Attorney General Merrick B. Garland recently reversed a 2018 Trump administration decision that had made it almost impossible for people to win asylum in the United States if they were fleeing domestic violence in their home countries.

“Many people were likely deported back to their deaths because they were deported to countries where they had been very severely victimized and abused,” Leidy Perez-Davis, Senior Policy and Immigration Counsel at Asylum Seeker Advocacy Project, said about the 2018 ruling.

In 2019, the United States denied 69 percent of people asylum or other forms of relief. The Transactional Records Access Clearinghouse at Syracuse University found that the number of immigrants denied asylum grew from 9,716 in 2014 to 46,735 in 2019. 

“There’s a huge backlog,” said Perez-Davis about asylum cases. “What we hope, of course, is that the people with meritorious claims of domestic violence…will be granted asylum.”

As Vice President Kamala Harris heads to the U.S.-Mexico border Friday, we take a look at how Garland’s ruling affects this subset of asylum seekers.

How exactly did Garland’s ruling improve the chances of asylum for domestic violence survivors?

Asylum seekers must prove that they fear persecution, and United States law asks that they list the reason for persecution, based on five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Trump-era Attorney General Jeff Sessions overturned a 2014 decision in a case called Matter of A-R-C-G-, which had classified “married women in Guatemala who are unable to leave their relationship” as a particular social group. 

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Sessions’ decision in the 2018 Matter of A-B- case stated that the decision in  the Matter of A-R-C-G- “is overruled.” In other words, Sessions found that the domestic violence survivor in the 2014 case feared harm because of a personal relationship, not because of membership in a particular social group, and that she had to prove that the home country’s government condoned the abuse.

More recently, Garland vacated Sessions’ decision and restored the social group classification. Associate Attorney General Vanita Gupta explained the decision in a memo issued on June 16, essentially making it possible once more for domestic violence survivors to check the box for “particular social group.” 

How does the government define a ‘particular social group’?

“A particular social group is defined by an immutable characteristic, which is a characteristic that the [asylum seeker] either can’t change or is so fundamental to their identity that they shouldn’t be required to change it,” said Anne Dutton, a staff attorney at Center for Gender and Refugee Studies. 

Dutton gave examples of family relationships or sexual orientation as immutable characteristics. She also said that “married Guatemalan women who are in relationships they’re unable to leave” is also an immutable characteristic.

“The ‘unable to leave’ part is really what makes it immutable,” said Dutton. “Because when you’re in an abusive relationship, the decision to end that relationship doesn’t really rest with the survivor. It’s often at the abuser’s control.”

Dutton explained that asylum seekers claiming to be part of a social group must also prove that their social group is “distinct and particular.” 

“Social distinction requirement asks the applicant to establish that their proposed group is perceived as a group in their society,” said Dutton.

People can show their group is distinct by demonstrating that a government recognizes the group. In Matter of A-R-C-G-, Dutton said that lawyers looked at State Department reports that discussed how women in Guatemala were often caught in relationships because of an abusive dynamic, proving that the U.S. government understood the reality of these women.

The particularity requirement, Dutton said, “really requires that the group be defined with concrete terms.” The goal for that requirement, Dutton said, was that with the idea that “you can tell who’s in the group.” 

Dutton said Matter of A-R-C-G- showed how “married women in Guatemala who are unable to leave their relationship” fulfilled the particularity requirement by showing that Guatemalan police could identify who was in the group, and sometimes didn’t intervene when called because they knew and accepted that these women were abused by their husbands.  

Irena Sullivan, the senior immigration policy counsel at Tahirih Justice Center, a nonprofit organization for asylum seekers fleeing violence, explained that lawyers and asylum seekers could use a category other than “particular social group.” She heard a story of a woman, for instance, who could claim religious persecution because her husband harmed her for attending church and asserted religious views different from his. 

However, Sullivan said, using a category other than “particular social group” excludes many people who cannot prove a reason separate from their prescribed gender role within the relationship, household, and society at large. She also emphasized that the decision to reinstate married Guatemalan women who are in relationships they’re unable to leave as a particular social group recognizes the unique systemic problem of domestic and gender-based violence as its own reason for asylum.

Why isn’t gender a protected ground for asylum seekers? Can this change?

Asylum laws in the United States are based on the International Refugee Convention, written in 1951, which does not have a gender category, Sullivan said. She explained that in the early 2000s, the United Nations came out with guidance stating that the 1951 convention should include gender within “social group” instead of adding a sixth category.

