The US Can Again Grant Asylum To Domestic Violence Survivors After The Attorney General Tossed Out A Trump Administration Decision

“The vacating of these decisions allows these cases to be treated like any other — fairly and without bias or prejudgment."

Two young children holding hands with adults walk past border authorities

The Justice Department on Wednesday threw out a decision by former attorney general Jeff Sessions that made it virtually impossible for immigrants to win asylum because they were fleeing domestic violence in their home countries.

The decision was celebrated by immigrant advocates and attorneys across the US, who had often lamented the extremely limited access to asylum that Sessions had instituted through the case.

In order to win asylum, immigrants have to prove they've suffered or fear suffering persecution based on their race, religion, nationality, political opinion, or membership in a particular social group. In the case called Matter of A-B-, Sessions overruled a previous court decision that recognized a certain category of domestic violence survivors as eligible for asylum based on their membership in a particular social group. In the previous case, the social group was defined as married women in Guatemala who are unable to leave their relationships.

Matter of A-B- centered around an asylum-seeker who claimed persecution based on her membership in a similar social group, El Salvadoran women who are unable to leave domestic relationships in which they have children in common with an abusive partner.

Sessions had blocked AB's access to asylum on that claim and, with it, that of nearly all survivors seeking to flee domestic violence. Wednesday's decision by Attorney General Merrick Garland doesn't set new asylum standards but rather vacates Sessions's decision in favor of establishing future regulations that would address who should be considered a member of a particular social group. The Biden administration is expected to publish regulations or rules on asylum in the fall.

“I have concluded that the issues should instead be left to the forthcoming rulemaking, where they can be resolved with the benefit of a full record and public comment,” Garland said in his decision.

Garland also vacated a decision in another case relating to asylum and social groups known as Matter of L-E-A-. In that case, a Mexican man requested asylum after cartel La Familia Michoacana targeted him in retaliation for his father refusing to allow it to sell drugs in his store.

Garland vacated the decision of former attorney general William Barr, who reversed a Board of Immigration Appeals ruling in a case in which it found that members of an immediate family may constitute a particular social group under asylum law.

Karen Musalo, a professor at the University of California Hastings College of the Law, said the two vacated decisions were a welcome step toward reversing the biased decision-making of the Trump administration. The administration tried to close the door on asylum claims involving domestic violence and fear of gangs, in addition to precluding claims based on persecution due to family membership, she said.

“The vacating of these decisions allows these cases to be treated like any other — fairly and without bias or prejudgment,” Musalo said.

Some immigration judges also hailed the move to vacate Matter of A-B-.

"An important step to correct a clearly flawed interpretation of our asylum law," one immigration judge, who spoke on the condition of anonymity, told BuzzFeed News. "This is a big step towards ending the confusion created by a very ill-conceived legal precedent."

In a memo, Associate Attorney General Vanita Gupta said Congress has authorized grants of asylum to those who, among other things, can show they are fleeing persecution on account of being a member of a particular social group.

"These decisions involve important questions about the meaning of our Nation’s asylum laws, which reflect America’s commitment to providing refuge to some of the world’s most vulnerable people," Gupta wrote.

Gene Hamilton, who served as counselor to the Attorney General under the Trump administration, said Merrick's decisions would lead to tens of thousands of meritless asylum claims. Hamilton is now vice president and general counsel for American First Legal, a nonprofit led by former President Trump's senior advisor Stephen Miller.

"The Biden Administration will deport roughly zero percent of those who do not qualify for asylum, these new meritless cases will lead to delayed relief for legitimate asylees, and these radical decisions will ensure open borders for as long as they remain in effect," said Hamilton in a statement.

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