After a judge struck down the Trump administration's attempt to categorically deny asylum to people fleeing domestic violence and gang violence, administration officials acquiesced and sent out new guidance to asylum officers and immigration judges. Internal emails, obtained by an advocacy group, now provide a window into how, at the conclusion of a months-long legal struggle, the government was forced to concede that people fleeing domestic violence and gang brutality could have a valid asylum claim—and must have their asylum cases considered on an individual basis.
The emails, sent from the head of the government's asylum division and the country's chief immigration judge respectively, also reveal the central question of the complicated legal battle: In asylum claims, is something like domestic abuse a form of "private violence," or evidence of societal persecution?
In June of 2018, then-Attorney General Jeff Sessions announced that the government would no longer accept asylum claims from people fleeing domestic violence or the threat of gangs. In public, Sessions argued that asylum was never meant to protect people from all forms of suffering. Instead, Sessions said, asylum status exists for people who are persecuted because they belong to certain social groups (such as a particular race or religion). In the attorney general's words, domestic abuse and gang brutality were forms of "private violence," not societal persecution.
But a variety of advocates and experts in refugee issues immediately countered that logic.
"What this decision does is yank us all back to the Dark Ages of human rights and women's human rights and the conceptualization of it," Karen Musalo told the New York Times when Sessions announced the new policy.
The organization Musalo directs, the Center for Gender and Refugee Studies at the University of California's Hastings College of the Law (CGRS), joined with the American Civil Liberties Union to sue the Trump administration over the new asylum restrictions. At the center of their case was the argument that victims of something like domestic violence may well be victims of a broader form of societal persecution. As Pacific Standard reported in November:
Drawing on many years of research, experts at CGRS argue that calling domestic abuse "private violence" obscures the reality that, in many countries, individual instances of abuse are part of a broader wave of violence against women. In other words, asylum seekers aren't just fleeing domestic abuse—they're fleeing gender-based violence.
"It's not hard to allege the existence of gender-based violence, especially when you're talking about countries [like El Salvador, Honduras, or Guatemala]," says Anne Dutton, an attorney and fellow at UC Hastings. "It's very clearly documented and there's wide research and reporting on the prevalence of violence against women."
Experts at the CGRS and ACLU argued that asylum cases need to be considered on a case-by-case basis, to determine if domestic abuse or gang brutality could be symptoms of something like gender-based violence.
In December, a federal judge sided with the two organizations. "There is no legal basis for an effective categorical ban on domestic violence and gang-related claims," Judge Emmet Sullivan wrote in his decision for the United States District Court for the District of Columbia, ruling that the administration's policy was arbitrary and capricious.
Two days after Sullivan released his decision, John L. Lafferty, the head of the asylum division for U.S. Citizenship and Immigration Services, sent an email to the officers in charge of processing asylum claims. In the email, one of several provided to the CGRS by the Department of Justice and obtained by Pacific Standard, Lafferty advised all officers that "there is no general rule against claims involving domestic violence and gang-related violence as a basis for membership in a particular social group. Each claim must be evaluated on its own merits."
Lafferty's email made it clear that people fleeing domestic violence and gang brutality could be defined as a social group beyond their shared experience of suffering. In practice, this means that asylum officers now have to consider that victims of domestic abuse may also be victims of gender-based violence or another form of persecution based on social group.
The same day Lafferty sent out his email, MaryBeth Keller, the U.S.'s chief immigration judge, sent an email to the nation's immigration judges. Keller advised that all judges should consider asylum cases with a de novo standard—in other words, on a case-by-case basis.
Both Keller and Lafferty's emails also explained that asylum seekers do not have to prove that their governments either condoned or were helpless to stop their abuse at the hands of domestic partners or gangs. Instead, asylum seekers simply need to prove that their governments were "unwilling or unable" to prevent their persecution.