleges to belong to: Gomez v. I.N.S., 947 F.2d 660 (2d Cir. 1991) (Petitioner appealed decision from BIA that denied asylum protection from guerrilla Salvadorian guerillas who raped and assaulted her. The Second Circuit concluded that Gomez “failed to produce evidence that women who have previously been abused by the guerillas” were a particular social group and that petitioner did not meet her evidentiary burden by submitting evidence of past persecution.); S.E.R.L. v. Attorney Gen. U.S., 894 F.3d 535, 555 (3d Cir. 2018) (holding that appellant failed to meet the social distinct standard because courts did not believe “immediate family members of Honduran women unable to leave a domestic relationship” was a socially distinct group in Honduras); Reyes v. Sessions, No. 17-9550, 2018 U.S. App. LEXIS 26376, at *7 (10th Cir. Sept. 18, 2018) (rejecting Appellant Castillo Reyes’s proposal that she belonged to a “social group of female victims of domestic violence “as is circularly defined by the harm suffered by its members and therefore isn’t a valid particular social group under the INA.”).

[43] Binder, supra note 8, at 169.

[44] Binder, supra note 8.

[45] Binder, supra note 8, at 167-168.

[46] Binder, supra note 8, at 168.

[47] Binder, supra note 8, at 169.

[48] Binder, supra note 8, at 169.

[49] Binder, supra note 8, at 169.

[50] Binder, supra note 8, at 167.

[51] Melanie Randall, Refugee Law and State Accountability for Violence Against Women: A Comparative Analysis of Legal Approaches to Recognizing Asylum Claims Based on Gender Persecution, 25 Harv. Women’s L.J. 281, 294 (2002) ( “U.S. refugee law has yet to grapple adequately with the fact that gender can form the basis of a ‘particular social group,’ and, as a result, some gender claims have been allowed but only through convoluted legal logic, while others have simply been denied.”).

[52] 8 U.S.C. § 1158(b)(1)(B)(i) (2018); see also In re Fauziya Kasinga, 21 I. & N. Dec. 357 (BIA June 13, 1996) (though this case was viewed as a breakthrough for addressing gender violence as an actual basis for asylum protection, it did not directly address persecution on account of gender but opted for a more narrow analysis instead).  See Randall, supra note 51, at 295.

[53] 26 I. & N. Dec. 388 (BIA August 26, 2014).

[54] Id. at 389.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id. at 392.

[60] Id. at 393-4.

[61] Id.

[62] Matter of A-B-, 27 I. & N. Dec. 316, 319 (A.G. June 11, 2018).

[63] Id.

[64] Asylum Practice Advisory: Applying for Asylum after Matter of A-B-, Nat’l Immigrant Just. Ctr., June 2018, https://www.immigrantjustice.org/sites/default/files/content-type/resource/documents/2018-06/Matter%20of%20A-B-%20Practice%20Advisory%20-%20Final%20-%206.21.18.pdf.

[65] Matter of A-B-, 27 I. & N. Dec. at 337.

[66] Asylum Practice Advisory, supra note 64.

[67] Matter of A-B-, 27 I. & N. Dec. at 319.

[68] Id.; “The fact that in some cases, Courts have found an A-R-C-G style PSG not viable based on the facts of the case, or that the asylum seeker was not a member of her proposed group, does not mean that A-R-C-G- is not workable, rather that it is a functioning legal tool.”  Asylum Practice Advisory, supra note 64.

[69] Matter of A-B-, 27 I. & N. Dec. at 317.

[70] Asylum Practice Advisory, supra note 64.

[71] Matter of A-B-, 27 I. & N. Dec. at 334-35 (“[I]f a group is defined by the persecution of its members then the definition of the group moots the need to establish actual persecution.”).

[72] Asylum Practice Advisory, supra note 64 (citing Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003) (“a group based on the characteristic of having been forcibly recruited as a child soldier includes the harm of forced recruitment as a part of its definition and so would fail as to past persecution if the asylum seeker was arguing he had been persecuted in the form of forced recruitment because of his status as a forcibly recruited child solder.  But if vigilantes were targeting children who had been forced to be soldiers, the claim could prevail because the harm feared (e.g. attacks by vigilantes) is different from the harm that places one in the PSG.”)).

[73] Amanda Carpenter, I’m a Republican. Why is My Party Gaslighting America?, Politico (Jan. 30, 2018), https://www.politico.com/magazine/story/2018/01/30/republican-party-release-the-memo-gaslighting-america-216554; Heidi Li Feldman, What Lawyers Can and Should Do About Mendacity in Politics, 56 Duq. L. Rev. 125 (2017).

[74] Law of Asylum in the United States, supra note 18.