A week after MS-13 gang members murdered his girlfriend and promised to kill him next, Wilmer fled his home in Honduras. In 2015, he followed the path that thousands of Central Americans take every year, heading north to the United States, running from violence and hoping to find some form of protection. After traveling alone through Mexico at 17, he crossed into the United States and was apprehended by the Border Patrol and transferred into the custody of the Office of Refugee Resettlement. After turning 18, he was released and began fighting his asylum case.
But this past June, a few months before Wilmer’s final hearing, then–Attorney General Jeff Sessions personally intervened in the case of a Salvadoran woman, Ms. A.B.—who fled domestic violence in El Salvador and had been found to qualify for asylum by an appeals court earlier this year. In overturning that decision, Sessions issued sweeping language that judges could use to deny asylum to a broad swath of people coming to the United States for refuge. (Though Sessions has since left office, his rulings are still being used to deny asylum claims, and his replacement, acting Attorney General Matthew Whitaker, shows no sign of changing the administration’s course.) Since Sessions’s June ruling, judges have been leaning on the decision to deny claims to people fleeing both domestic violence and gang violence—people like Wilmer (not his real name—he requested we use a pseudonym, as his case in ongoing). He lost his asylum case this September and is now appealing.
Wilmer and Ms. A.B. are just two of the victims of an administration intent on keeping immigrants and asylum seekers out of the United States, an administration that has shown itself willing to bend to the point of breaking both national and international law. Trump even went so far as to issue a presidential proclamation in November (which has since been temporarily blocked by a federal judge), directing all asylum claims to be rejected if the person crosses the border outside of a port of entry—a move clearly targeting the caravans of Central Americans now heading north through Mexico. For those who are able to present an asylum claim at a port of entry—not a simple task, as border officers are turning people away and making them wait potentially months—they face an increasingly difficult and hostile asylum process.
Cases like Wilmer’s were never a shoo-in, but there is legal precedent for victims of gang violence to qualify for asylum. Under US law, asylum seekers can be afforded protection if they are members of a “particular social group” that faces persecution in their home country. Some Central Americans forced to flee their homes because of gang violence have been able to seek asylum under this rubric: those who dare defy gangs or resist recruitment into gangs that are the de facto state in some communities. Because of the power these gangs wield over some parts of Central America, the governments that should be protecting victims of gang violence have neither the ability nor the appetite to push back. The same is true for victims of domestic violence, like Ms. A.B., who are fleeing persecution at the hands of partners whom the state is unable or unwilling to prosecute. Sessions’s ruling on Ms. A.B.’s case, known as Matter of A-B-, however, targets both victims of domestic violence and people like Wilmer, who are fleeing what Sessions calls “private violence.” Specifically, in A-B-, Sessions overruled a previous 2014 case, Matter of A-R-C-G-, which granted asylum to a Guatemalan woman and established a groundbreaking precedent recognizing victims of domestic violence as qualifying for asylum.
In June, when Sessions first issued the A-B- decision, immigration advocates and legal experts warned that the ruling could have vast implications for US asylum law, especially for women. But because parts of Sessions’s decision were vague—and even “sloppy,” according to one attorney who didn’t want to be named—it wasn’t immediately clear how vast the ruling’s impact would be, and Matter of A-B- was temporarily overshadowed as an international firestorm erupted when the Trump administration began to forcibly separate children from their parents.
But five months later, immigration lawyers, judges, and advocates now say that Sessions’s ruling in the Matter of A-B- has quietly yet dramatically reshaped the US asylum landscape. In interviews with over a dozen immigration lawyers from coast to coast, The Nation found that the ruling has made asylum more restrictive at nearly every step of the process, reverberating from the US-Mexico border to detention centers and courtrooms across the country. Overall, in 2018, the grant rate for asylum cases dropped to 33 percent, its lowest rate in almost 20 years (the grant rate for Central American asylum seekers is even lower, with claims from Honduras, Guatemala, and El Salvador denied 80 percent of the time).
As Karen Musalo, the director of Center for Gender and Refugee Studies at University of California Hastings, sees it, Sessions’s ruling was intended to do nothing less than “preclude people from the right to apply for asylum.” Taken together with Trump’s recent “asylum ban,” Central Americans from the caravan face an almost impossible task in their search for refuge.
