On December 19, 2018, Federal Judge Emmet Sullivan settled a case between the ACLU and the Trump administration concerning the eligibility criteria for asylum, ruling against the administration and in favor of the ACLU. In doing so, Sullivan struck down former Attorney General Jeff Sessions’ policies restricting access to asylum for victims of gang violence and domestic violence.
Sessions’ harsh policies had been based on a narrow interpretation of the definition of a refugee, which describes a refugee as a person facing “persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Victims of gang violence and domestic violence are not always targeted based on identity traits or political opinions per se, and Sessions had argued that people fleeing these forms of violence should not be viewed as members of a “particular social group” either. Sessions’ decision was almost certainly aimed at Central American migrants, who frequently report these forms of violence as factors that force them to leave their home countries.
The result was that migrants who legitimately feared for their lives could be denied asylum based on an ambiguous definition. Paradoxically, this definition — which was drafted after the Holocaust with the intention of protecting endangered people of all backgrounds — was exploited by Sessions as a legal pretext for the exclusion of Central American migrants in dire need of protection.
Sullivan’s recent decision, in which he denounced Sessions’ policies as “arbitrary and capricious and contrary to law,” constitutes a positive first step in countering abuses in the asylum system, but the significance of the ruling remains disputed. Some analysts believe that the ruling will not have far-reaching consequences for asylum-seekers since it may apply only to migrants’ initial interviews with asylum officers and not to the decisions that ultimately take place in immigration court. Beyond questions about the ruling’s significance, there is also the looming possibility that it could be overturned on appeal.
It seems clear that Sullivan’s ruling is not enough to prevent the ambiguous language in the definition of a refugee from being abused and weaponized in the future. When decisions about whether or not a person meets the definition of a refugee can mean life or death, it is unconscionable that we have tolerated ambiguity in this definition for so many years. Legislative action is urgently needed to reach a more permanent solution; the statutory definition must be revised to encompass people fleeing all forms of life-threatening violence.
The Current Definition
The distinctions between asylum-seekers and refugees are purely geographic. According to the U.S. Citizenship and Immigration Services, the term “asylum-seeker” refers to a person who applies for protection while in the United States or upon reaching a U.S. port of entry, while “refugee” refers to a person who obtains protection in the United States after applying for such protection from a foreign country. However, whether a person is seeking asylum or refugee status, they need to fit the definition of a refugee in order to qualify; that is, they must demonstrate “persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
The fact that the definition of a refugee does not clearly encompass victims of gang violence seems to be an unfortunate accident of history, rather than a deliberately exclusive choice of language.
“The asylum laws on the books are dated,” said Sarah Pierce, a policy analyst at the Migration Policy Institute, in an interview with the HPR. “They’re from 1980 and really they’re framed off of the 1951 Refugee Convention, which was envisioned in the wake of World War II when we had individuals who were … members of very particular social groups who were fleeing acts of violence perpetrated by governments. So at the time, the definition for refugee or asylee made a lot of sense.”
Today, however, “we’re living in an entirely different world,” said Pierce. She cited gender-based violence as a form of persecution that is extremely pervasive but is not clearly recognized in the definition of a refugee. Neither is gang violence.
Over the years, lawyers have used case law to “compensate” for the “outdated” nature of the statute, according to Pierce. She explained that case law has been used to “modernize the statute a little bit, understanding that it’s a living and breathing thing and allowing for it to develop as our world and our understanding of what’s going on develops.”
Pierce said that the “social group” clause of the definition of a refugee is the vaguest and most malleable, so this clause has been the focus of much of the case law. For example, Guatemalan women who are unable to leave abusive husbands have sometimes been classified as members of a “particular social group” in asylum cases. “Generally, if they were able to establish a particular social group and meet the requirements that had developed over time, individuals who were fleeing gang violence or domestic violence could potentially qualify under that,” she said.
Sessions’ Decision
The vague nature of the “social group” clause provided an opening for Sessions to limit eligibility for asylum.
In a decision known as Matter of A-B, Sessions declared: “The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim … An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior.” According to Sessions’ narrow interpretation of U.S. asylum law, the government of an asylum-seeker’s home country generally must play an active role in perpetrating violence in order for a person to qualify for asylum. Living in a country where the government has “problems effectively policing” violent behavior was, in Sessions’ view, typically not a legitimate reason for seeking asylum.
In his decision, Sessions also argued that “a particular social group must exist independently of the harm asserted in an application for asylum.” This distinction was presumably intended to prevent categories such as battered women and people fleeing gang violence from qualifying as members of a “particular social group,” since their abuse would be the defining feature of their “social group.”
It’s hard not to view Sessions’ declaration as intentionally targeting Central American asylum-seekers who are often trying to escape situations where the government has “difficulty controlling private behavior.” Sessions even explicitly stated that people seeking asylum due to gang violence and domestic violence “generally … will not qualify for asylum.”
