Asylum Law Is Not Intended for Domestic Violence

By Dan Cadman on April 20, 2018

Julia Preston has written an inflammatory article for Politico: "Trump Administration Wants to Shut Door on Abused Women: To cut back on immigration, Sessions wants to remove domestic abuse as a legal justification for seeking asylum."

Preston's earlier immigration writing for the New York Times is the stuff of notoriety here at the Center for Immigration Studies, because they have always carried a bias in favor of aliens and against anyone or anything that smacks of enforcement or regulation or control, and indifference to our own native-born deprived or unemployed. (See here and here for examples). It is clear that she is carrying on in the same vein at Politico.

The basis for Preston's remarkable assertion about "shutting the door on abused women" is that Attorney General Jeff Sessions, exercising his prerogative as head of the Executive Office for Immigration Review, which houses the immigration courts and their appellate tribunal, the Board of Immigration Appeals, has certified to himself issues that touch on several areas relating to asylum, and its abuse. Sessions purpose in doing so is to provide guidance to the courts and the BIA as to what the parameters are for deciding claims of asylum.

One of the cases he has certified is the case on which Preston has focused, which involves a Honduran woman illegally in the U.S. who asserted that her husband routinely beat her, for which claim she was granted asylum by an immigration judge.

I want to make clear that I have no tolerance – zero, none – for domestic violence and the abusers who perpetrate violence, something I've made clear again and again in my writings for the Center (see, e.g., here, here, and here). In fact, one of the things I've derided is the propensity in certain "immigrant friendly" jurisdictions for prosecutors and judges to go easy on alien offenders, presumably because of the odd perception that they are only following their cultural norms, or some other such nonsense. (This problem could well get worse in the wake of the recent Supreme Court ruling, as my colleague Andrew Arthur has pointed out.)

But mechanisms to provide various forms of relief for alien victims of domestic abuse – and to effect the deportation of alien abusers – already exist in the law, and asylum seems to me an inappropriate form of relief for that purpose. Presumably, the basis for the claim is that the victims constitute "members of particular social group", which forms one of the defined grounds on which asylum may be based but something which has never been defined in the law. (For a more complete understanding of asylum and its misuse, see my March 2014 CIS Backgrounder "Asylum in the United States: How a finely tuned system of checks and balances has been effectively dismantled".)

It is one of the peculiarities of our system of law that when something prescribes a punishment (such as removal) for a section of law that is found to be "unconstitutionally vague", the punishment is tossed – such as happened within the last few days when the Supreme Court decided that the phrase "crime of violence" was too vague to be permitted to use in removing alien aggravated felons.

But when something provides a benefit (such as asylum) for vague phrases such as "particular social group", there appears to be no effective way to curb its ever-widening expansion, like circles after a rock has been thrown into a pond, except through the kind of direct action that Sessions is taking now in examining the case of the Honduran woman.

And it is noteworthy that Sessions has not focused solely on the problems inherent in expanding the notion of membership in a particular social group beyond all reason, although that clearly concerns him; he is also examining the issue of "credible fear" as it relates to asylum, and the question of how many continuances are reasonable in the context of immigration court proceedings, given the astounding backlog of hundreds of thousands of cases awaiting hearings before an immigration judge. Thus, it is clear that Sessions has not singled out "domestic violence" as some kind of signifier of a latent hostility to women, as Preston might have one believe. He is, instead, focused on the totality of a system tottering on the brink of collapse because of the combination of inefficiencies and abuses that manifest themselves at every turn.

The problem with domestic violence as a predicate for the grant of asylum is that, while superficially persuasive, it opens the door to granting asylum for all victims of criminal violence in foreign countries. Should someone who has been the victim of domestic violence be granted asylum, but someone who has survived an attempted murder be denied? Where does such a spectrum end?

It was never contemplated by the drafters or signatories to the international convention on the granting of refuge or asylum that victims of criminal offenses would be entitled to seek asylum. Were that the case, the dispossessed of the entire world would be beating a path to the doors of every developed country. (In truth, for all practical purposes they are, and it seems evident that Sessions wants to ensure that grants of asylum and refuge remain the extraordinary kind of relief that they were intended to be, rather than loopholes that a tractor trailer can fit through.)

Refuge and asylum have always been held to be extraordinary forms of relief from applying the usual rules relating to immigration to those meriting protection. The intent to exclude victims of everyday crime (as opposed to political crimes, crimes against humanity, war crimes, and genocide), no matter how individually tragic, from the protections of refuge or asylum is abundantly clear from the Travaux Preparatoires, the equivalent of the legislative history of the multi-national convention of ministers who attended the meetings that resulted in the 1951 Refugee Convention.

One final, ironic note: out of curiosity I did a cursory search of relative domestic violence rates among countries and regions of the globe. The United Nations' World Health Organization estimates the percentage rates at about 23.2 percent for the higher-income regions of the United States and Canada, which, to our shame, isn't really much better than the remainder of the western hemisphere, where the abuse rate hovers at 29.8 percent. So what exactly are we protecting women from? They may escape their particular abuser by fleeing to the United States but, given those statistical realities, what assurance is there that they won't fall into another abusive relationship?

For better or worse, this isn't what asylum was ever intended to shield anyone from.

Topics: Asylum