Raised by a grandmother who ran a small corner store in a violent, gang-controlled neighborhood of San Pedro Sula, Wilmer and his older sister became the targets of gang harassment when they were still young. Gang members bothered his sister frequently, grabbing her and calling her sexually demeaning names. Wilmer tried to stand up to the gang members, and, still an adolescent, started getting in fights. Having been raised in a Mormon and then an evangelical church, Wilmer would invoke God to condemn the gang members’ behavior. “That’s not how God wants you to treat women,” he told them.
By the time he was in his teens they were trying to recruit him, and he was doing all he could to avoid them. When he was 15, in 2015, he started dating one of his sister’s friends. She, too, was getting harassed by the MS-13 members. Once, they physically assaulted her, and implied that they wanted to rape her. As Wilmer tried to protect her, he was repeatedly beat up. And then, he doesn’t know exactly what provoked it—maybe she insulted them while resisting yet another instance of sexual harassment—in June of 2015, some of the same gang members who had been hounding Wilmer for years shot and killed his girlfriend. The next day they left a note at his grandmother’s house, telling him he was next. A few days later, he was gone, heading north to the United States.
Ms. A.B.—after fleeing her abusive husband in El Salvador who beat her, sexually assaulted her, and threatened her for over 15 years—was initially denied asylum in North Carolina by Immigration Judge V. Stuart Couch, a former prosecutor involved with the Guantánamo Bay military commissions. When her attorney appealed the denial, the Board of Immigration Appeals ruled that Judge Couch’s decision was “clearly erroneous,” and sent it back to him to grant her asylum. Instead, Couch—known for his summary denials of women fleeing domestic violence—refused to issue a new ruling, and, against protocol, tried to send it back again to the BIA. Deborah Anker, director of Harvard Immigration and Refugee Clinic, who has been studying and practicing US asylum law since it was established nearly 40 years ago, called Couch’s move “completely extraordinary.” A few months later, Sessions swooped in, and sided with Couch against the BIA. But his decision didn’t affect Ms. A.B. alone. In his lengthy ruling, Sessions opined about the “private,” rather than political, nature of domestic violence and how, in his view, the original intent of the 1951 Refugee Convention was not to protect women fleeing their husbands or people fleeing gang violence, and that these asylum applicants should, in general, be denied. Sessions distinguished between “prototypical” refugees fleeing government persecution and those fleeing “private criminal activity,” who, only in “exceptional circumstances,” could meet the established standards of asylum.
Though Sessions’s protracted musings—or dicta, the legal term—are not legally binding, judges have been reading Sessions’s ruling and “taking it as gospel,” as Karen Musalo put it. “Fairly and properly applied,” Musalo added, asylum law “should protect these claims.” But, post A-B-, that is in serious question.
The judge in Wilmer’s case specifically cited one of Sessions’s side-comments—urging judges to require more stringent proof that the home government was unable or unwilling to protect the claimant—as grounds for denying him asylum. As Wilmer’s attorney at Immigrant Defenders Law Center, Lisa Okamoto, explained, the judge ruled that “because my client never went to police to report death threats, he didn’t show enough to prove the government was unwilling or unable to protect him.” Okamoto sees the matter differently: “Children should not be required to report to the police,” she said. Indeed, the Honduran police are widely known to be ineffective and sometimes to work in concert with gangs. Raising the evidentiary burden to such a height for children speaks not only to the fact that Wilmer and similarly situated people are being denied asylum, but that judges are reading A-B- in a sweeping manner. And it’s not only judges who are being guided by Sessions’s decision.
After 22 years of abuse, Grace fled Guatemala to the United States to escape her partner and his gang-member sons. Both she and her children faced her partner’s abuse, undergoing beatings, sexual assaults, and death threats. At one point, he beat her pregnant daughter so badly she had a miscarriage. After Grace was evicted from her own home by her partner and his brother, who was a police officer, she faced continued threats after moving in with a neighbor—she feared she would find no safety elsewhere in Guatemala because of the reach of the gang ties of her abuser’s sons. And then, this summer, after making it to the United States—presenting what would seem a clear case of a woman in need of protection, fleeing a country with an extremely high rate of violence against women and impunity for such crimes—Grace failed her “Credible Fear Interview.”
