Lawyers for a Salvadoran woman at the center of a controversial ruling on asylum by Attorney General Jeff Sessions say they are looking to challenge the decision that could prevent tens of thousands of immigrants from being granted asylum.

In a sweeping opinion that has touched off an outcry among immigration rights advocates, Sessions on Monday reversed a 2016 grant of asylum to the woman who had been abused by her husband, ruling that victims of domestic violence are not generally eligible for asylum under U.S. immigration law.

While the decision applies to all seeking asylum on grounds of domestic and gang violence, applicants from Mexico and the Central American nations of El Salvador, Guatemala and Honduras, could be hit especially hard, advocates say. The four countries accounted for 35 percent of asylum claims filed with U.S. Citizenship and Immigration Services in March. 

Though Sessions directed his ruling at immigration judges, its effect could be felt beyond the court system, said Blaine Bookey, a co-legal director at the Center for Gender & Refugee Studies at the University of California Hastings College of the Law, which is representing the Salvadoran woman. 

“The attorney general’s decision applies to all adjudicators, including the appellate body, the immigration courts, as well as the Asylum Office, even down to the border officers who are doing the initial threshold screenings of individuals,” Bookey said. 

A recent uptick in the rejection rate of asylum cases could accelerate, she said. “This decision only provides further support to officers who would not want to recognize certain claims.”

But she said the attorney general’s decision in the case is not necessarily the final word. 

Appeal for A.B.

The Salvadoran woman, known by her initials A.B., can still pursue one of three forms of fear-based relief in the U.S., including asylum, withholding from deportation and seeking protection under the Convention Against Torture, she said. 

The center is also examining other options to challenge Sessions’ ruling, including through the litigation of other individual asylum claims that may be negatively impacted by the decision, Bookey said.

“It is possible Ms. A.B.’s case cannot be directly appealed to (the Court of Appeals for) the Fourth Circuit now and could be challenged through other cases impacted by the (Attorney General’s) decision,” she said.

Omar Jadwat, director of the immigration rights project at the American Civil Liberties Union, said the ACLU “stands ready” to support Bookey’s group and others taking issue with the attorney general’s decision.

Jadwat said the organizations are considering “various routes” to a legal challenge.

A Justice Department spokesman declined to comment.

Key issue

The Salvadoran woman first applied for asylum in 2014, claiming that she had been beaten and raped by her husband for nearly 15 years.

An immigration judge rejected her claim, prompting her lawyers to take it to the Board of Immigration Appeals. 

The board ruled in her favor in 2016, citing a precedent set in an earlier case recognizing domestic violence as a basis for asylum. 

In his decision, Sessions said the immigration board had been wrong to recognize victims of domestic violence as members of a “particular social group,” a requirement for asylum. 

“The mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” Sessions wrote. 

“When, as here, the alleged persecutor is someone unaffiliated with the government, the applicant must show that flight from her country is necessary because her home government is unwilling or unable to protect her,” Sessions wrote.

In reversing the A.B. decision, the attorney general said that he was restoring “sound principles of asylum and long-standing principles of immigration law.” 

No national fix

The case back was sent back to the same North Carolina immigration judge who had originally rejected A.B.’s initial asylum claim.

The judge, V. Stuart Couch, is widely expected to dismiss her case again, which could lead her lawyers to appeal to the immigration board and possibly to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va.

Lindsay Harris, a law professor at the University of the District of Columbia and vice chair of the American Immigration Lawyers’ Association’s National Asylum and Refugee Liaison Committee, said she expects the appeals court to reverse the decision, given its “friendly” attitude toward similar cases. 

However, a favorable ruling by the court would apply only in its jurisdiction and leave the precedent set by Sessions in force in other parts of the country, she said. 

“We’ll need to overturn it one by one throughout the country in other jurisdictions,” Harris said.
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