“Without it, we’re stuck with decision-makers who still find a way to reject gender-based claims,” said Sullivan. 

The Tahirih Justice Center and other advocates have been saying that gender should be a protected ground for asylum because of the prevalence of gender-based violence. An August 2020 report from the California Law Review noted that 2,264 Guatemalan women suffered violent deaths between 2014 and 2016 and that Guatemala’s Public Prosecutor’s Office found that 76 of such cases reported to police in 2013 “were perpetrated by a current or former partner.” The report had similar findings in El Salvador and Honduras. Sullivan explained that while more current data isn’t widely available, in her experience, the numbers don’t seem to have dropped.

“Let’s say you don’t know the language, you’re experiencing acute trauma, you arrive at the border,” said Sullivan. “And a border patrol officer with a gun and a uniform is standing there saying, ‘Why are you here?’ and you say, ‘I want to seek asylum,’ and he hands you a list of reasons, and there’s no gender on there, and there’s a social group. The likelihood that you’re going to look at that and say, ‘that’s me’ is very, very low.”

Sullivan explained that, in a state of desperation, some people check off another protected ground like race or religion, complicating the adjudication process. She said that a judge might ask, “Is she not credible? Is she just trying to say anything to get in the door? It sort of triggers a series of skepticisms.”

The relative ambiguity around domestic violence as a reason for asylum means applicants are sometimes denied asylum because abuse is often regarded as a personal matter, like in Sessions’ 2018 ruling, and not a broader societal issue. Many domestic violence survivors seeking asylum have no power against their abuser — no governmental or institutional protection — because the wider culture, including governmental actors and police officers, reinforces these household dynamics, Sullivan said. The household, she said, is just a part of a national problem, and domestic violence is often gender-based violence.

Kathleen Kuehnast, director of Gender Policy and Strategy at the U.S. Institute of Peace, said that while many people experiencing domestic violence are women, men and boys also experience sexual violence, often used to humiliate. She also emphasized the need to recognize LGBTQIA+ people in discussions of gender-based and domestic violence. 

“It’s time we stood up and said, ‘Why are we continuing to exclude gender?'” said Sullivan. 

Perez-Davis, from the Asylum Seeker Advocacy Project, explained that an asylum officer who works for the U.S. Citizenship and Immigration Services (USCIS) “is supposed” to ask every person at the border if they are seeking asylum. But this doesn’t always happen, and asylum seekers are often put in immigration detention. If they declare their need for asylum, they are given what’s known as a credible fear interview.  

“It’s a very traumatic experience because it happens to people within hours or days after having done the trek into the United States,” said Perez-Davis. “That happens to people who are maybe for the first time telling their story, and they’re telling this story over the phone.”

Perez-Davis explained that some credible fear interviews were face-to-face before the pandemic, but not many, and an asylum officer conducts the interviews. People who pass the interview wait, usually in immigration detention, for a judge to review their I-589 application, which is a form in English that asylum seekers have to fill out in English. She noted that this is the asylum process for people who have been apprehended at the border—someone already in the United States who may, for example, have a lapsed visa, would use another process.

Many asylum seekers cannot afford lawyers, Dutton said, and are often in immigration detention centers away from resources. She explained that the immigration court is not required to provide asylum seekers with legal counsel.  

“In criminal law, there are public defenders, and so if you can’t afford an attorney, there will be an attorney appointed to represent you to help safeguard your rights as you go through criminal proceeding,” said Dutton. “In immigration law and immigration courts, it’s a civil proceeding, and there is no right to have a council appointed for you.”

Will this change last?

Immigration law is in the executive branch and, as a result, decisions can be overturned by the Attorney General fairly quickly.

“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 stated in his decision.

While rulemaking is more difficult to overturn, said Dutton, it’s also “a pretty lengthy process.”

“Usually they issue a proposed rule, and then invite public comment to get feedback on whether the rule is good or bad or what will work or won’t work, and then they’ll subsequently issue a final rule,” said Dutton. 

The lengthy process is worth it, Perez-Davis said, telling a story about one of the Asylum Seeker Advocacy Project members who entered the United States seeking asylum in 2014, under the Obama administration. After President Donald Trump came into office in January 2017, the United States denied her case. She appealed, the judge decided he wasn’t going to hear her case, so she re-appealed. It’s 2021, and she is still in limbo. 

“She’s in a totally different ballpark, a better ballpark,” said Perez-Davis about the Garland ruling. “but it just goes to show you the lens which people have are at the whims of the political tug.”