The CFI—the first step for many in the asylum process—is not meant to weigh the entire asylum claim, but merely assess whether someone may be eligible for asylum. When asylum seekers show up at a port of entry, or turn themselves in after crossing the border, and express fear of returning to their home country, they should be given a CFI. (Though entering the United States outside a point of entry for the first time is a misdemeanor, the law is clear that any asylum seeker, regardless of how they cross the border, must be given a CFI and be processed through the asylum system.) If they pass—if their fear is deemed credible—they are taken out of expedited-removal proceedings and can state their claim before an asylum judge. But shortly after Sessions’s A-B- decision and the related Customs and Immigration Services (USCIS) memo—which extrapolated Sessions’s ruling to asylum officers—attorneys along the border saw the grant rate of CFIs plummet. After Grace and others failed their CFIs, the ACLU filed a lawsuit, Grace v. Sessions, alleging that Grace, 11 fellow plaintiffs, and “thousands of other immigrants like them desperately seeking safety will be unlawfully deported to places where they fear they will be raped, kidnapped, beaten, and killed.”
Jenny Chang Newell, managing attorney of ACLU’s Immigrant’s Rights Project, and one of the attorneys litigating the Grace v. Sessions case, saw the USCIS memo as “trying to send a message [to asylum seekers] that their claims will be denied.” According to Heather Axford, of Central American Legal Assistance (CALA), the policy memo “targets asylum seekers at their most vulnerable”—at the border, where they typically don’t have representation. Celso Perez, also of ACLU’s Immigrant’s Rights Project, explained that the move put the burden on asylum seekers to articulate their own “particular social group,” that intricate legal definition that even attorneys can struggle to pinpoint.
In a declaration included in the Grace v. Sessions case, Allegra Love, executive director of Santa Fe Dreamers Project, notes that prior to the A-B- ruling, one population her organization assists (men at New Mexico’s Cibola detention center who have fled gang violence) passed CFIs about 80 percent of the time. After the case, that rate has plummeted, according to Love, to a mere 5 or 10 percent.
Whitney Drake, a lawyer with American Gateways working at the Hutto Detention Center in Texas, says she and her colleagues are seeing a similar pattern: two to four times the number of denials of credible fear interviews. As an example, Drake cites the case of a Salvadoran woman who had experienced brutal domestic violence—beatings, burnings, rape, and murder threats—at the hands of her husband who held political office. The woman failed her initial CFI, as well as her review hearing before an immigration judge. A redacted copy of her CFI document, reviewed by The Nation, shows that USCIS rejected her, in part, because she had not established the significant possibility that the harm she feared “would be inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or another person acting in an official capacity”—despite the fact that her abusive husband held political office. She ultimately won a request for re-interview, but now faces an uphill battle in immigration court.
Drake says women detained at Hutto have told her that immigration judges have begun telling women at review hearings that their cases no longer qualify. “What women have told us [they are hearing]: ‘Your case doesn’t count anymore…domestic violence doesn’t qualify anymore,’” she said.
Though it may be hard to grasp how Sessions’s ruling on a domestic violence case could affect Wilmer, a Honduran man fleeing gang violence, it’s important to note that the Executive Branch maintains tight control over immigration judges, who are technically attorneys of the Department of Justice. This year, Sessions imposed hearing quotas for judges, forcing judges to cut corners as they race through cases, and also made it hard for them to issue continuances—extensions that allow asylum seekers and their attorneys to gather further evidence or better prepare their case. As attorney general, he aggressively certified immigration cases to himself, guiding how judges should rule. By taking on these cases—basically reviewing and rewriting them to establish new precedent—Sessions is changing the fate of potentially hundreds of thousands of immigrants.
Sessions’s decision in A-B- effectively amplifies a message that Judge Couch, the original judge in that case, had been hammering out in his court for years—that women fleeing domestic violence do not merit asylum protection. According to attorney Philip Schrag, writing in The Seattle Times, “Our attorney general’s view of the law, apparently, is that domestic violence is a purely private affair, unrelated to social norms or patterns in countries in which such violence is endemic.” Anwen Hughes, deputy legal director of Human Rights First in New York, called Sessions’s view “ahistorical”—and that the particular social-group category for asylum was specifically meant to include people persecuted by non-government actors, such as abusive husbands or gangs.
