Lawyer: Jeff Sessions’ Attacks on Migrant Domestic Violence Survivors Drags U.S. Back to “Dark Ages”

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On Monday, Attorney General Jeff Sessions announced that domestic and gang-related violence will generally no longer be grounds for asylum, a far-reaching shift that could affect thousands of people, particularly women from Central America fleeing gender-based violence. This decision reverses the Board of Immigration Appeals’ grant of asylum to a Salvadoran domestic violence survivor known as A.B., who fled to the U.S. for her life after surviving 15 years of beatings, rape and death threats from her husband. In ruling against A.B., Sessions also overturned a groundbreaking precedent from 2014 in which the immigration appeals court affirmed that domestic violence survivors are deserving of protection. We speak with Karen Musalo, professor of law and the director of the Center for Gender and Refugee Studies at the University of California, Hastings College of the Law. She is of the attorneys representing Ms. A.B.

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Transcript
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We begin today’s show looking at the Trump administration’s ongoing crackdown against immigrants and asylum seekers. On Monday, Attorney General Jeff Sessions announced domestic and gang-related violence will generally no longer be grounds for asylum, a far-reaching shift that could affect thousands of people, particularly women from Central America fleeing gender-based violence.

On Monday, Sessions chose to reverse the Board of Immigration Appeals’ grant of asylum to a Salvadoran domestic violence survivor known as A.B., who fled to the U.S. for her life after surviving 15 years of beatings, rape and death threats from her husband. In ruling against A.B., Sessions also overturned a groundbreaking precedent from 2014 in which the immigration appeals court affirmed that domestic violence survivors are deserving of protection. In that precedent-setting case, the Board of Immigration Appeals granted asylum to a Guatemalan woman named Aminta Cifuentes, who had fled to the United States after being brutally abused by her husband for years—raped, beaten, kicked, burned with acid, and punched so hard in the stomach when she was 8 months pregnant that her child was born prematurely with bruises. As in the case of A.B., the police refused to intervene to stop the abuse Aminta Cifuentes was suffering. But on Monday, Attorney General Jeff Sessions ruled against A.B. and overturned the precedent that had granted Cifuentes asylum, ruling, quote, “claims by aliens pertaining to domestic violence or gang violence perpetrated by nongovernmental actors will not qualify for asylum.”

Immigration advocates and former immigration judges have denounced Sessions’ announcement. A group of 15 former immigration judges called Sessions’ move “an affront to the rule of law,” writing, quote, “For reasons understood only by himself, the attorney general today erased an important legal development that was universally agreed to be correct,” they wrote.

Well, for more, we’re joined now in Berkeley, California, by Karen Musalo, professor of law, the director of the Center for Gender and Refugee Studies at the University of California, Hastings College of Law. She is one of the attorneys representing Ms. A.B.

So, talk about Attorney General Jeff Sessions’ ruling on Monday and tell us the story of your client, A.B.

KAREN MUSALO: Thank you, Amy, for having me on this morning. I think it’s really important to look at this decision both for what it does and what it doesn’t do, and maybe just to say what it purports to do. So, the attorney general is trying to signal, in very strong terms, to decision-makers—immigration judges and asylum officers—that these types of claims don’t meet the legal requirements. And there’s no doubt that that is the intent behind this decision. And it’s very, very concerning for many reasons. But those of us who have really read the decision closely have reached the conclusion that he is stretching. So, although he, as you explained, reversed this 2014 precedent, A-R-C-G-, the case of Aminta Cifuentes, that established that domestic violence survivors could be granted asylum, he reversed that precedent, but there are—you know, there are 38 years of development of the legal definition of refugee in—refugees in U.S. law, and, actually, under a fair application of the standard, these individuals do qualify for asylum.

And the reason that I start my remarks with that is that there are many people who are just going to be bullied by Sessions, and Sessions says these are no longer legitimate cases. And as lawyers, we know a couple of things, and one thing is that every case is decided by a fair application of the law to the facts of that case. We don’t rule by fiat. Sessions is not a king. He’s appointed himself in this posture to decide this particular case and set this precedent, but it is up to decision-makers—immigration judges, asylum officers, the Board of Immigration Appeals—to look at each case on the facts of that case. And we could go into it more, but there are many reasons why these cases will qualify for asylum under a fair application of the law to the facts.

