The Trump Administration’s attempts to stop asylum seekers at the border are not only immoral, but flat out against the law. Pursuant to the 1980 Federal Act, and numerous international treaties that the United States is a party to, people have the right to apply for asylum the moment they enter the United States. It makes no difference whether that be at a port of entry, after a visa expires, or after someone entered without documents. Thus, the Trump Administration’s claims that asylum seekers must be punished--whether by indefinite detention or by tearing families apart--because they are “breaking the law” are flat out incorrect.
If your family member arrives at the border and asks the border patrol agent for asylum, they must be given a credible fear interview with an asylum officer. The administration has claimed that it is only punishing those who are apprehended near the border, and not those that seek asylum at the port of entry. However, news reports have indicated that asylum seekers are waiting days at ports of entry to ask for asylum, essentially forcing some folks to attempt to enter a different way. In any case, a migrant also has a right to seek asylum if they are apprehended near the border, and not at a port of entry.
Seeking asylum is not against the law. The government’s treatment of asylum seekers who are doing nothing wrong is unjust, immoral, and illegal.
Do not give up your asylum claim just because it is based on private violence or gangs.
Jeff Sessions’ decision in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) reversed an administrative precedential decision, Matter of A-R-C-G-, to hold that a victim of extreme domestic violence cannot receive asylum on that basis. The Attorney General found that this violence was not on account of a protected ground, an essential element of asylum. This is because, according to Attorney General, such victims are not seen as “distinct” in their community, and thus, are not members of a “particular social group,” which is a protected characteristic.
Beyond the discrete issue in the case, the Attorney General made the conclusory, broad, and legally incorrect, statement that victims of gangs and domestic violence will rarely qualify for asylum. He also made the incorrect statement that claims based on violence by private actors will not be viable unless the asylum applicant can prove that the government was completely helpless in providing protection. Luckily, these statements were “dicta,” which means that they are statements made in a legal decision that have no precedential power. In other words, these statements show the world as perhaps Jeff Sessions hopes it will be. It also shows that his understanding of asylum law is not very good. But hopefully his decision does not fundamentally change asylum law. Unfortunately, many media outlets misinterpreted the legal significance of these statements and incorrectly reported them as the end of asylum for all gang based and domestic claims, ignoring the underlying law and appeals process.
Sessions ignored the fact that current law requires that each asylum claim must be considered individually on a case by case basis. Sweeping generalizations like that of Sessions’-- stating that entire groups of claims will not be viable--flies in the face of asylum law. Beyond that, even in the domestic violence context, there are many potential protected grounds that may exist in any given case. For example, in a domestic violence case, often an attorney can find a familial connection as the reason for the violence, or can argue that the victim held a feminist political opinion. In gang cases, there are several potential protected grounds that are connected to the harm, such as a political opinion or being a part of a distinct group such as witnesses against members.
Ultimately, do not give up simply because of this very incorrect decision. This decision will be appealed. Until it is overturned, our office may be able to argue around it. Click the link below to schedule a consultation with one of the attorneys at ILOLA. You can also reach us any time at firstname.lastname@example.org or (800) 792-9889.