Jane Freedman, in her book Gendering the International Asylum and Refugee Debate, writes that “gendered understandings of the political sphere as more ‘masculine’ and the private or home sphere as more ‘feminine’ have led to women’s persecutions being rendered invisible or irrelevant under international and national laws.”
Immigration Judge Dana Marks, speaking to us in her capacity as the president emeritus of the National Association of Immigration Judges, said that the view that domestic violence “is not persecution is a way oversimplification.” After being able to point to established case law, Matter of A-R-C-G-, for the past four years, women seeking protection from domestic violence, and the attorneys and advocates supporting them, now face a steeper climb.
Some judges are now interpreting A-B- as “an across-the-board rule denying asylum to anyone who has a gender-based claim or a gang-based claim,” says Denise Gilman, the director of the immigration-law clinic at the University of Texas. The result is that few asylum seekers with domestic- or gang violence–based claims will ever get a fair opportunity to present their cases. “You’re definitely seeing a lot of pressure from immigration judges and government attorneys to essentially terminate these cases before they are even heard, to refuse to give asylum applicants a full day in court if they are at all impacted by Sessions decision,” Gilman said.
Most of the reporting on Matter of A-B- centers on its impact on adult asylum seekers. But lawyers and advocates say children’s cases—many of these kids are escaping incest or sexual abuse—have also been “devastated” by Sessions’s ruling.
“When you start unpeeling the layers of why these children have come to the United States, the basis of these legal arguments is that these were kids who were not in safe homes,” said Anne Chandler, director of the Houston office of the Tahirih Justice Center, which offers legal services to immigrant women and children. She explains that Tahirih’s cases have included teenagers who fled after being raped and impregnated by their fathers, or girls who were kidnapped and trafficked by gangs. “That type of interpersonal sexual violence is at the heart of [Sessions’s] attack,” she said.
According to Meeth Soni, an attorney at Immigrant Defenders Law Center, prior to A-B-, it was “very, very routine for children in sexual-abuse cases to be granted at asylum office,” but now they’re being denied and have to retry their cases before an immigration judge, which drags out the case and can retraumatize the children.
Lawyers also say that in the wake of Sessions’s decision, they’ve seen an increasing number of credible fear or asylum claims denied, even for clients whose cases have nothing to do with domestic or gang-based violence. “We are seeing a significant number of other types of cases that don’t fit that fact pattern, but appear to be affected by A-B-,” said Whitney Drake. She cited the cases of two women whose asylum claims were initially denied: a lesbian who fled persecution on account of her sexual orientation in Honduras, and a woman who escaped religious persecution by government actors in Cameroon. “There are some cases that have been denied that we are just scratching our heads because they are textbook asylum cases,” said Drake.
Sessions’s long-winded ruling, as Archi Pyati at Tahirih put it, is “actually quite weak in legal terms, and does not accomplish all that may have been intended.” That’s to say, A-B-, if read narrowly, should only be influencing judges’ decisions on similar cases of domestic violence. What Sessions’s ruling accomplished, however, was giving conservative judges, like Couch, further justification to deny any and all Central Americans’ claims. A future attorney general—whether a Democrat or someone simply more sympathetic to asylum seekers—could potentially overturn Sessions’s ruling by establishing a new precedent, but doing so would also risk further politicizing the immigration courts, which are ostensibly set up to be neutral arbiters of claims.
The ultimate impact of A-B- is still being felt, but as multiple caravans make their way to the US border, and as the Trump administration continues to diversify and escalate its attacks against immigrants—often targeting, specifically, asylum seekers—attorneys expect to see more and more people denied protection.
After Wilmer left Honduras, the gangs began targeting his grandmother. They extorted her corner store and threatened her so often that she had to close down. “The gang has a slogan,” Wilmer told us: “The gang doesn’t forget.” If he loses his appeal, and the BIA upholds the judge’s reading of Sessions’s A-B- decision, Wilmer is scared the gang members will find him. If they do, he said, it was simple—“They’d kill me.”