AMY GOODMAN: And talk about your client, A.B. Tell us her life story.

KAREN MUSALO: So, as you recounted, she was brutalized for more than 15 years by a man who she met, married, had three children with. And almost immediately after the marriage, he began to abuse her in horrific ways, by bashing her head into the wall, threatening her with guns and knives, beating her, raping her, threatening to hang her by a rope from the ceiling when she was pregnant, waking her up in the middle of the night. He would come home and just wake her up and call her a slut or a whore and other degrading, insulting terms, misogynist terms, tell her to get out of bed and cook for him. And finally, when it became too much, she separated from him and moved a distance of two or three hours away, in El Salvador. But he quickly found her whereabouts, sought her out for continued mistreatment, including beatings and rape. Finally, she decided to divorce him. And immediately after the divorce, he said to her, “If you think that this frees you from me, you’re sadly mistaken. You will always be mine.”

I should add a couple of other facts in there, is that the police were repeatedly called, the Salvadoran police, were not responsive. On two occasions they issued protective orders, but they actually asked her to serve the protective orders on her husband. So you can imagine that somebody who’s being brutalized, threatened by a powerful man with weapons, and the police say, “Here’s this piece of paper. Go serve it on this person, telling him that he should leave you alone.” It’s just absolutely ludicrous. And on another occasion, the police said to her, “If you had any dignity, you would just leave him.”

And another important fact in sort of showing the government’s absolute lack of response or complicity is that her brother-in-law—in other words, the abuser’s brother—was a police officer. And he joined in the threats with her husband, and then her ex-husband, against her, saying, on some occasions, “You know, you better be careful. You don’t know where the bullets are going to be flying from,” and also threats that she was going to end up dead, cut up, put in a plastic bag and thrown in a river.

So I think, after, you know, 15 years, which included repeated attempts to get protection from the government, she made the decision that the only way to save her life was to flee, and she came to the United States seeking asylum. And, Amy, if you’d like, I can also describe the very sort of bizarre and inappropriate way in which her case developed, that ended up with Attorney General Sessions becoming involved.

AMY GOODMAN: Yes, please do, Professor Musalo.

KAREN MUSALO: Yes. So, she had the misfortune of appearing in front of an immigration judge, Judge Stuart Couch, who is in Charlotte, North Carolina, who is notorious for his very high denial rate in asylum cases, close to 86 percent denial rate, which is really stratospheric. It’s just so high, so high above the national average. And he’s also known for his particular hostility to claims based on domestic violence. He repeatedly denies them, using the same boilerpoint language, and had repeatedly been reversed on appeal by the Board of Immigration Appeals.

So, in Ms. A.B.'s case—followed that same path—he denied her asylum, first claiming that she wasn't credible, even though she had corroboration of many of the key aspects of her claim, but then saying, even if she were to be credible, she didn’t meet the refugee definition. And he went into his sort of very distorted understanding and application of the refugee requirements. So, she appealed her case to the Board of Immigration Appeals, and the Board of Immigration Appeals reversed Judge Couch. And what the Board of Immigration Appeals said was, basically, these reasons for finding her not credible have no basis. They just really are absolutely clearly erroneous. And she meets the definition under the precedent of A-R-C-G-, the case of Aminta Cifuentes. She meets the refugee definition.

And what the board did was went even further and said, “We order you, Judge Couch, to grant her asylum. We’re sending the case back to you so that the required security check can be done and a grant of asylum can be entered.” Goes back to Judge Couch. He refuses to grant. He lets it sit and sit and sit and sit for months. And then there’s a decision that comes down in the 4th Circuit Court of Appeals, in which North Carolina is part of that circuit court of appeals, and it’s a case that has nothing to do with domestic violence. And Judge Couch says—he seizes upon this and says, “See, this shows that her case is no longer legitimate. It no longer meets the legal requirements.” And he tries to send it back to the board for the board to reconsider its grant, which is sort of like a bizarre, rogue thing to do. The board just ordered him to grant asylum. He tries to send it back to the board, but it actually never arrives at the board. It sort of sits in Charlotte.

And then, for reasons that have yet to be explained to us, Attorney General Sessions learns about this case and exercises this regulatory right that he has to appoint himself to—it’s called certifying a case to himself, where he can take any decision of the Board of Immigration Appeals, appoint himself as a judge to that case and reach a decision on it. So, he reached out. He essentially took the Board of Immigration Appeals’ grant of asylum to Ms. A.B. And then, you know, he took the case—I don’t remember exactly, it might have been six weeks ago, eight weeks ago—and then issued his negative decision on Monday.

