The End of Asylum Protections for Domestic Violence Victims By Corinne Tagliarina
On June 11, 2018, the US Attorney General, Jeff Sessions published a decision that severely limited the ability to claim asylum by people fleeing domestic violence or gang-related violence. If you have never had to claim asylum, or you are not an expert in immigration law, that sentence might not make a lot of sense.
Claiming asylum is legally the act of fleeing your country and requesting safe haven in another country. The relevant pieces of international law are the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (which has been signed and ratified by the US and is part of our law).
The 1951 treaty was created by countries attempting to address the issue of refugees who had fled their homes in Europe as a result of the Second World War. It quickly became apparent that refugees were an ongoing problem within the international system, and the 1967 Protocol expanded the geographical and temporal limits set by the 1951 Convention. These treaties are meant to define who counts as a refugee and to identify the rights that refugees can claim, as well as standardizing and humanizing their treatment.
According to international law, a refugee is “an individual who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.”
Countries who are a party to the 1951 Convention and 1967 Protocol agree to have their domestic asylum laws comply with this definition and certain standards of treatment for refugees (as well as lower standards for migrants who do not qualify for refugee status). Individual countries are still responsible for enacting and enforcing their own asylum laws, which means that US law and US immigration courts determine whether someone qualifies as a refugee in the United States.
The United Nations High Commissioner for Refugees (UNHCR) is the body that safeguards the Refugee treaties and assists people seeking asylum, as well as countries dealing with an influx of asylum-seekers. The UNHCR has recommended that countries recognize women fleeing gender-based violence as members of “a particular social group” and grant them asylum. The United States, in a 2014 Board of Immigrations Appeals (BIA) case, found that women fleeing domestic violence should be recognized as refugees. However, BIA precedents can be overturned by federal courts, or the attorney general, which is what Sessions’s decision earlier this month did.
The 2014 BIA decision found that women fleeing domestic violence constitute a particular social group for several reasons. In countries with limited or highly stigmatized divorce, where the government does not recognize or prosecute domestic violence, women are essentially trapped in violent, and potentially deadly marraiges, which is why they qualify for asylum. Sessions decided that the failure of governments to recognize or prosecute domestic violence was a failure of policing, rather than a governmental inability or unwillingness to protect the victims of domestic violence.
Because of the many rights and protections that come with being recognized as a refugee, this decision will have profound consequences for many women who are in the process of seeking asylum in the US after fleeing gender-based violence.
Immigration attorneys have already indicated that they plan to challenge Sessions’ ruling in federal court, which may result in a return to the earlier precedent.
Corinne Tagliarina is Adjunct Professor of Government and Human Rights at Utica College