Congress should step in to protect domestic violence victims

On June 11 the Attorney General unilaterally decided to overturn years of judicial precedent and limit protection for victims of domestic violence seeking safety in the United States.

While the Attorney General could not change the statute, he chose to re-interpret it in such a way that it will be extremely difficult for domestic violence victims to receive protection from their abusers.

{mosads}Even though the Attorney General’s decision is blatantly wrong on both the law and the facts as briefly discussed below, his decision has begun to have a very real impact on the lives of the women we work with at the Migrant Center for Human Rights.

Just last week an Immigration Judge at the South Texas Detention Complex told a young woman that she must stay in detention to fight her asylum case because domestic violence was no longer a ground for asylum — on which basis she had previously passed an initial screening interview showing she has a significant possibility of winning protection.

And this woman was one of the lucky ones — she had passed her initial screening interview before the Attorney General’s decision and has the right to present her case to the Immigration Judge.

After the Attorney General’s decision, we have become aware of two mothers — separated from their children and federally prosecuted for entering the country to seek asylum without documents — who were denied asylum at their initial screening interview, effectively prohibiting them from being able to present complete legal and factual arguments to an Immigration Judge.

Among many other reasons, the Attorney General’s decision in Matter of A-B- was fundamentally flawed because it assumes that domestic violence is a personal problem and not a result of societal norms that, in certain countries, place women on a low rung in society’s hierarchy, thereby permitting and encouraging their mistreatment.

In certifying the case to himself the Attorney General asked, “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.”

This question is irrelevant. For asylum law it doesn’t matter who causes the harm — it matters why the harm was caused, and whether the person can get protection in their home country.

To qualify for asylum in the United States a victim of domestic violence often must show that she is a member of what’s known as a Particular Social Group, which is widely considered a group that can be clearly defined (particularity), recognized as a distinct group within the society in question (social distinction), and which the asylum seeker cannot leave or should not be required to leave because membership is fundamental to her identity (immutability).

In Matter of A-B-, the case of a woman who was a member of the group ‘‘El Salvadoran women who are unable to leave their domestic relationship where they have children in common,”  the Attorney General overturned Matter of A-R-C-G-, the seminal case that stated that ‘‘married women in Guatemala who are unable to leave their relationship’’ are part of a subset of Guatemalans who may face harm because of their domestic relationship.

Unfortunately, based on hundreds of interviews I’ve had with women fleeing violence in Central America and Mexico, it is abundantly clear that entrenched cultural norms in these societies devalue women and, more specifically, view and treat women in relationships as the property of their male counterparts.

Where the woman is then severely mistreated because of her membership in a Particular Social Group related to these cultural norms (which may include groups beyond those litigated in Matter of A-B- and Matter of A-R-C-G-), and is unable to obtain protection in her home country, she meets the requirements for protection in the United States.

It is inconceivable that in any other context, we would accept as a nation that individuals viewed and treated as slaves, would be turned away from our shores. Congress has an opportunity to make clear to the world that we will always provide safe haven for women who are beaten, raped, and tortured by men who view them as their property because of their domestic relationship.

Congress has the power to pass legislation clarifying that domestic violence is still a ground for asylum. This has been done before. When the Board of Immigration Appeals refused to grant protection to victims of China’s one-child policy Congress stepped in to clearly state that victims of forced abortion and forced sterilization could receive asylum in the United States.

It is incumbent on Congress to take action to ensure that domestic violence victims do not get deported back into the hands of their abusers. Leaving these cases up to the Executive is too dangerous.

Not only do judges at the Department of Justice — which controls the Immigration Courts and Board of Immigration Appeals — feel that their hands are tied by the Attorney General’s decision, but Asylum Officers at U.S. Citizenship and Immigration Services have been directed to not grant domestic violence cases similar to Matter of A-R-C-G- (and appear in practice to be denying all domestic violence cases).

The serious and immediate harm facing victims of domestic violence across the country makes it imperative that Congress not delay in protecting women.

Sara Ramey is an immigration attorney and the executive director at the Migrant Center for Human Rights in San Antonio, Texas. The views in this article are not intended to reflect the official position of the organization.