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FILE - In this May 7, 2018, file photo, Attorney General Jeff Sessions listens during a news conference in San Diego near the border with Tijuana, Mexico. (AP Photo/Gregory Bull, File)

Who qualifies for asylum? DOJ policy will impact victims of domestic, gang violence


Immigration advocates and Democratic lawmakers denounced the Trump administration for a new immigration policy affecting victims of domestic violence and gang violence.

Attorney General Jeff Sessions announced on Monday that victims of domestic and gang violence will generally not qualify for asylum in the United States. The decision reverses a previous interpretation of the Immigration and Naturalization Act (INA) put in place to protect victims of domestic abuse.

Under the new policy, asylum will only be granted to individuals who leave their home country because of credible fear of persecution based on their race, religion, nationality, social or political affiliations. "Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum," Sessions wrote in his decision.

Sessions leaves out domestic, gang violence from asylum claims

At a Monday conference of immigration judges in Washington, D.C., Sessions asserted the asylum system "is being abused to the detriment of the rule of law."

Citing the fact that credible fear claims have "skyrocketed" in recent years and U.S. immigration courts are overwhelmed with asylum cases, Sessions said, "Asylum was never meant to alleviate all problems, even all serious problems, that people face every day all over the world."

The attorney general's decision will have immediate implications. Asylum officers, who assess claims of credible fear at the border, will not be obligated to process individuals who cite gang violence or domestic violence as their reason for seeking asylum in the United States. Unless they demand an immigration hearing, those individuals will qualify for expedited removal.

Fewer credible fear referrals will, in turn, reduce the massive caseload for U.S. immigration judges. The backlog of immigration court cases is currently over 700,000, more than three times the number of pending cases in 2009.

On Capitol Hill, Democrat condemned Sessions, warning of dire consequences for individuals fleeing persecution.

"People will suffer brutality and the blood will be on Jeff Sessions' hands," Sen. Richard Blumenthal, D-Conn., told reporters. He added that denying asylum protection to victims of domestic abuse and gang violence was "noxious," "hideous," and "a betrayal of American values."

Sen. Jeff Merkley of Oregon argued the Trump administration is trying to "completely change the vision of the United States as a nation that understands people fleeing persecution."

The American Civil Liberties Union warned the new asylum rule is "effectively a death sentence" for immigrants fleeing dangerous situations. The ACLU argued the U.S. policy is to "slam the doors" on immigrants and asylum-seekers.

Others argued Sessions decision to overrule a previous decision on asylum policy was inappropriate and could be challenged in court.

"With the stroke of his pen, Attorney General Sessions is attempting to unilaterally rewrite U.S. asylum law," said Eleanor Acer, senior director of the Human Rights First refugee protection program.

A group of more than a dozen former immigration judges and members of the Board of Immigration Appeals, challenged the decision as "an affront to the rule of law," saying it overturned a 15-year judicial process that resulted in expanded protections for victims of domestic violence. The former officials expressed their hope that appellate courts or Congress will reverse the decision.

For those in the U.S. immigration court system, few matters are as challenging as adjudicating asylum claims, in no small part because of the often painful, heart-rending facts involved in the cases.

"The biggest issue in considering these cases, is the fact that you're talking about heinous actions that are inflicted on innocent people," said Andrew Arthur, a former immigration judge and resident fellow at the Center for Immigration Studies. "That doesn't mean that you're not required to apply the law as Congress has written it and as the Board of Immigration Appeals has developed it over the years."

Under the law, individuals qualifying for asylum in the United States must prove they were being persecuted by their government or non-government actors because of their membership in a "particular social group" or political affiliation. If they were targeted by independent actors, they have to prove their government was unwilling or unable to protect them.

For years, asylum claims made by victims of domestic violence were typically rejected because they failed to demonstrate they were being abused because of their membership in a "particular social group."

In 2014, a legal decision (A-R-C-G-) was made on behalf of a Guatemalan woman seeking to escape an abusive husband that set a precedent for the immigration court's treatment of domestic violence victims.

The rule established "married women in Guatemala who are unable to leave their relationship" as a particular social group, protected under the INA. As such, immigration judges were given broad discretion to authorize asylum in cases involving Central American victims of domestic violence.

That legal decision was overturned on Monday to restore the previous interpretation of the asylum law.

"This language has existed in the INA for decades, largely unchanged," Arthur explained, in a statute is drawn "rather narrowly." The statute gives immigration judges the authority to grant asylum if an individual is being persecuted because of race, religion, nationality or membership in a particular social group or political affiliation.

"If Congress wants to change the law, they can. But the attorney general, the immigration judges, the Board of Immigration Appeals and the asylum officers have to follow the law that Congress has set out," he said.

Sessions' decision on Monday established bright line rules for immigration judges and asylum officers that will clarify and redefine which claims can be considered legitimate.

According to Sessions, this clarity will help judges "rule consistently and fairly" and curb the number of "baseless claims" for asylum, which have been increasing in recent years.

The rule is also intended to curb the number of "baseless claims" for asylum, which have been increasing in recent years, the attorney general said.

Since 2009, the number of people claiming "credible fear" at U.S. borders has increased from 5,000 to 94,000, according to the Department of Homeland Security. While approximately 85 percent of individuals claiming credible fear at the border are given an immigration court hearing, only 20 percent of asylum claims are later approved.

President Donald Trump has blamed former President Barack Obama for the changes to asylum policies arguing they are the cause of the recent years' increase in illegal immigration. Trump has argued the Obama administration created a "catch and release" policy that incentivized immigrants to turn themselves in at the border falsely claiming asylum.

Under the Obama administration, many individuals claiming asylum were allowed to enter the United States while awaiting an immigration court date. Due to the backlog of cases, the average wait time for an immigration case in 2017 was almost two years.

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