Sessions’ interpretation of the definition of a refugee, and specifically the “social group” clause, seems grossly misaligned with international human rights law. The United Nations High Commissioner for Refugees reports that “the core principle [of refugee policy] is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom.” Sessions’ argument that only certain types of life-threatening violence should render a migrant eligible for asylum constitutes a blatant violation of the non-refoulement principle.
Sarang Sekhavat, the federal policy director at the Massachusetts Immigrant and Refugee Advocacy Coalition, wrote in an email to the HPR that he believes “it is absurd that so many women and children are being sent back into life-threatening situations due to political rather than humanitarian calculations.”
Matthew Soerens, the director of church mobilization for the United States at the NGO World Relief, expressed a similar belief in the immorality of Sessions’ decision in an interview with the HPR. To Soerens, it is deeply unjust that ambiguity in the definition of a refugee would prevent victims of certain forms of life-threatening violence from being eligible for asylum.
“If you’re fleeing violence, if you’re going to be killed if you return, whether that’s due to an abusive husband or to a gang-infested neighborhood, or to a community where the government is dictatorial and repressive, I don’t know that it matters who’s perpetrating the violence,” said Soerens. “I think from a moral perspective, we ought to encourage our government to provide protection to people who have a legitimate fear of being harmed.”
According to Soerens, Sessions’ decision demonstrates that the definition of a refugee is “vague enough that it could be interpreted in such a way to exclude people who I think do merit protection from the U.S. government.”
Still, both Soerens and Pierce suggested that the consequences of Sessions’ policy were not universal. “It wasn’t a guarantee that [victims of gang violence and domestic violence] would qualify under membership to a particular social group before Jeff Sessions ruled, and after his ruling, it’s not a guarantee that they won’t qualify,” said Pierce. “He just made it significantly more difficult for them to do so.”
Soerens noted, “It might be too soon to say what the long-term effects of that decision were, especially now that it’s been put on hold.”
Sullivan’s Ruling
Sullivan’s ruling reversed Sessions’ decision, but the significance of the reversal remains disputed.
Major news outlets seemed to tout the decision as a significant breakthrough for asylum-seekers. Jennifer Chang Newell of the ACLU called the ruling “a defeat for the Trump administration’s all-out assault on the rights of asylum seekers,” according to the Washington Post.
However, Pierce said that Sullivan’s ruling is not as consequential as it appears in the media.
She explained that the plaintiffs in the case were people who had been denied entry at the stage of their “credible fear” interviews — not at the stage of court hearings — and so “the scope of the decision cannot affect what’s going on in the immigration court.”
“There was tons of press about [the decision],” said Pierce, but “unfortunately it really just affected that initial credible fear interview, which most people were getting through anyway.”
Still, Pierce suggested that litigators might push for more far-reaching changes in the future when it comes to eligibility for asylum. “I think that knowing that this case had success at the credible fear stage, I’m sure that there are litigators out there who are searching for plaintiffs who were denied asylum based on Matter of A-B at the immigration court stage and trying to organize them together to create a lawsuit,” she said. “I completely believe that that is happening.”
Importantly, Sullivan’s ruling has yet to be appealed and could be reversed by a higher court. Soerens called Sullivan’s ruling a “preliminary decision,” explaining that he is “wary to get too excited” because he believes the case “could very likely get kicked up to a higher court.”
Toward a Comprehensive Definition
The chain of events from Sessions’ decision to Sullivan’s ruling suggests that the ambiguity inherent in the definition of a refugee profoundly undermines the integrity and humanity of our asylum system. Legislative action to change the definition of a refugee appears to be the only viable path to greater clarity and inclusion.
Instead of specifying particular categories of persecution, a more comprehensive definition could simply refer to people facing “persecution or life-threatening violence.”
Soerens noted that if the legal definition of a refugee were to be revised and clarified, the outcomes of asylum cases would become less dependent on the viewpoints of particular asylum officers and immigration judges. He acknowledged that some degree of subjectivity is nearly inevitable in immigration court — noting, for example, that judges in Atlanta tend to approve asylum cases at much lower rates than judges in New York, “even though they are adjudicating based on the same U.S. law” — but that clarity in the language would help level the playing field significantly.
“It would be really helpful if Congress would write a more specific statute and … not leave it up to the courts to determine what should happen in these cases,” said Soerens. He added, “It is inherently going to be somewhat subjective, but I think the ideal would be for Congress to give more specificity to the law itself.”
Notably, Sullivan wrote in his opinion: “It is the will of Congress — not the whims of the Executive — that determines the standard for expedited removal.” Yet the ongoing ambiguity in the definition of a refugee suggests that “the whims of the Executive” could strike again if the decision is overruled. Meanwhile, the discretion of individual officials is augmented by the vague wording of U.S. asylum law. A change in the statutory definition of a refugee is long overdue and is imperative if the “will of Congress” is to prove meaningful.
Image Credit: Unsplash/Wellington Rodrigues