Laurie Ball Cooper is a senior immigration and pro bono coordinating attorney at Ayuda, a nonprofit that assists immigrants.
The Guatemalan woman’s husband beat her weekly. He threw paint thinner at her, burning her breast. He raped her. She tried to hide within Guatemala, but he found her and threatened to kill her. She called the police, but they did not arrest him. He beat her again. And again. Finally, she fled and sought refuge in the United States. She received safe haven after years of legal battles. Last week, Attorney General Jeff Sessions took that protection away from other women like her. In doing so, he is echoing those in her home country who believe domestic abuse is a private matter.
Before last week, U.S. law recognized that women who could not leave their marriages and suffered grave harm as a result qualified, under some circumstances, for asylum. Asylum is reserved for those who flee persecution in their home countries. Most countries in the world (including the United States) are parties to the Refugee Convention and/or its Protocol and agree that those fleeing harm rising to the level of persecution under certain circumstances have a right to seek asylum.
Specifically, asylum is for those who suffer persecution on account of at least one of the following grounds: race, religion, nationality, political opinion or membership in a particular social group. The convention was adopted in 1951; it is not surprising that gender is not one of the five protected grounds. But for more than 20 years, the United States has recognized that women are often members of particular social groups defined in ways related to gender and that those groups are subject to persecution. When their home countries will not or cannot protect them, these women may qualify for asylum even if their persecutor is a nongovernment actor.
In 2014, the Board of Immigration Appeals (BIA), the nation’s highest immigration appellate body, recognized Guatemalan married women unable to leave their relationships as one such particular social group qualifying, under some circumstances, for asylum. Last week, the attorney general vacated that decision by taking back another, similar case in which the BIA had already decided that the applicant may qualify for asylum on similar grounds.
While the attorney general has the power to rewrite BIA decisions, at least in some circumstances, retired immigration judges have argued Sessions did not properly exercise that authority in this case. Regardless, Sessions did not just undo the protection offered one woman or one ruling. He also abandoned an argument that the Department of Homeland Security has been making for nearly a decade. Since 2009, DHS has recognized in its own legal briefs that women unable to leave their domestic relationships, in some societies and in some circumstances, are a particular social group deserving protection. Even in the case the attorney general vacated last week, DHS conceded that the group proposed was a viable particular social group under asylum law.
Women qualifying for asylum on this basis were not trapped in their relationships just because their abusive husbands stopped them from leaving. Their societies did not let them leave in any meaningful way. In these societies, the pervasive belief is that women belong to their husbands. A wife is her husband’s — his punching bag, his business. Nothing the woman does, neither separation nor divorce, can change that. The state does not protect her because she is his and because she is not valued. So her suffering is a private, family matter.
That is one reason married women who cannot leave their relationships are seen as a group within the societies in question. Instead of recognizing these dynamics for what they are, the attorney general echoed the governments in these societies, saying that domestic violence is a private, family problem, no matter how severe.
The many flaws in the attorney general’s decision may lead to it being reversed, and there are other avenues that allow some women fleeing domestic violence to prevail despite this ruling. Still, thousands of women will be turned away in the meantime, denied refuge and sent back to their fates — beatings, rapes and for some, death. For too many, safety is now beyond their grasp. Instead, the U.S. government has revoked the refuge once offered to women who dared to demand that their worth be recognized. These women rejected the premise that they were their husbands’ by fleeing their home countries. They fled because their home country governments looked on while they suffered. Now the United States too looks on, undisturbed, unmotivated to intervene, unwilling to protect them.