Just a few weeks ago, on June 11, Attorney General Jeff Sessions released Matter of A-B, an opinion that dramatically curtails asylum protections for survivors of domestic violence, and for many other people who have been persecuted by non-state actors. Matter of A-B has been described, and for good reason, as ushering a return to the dark ages of U.S. asylum law, especially for gender asylum advocacy.
However, of the many concerns that have been raised about Matter of A-B, there has been no mention made of the ambiguous position it has taken on family membership as a protected ground, and how this protected ground applies to the kinds of asylum claims it is seeking to restrict. This issue is important because the opinion begins by defining domestic and gang violence survivors as victims of “private crime,” and then goes on to deliberate on whether U.S. asylum law was intended to provide remedies for this kind of victimization. But it so happens that persecution due to family membership is one of the chief ways that the U.S. courts have distinguished some experiences of domestic and gang violence from the kind of victimization that Matter of A-B describes as “private crime.” A brief issued by the Department of Homeland Security has summed up the distinction this way: “A useful guide … can be to examine the difference between targeting an individual for revenge for something the individual actually did, on the one hand, and targeting an individual because of that individual’s family-based status ...” (p.16).
Put another way, if the individual is attacked because of “what they are” (or are perceived to be), the victimization has crossed the threshold from private crime to a violation of human dignity which can, potentially, be remedied by asylum law. This is especially important regarding the possibilities for recognizing asylum for people claiming asylum on the basis of queer identity. Matter of A-B, however, does not offer a comprehensive argument for why a person victimized by private crime could not also have been persecuted because of “what they are.” And more specifically, it hasn’t explained why these victims would be ineligible to use family membership to explain the motives of their persecutors. On top of this, Matter of A-B actually starts off by listing kinship ties as a possible grounds for seeking asylum, in its discussion of one of the earliest precedent decisions issued by the Board of Immigration Appeals (BIA).
In its more recent precedent decisions, the BIA has underscored the validity of family membership as a way of defining the protected ground for asylum cases. In these decisions, it has used cases involving female genital mutilation to illustrate how a protected ground can be defined by kinship ties. These are cases in which gendered understandings of family roles define the context in which immediate or extended family members coerce their younger female relatives to undergo unwanted ritualistic cutting. Although it’s not exactly the same kind of persecution, it’s not difficult to see how domestic violence can also be enabled by gendered understandings of family roles that provide social justification for the victimization of one family member by another. So how is it possible for Matter of A-B to single out domestic violence as an example of “private crime” that shouldn’t qualify for asylum, while at the same time, aligning itself with a jurisprudence on kinship ties as a basis for persecution, which has been used to protect victims of FGM?
One way it attempts to resolve this conundrum is by making a distinction between a protected ground defined by immediate versus nuclear family relations. It so happens that definitions of the protected ground based on nuclear family ties have figured prominently in asylum jurisprudence on domestic violence. Matter of A-B also vacated a BIA precedent decision on a domestic violence case which used nuclear family ties to define the protected ground.
However, the argument against nuclear family ties in Matter of A-B is not developed beyond a brief footnote. So it is not clear at this time how it will be reconciled to BIA jurisprudence (which has not addressed the relative merits of nuclear versus immediate family membership) or circuit court opinion which has held up the nuclear family as a commonsense example of a protected ground.
Plus, even if the AG prevails in his argument against nuclear family ties it still does not apply to all victims of private crime, as this category has been defined by Matter of A-B. For example, when victims of gang violence claim they have been persecuted because of their family membership, the protected ground is typically defined by their immediate family relations.
These are undoubtedly dark times for asylum rights advocacy. But the durability of the legal precedent established by Matter of A-B is not just guaranteed by the administrative authority of the AG; it also hinges on the viability of its arguments and the way they are interpreted by the courts and evaluated by subsequent administrations. Asylum rights advocates and legal practitioners have played an important role, over the past several weeks, in raising issues that the courts, and general public, should consider. The jurisprudence on persecution due to family membership should be a part of this discussion.
The article in this embedded link was released before the AG decided Matter of A-B, but it accurately forecasts the concerns that have been expressed since its issuance.
2 The DHS and federal appellate courts have developed criteria for evaluating the veracity of these kinds of claims in which the victimization involves “mixed motives.”
3 Matter of A-B, p.318, citing Matter of Acosta, 19 Dec. 211 (BIA 1985). Matter of Acosta provides the first coherent guidance on defining particular group membership under U.S. asylum law. The particular social group is the protected ground, established by internationally-recognized refugee conventions, that can accommodate claims of persecution due to family membership.
4 Matter of A-B, p. 333. This argument against the immediate family as a protected ground rests on a dissenting opinion in a 9th circuit decision in which the majority ruled in favor of the protected ground. Thomas v. Gonzales, 409 F.3d 1177, 1192 (9th Cir. 2005). Moreover, although the Supreme Court subsequently overturned this decision (see Gonzales v. Thomas, 547 U.S. 183 ) it did so on the basis that the BIA had yet to clarify its position on family membership as a particular social group—which it has yet to do. However, the BIA’s subsequent decisions,clarifying its criteria for deciding particular group membership continue to use family membership as a touch stone example and make no mention of the validity of immediate family versus nuclear family ties.