And one of the things—and again, if you or your listeners would want to hear a little bit more about it, when he issued his denial on Monday, it’s interesting to know actually what the position of the Department of Homeland Security is—was on this, because, generally, the Department of Homeland Security argues the government’s position. And so it might be interesting to just say what he did in light of what the government’s own position, the DHS’s own position, was on this issue.

AMY GOODMAN: Yes, we just have two more minutes, but please explain, and then tell us what happened specifically to Aminta from a few years ago, that case overturned, and A.B., as well as where they are today.

KAREN MUSALO: Yes. So, really quickly, the Department of Homeland Security actually tried to ask Attorney General Sessions actually not to take this case and reopen the question of whether domestic violence is a basis for asylum, and said, in its brief, that it was generally supportive of this precedent. So the government itself, sort of the prosecuting side, was saying, “We don’t think this should be disturbed, this precedent about women survivors being granted asylum.”

Ms. Cifuentes was granted—her grant of asylum remains. It’s not brought into question by this decision. But with Ms. A.B., this has thrown her into great anguish, because, you can imagine, the roller coaster of emotions from first being denied by Judge Couch and being subject to his abuse in the courtroom, then prevailing at the Board of Immigration Appeals, hearing that Judge Sessions certified the case to himself, and then just learning on Monday about his decision trying to deny her asylum.

The battle is not over. I think, ultimately, we will prevail on this issue. Sessions is trying to drag us back to the dark ages of human rights and women’s rights and refugee rights. But it’s a battle we shouldn’t have to fight in the year 2018.

AMY GOODMAN: And very quickly, calling domestic violence “private violence,” and how this fits into the picture of what Sessions is also doing to migrant mothers and fathers, ripping their children away, and these children piling up in detention centers along the border as their mothers are sent as far away as to prisons in Washington state? These are people who have not been convicted of any crime, the children as young as infants, children, teenagers.

KAREN MUSALO: Yeah, Amy, there are no words to describe the kind of cruelty—just the kind of cruelty that is exhibited by this administration in its policies, that are just horrific and are beyond what one could conceptualize that any decent, feeling human being could even think about. It’s unimaginable what is being done, the trauma to these women and children.

And then, you know, to go to the point that you asked about characterization of domestic violence as just a private crime, you know, this is what I meant when I said earlier that he’s trying to drag us back to sort of the dark ages of human rights and women’s rights, refugee rights. You know, there used to be this division of what happened in sort of the public arena by the government was a human rights violation, but what happened in the so-called private sphere, the home or society, to women wasn’t a matter for human rights. But we—you know, under the banner of women’s rights or human rights, we erased that artificial distinction. Whether a woman is tortured—you know, whether a person is tortured in the public square or in the home, it is torture. Whether she’s persecuted in the public sphere or in the home, it is persecution, and she qualifies for asylum. And so, he is trying to drag us back to a time period when women’s rights or children’s rights, LGBTQ rights, were not recognized, and individuals who were victims and survivors of egregious harms were not protected.

And this is what we have to fight against. And I think he is going against the tide of history and that we will prevail. And I hope people don’t lose heart. We’ve seen a lot of people standing up in very strong ways, really, you know, sort of joining with this—against this horrific policy of family separation. And I think we just need to keep the movement going and keep the opposition and the resistance strong, and ultimately we will be able to turn back these policies.

AMY GOODMAN: Karen Musalo, I want to thank you so much for being with us, professor of law and director of the Center for Gender and Refugee Studies at the University of California, Hastings College of the Law. She’s of the attorneys in the case of Ms. A.B.

This is Democracy Now! When we come back, we look at a report on extreme poverty in the United States and the movement that’s growing around the country, inheriting the legacy of Dr. Martin Luther King, the Poor People’s Campaign, that’s seen thousands of people arrested over the last weeks all over the United States, led by the guest we’ll have on today, Reverend William Barber, who was arrested last this past Monday, and led, as well, by Reverend Liz Theoharis, who was also arrested in front of the Supreme Court. We’ll be speaking with Philip Alston, the author of the report, as well. Stay with us.

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