This backgrounder was last updated in August 2018.
Factual Background for Ms. A.B.’s Claim for Protection
Ms. A.B. was born in El Salvador in the 1970s. She lost her parents at a young age and was subsequently separated from her siblings and placed in the care of a family friend who physically and verbally abused her. When she was in her early 20s, Ms. A.B. met the man who would become her husband. After they married, he began brutalizing her. Over the 15 years that followed, Ms. A.B.’s husband subjected her to horrific physical, sexual, and emotional violence. He beat and raped Ms. A.B. so many times that she lost count. He also frequently threatened to kill her, often brandishing a loaded gun or a knife. Ms. A.B.’s husband was violent even during her pregnancies, on one occasion threatening to hang her with a rope from the roof of their house. When they first met, Ms. A.B. was pursuing her education, but her husband forced her to cut her studies short. He constantly belittled and demeaned her verbally, treating her like a slave. Ms. A.B.’s husband also often falsely accused her of infidelity, going so far as ordering her to undress and show him her genitals so he could see if she had been with another man.
Ms. A.B.’s relationship with her husband was characterized by constant brutality and she often feared for her life. She repeatedly sought protection from the Salvadoran authorities, to no avail. While she was able to obtain two restraining orders against her husband, they went completely unenforced, and he continued to abuse and threaten her. After one particularly terrifying incident in which her husband attacked her with a large knife, Ms. A.B. went to the police and they refused to help, saying instead “if you have any dignity, you will get out of here.” Heeding their advice, she left her husband, moving to a town that was two hours away from where they lived together. But he managed to find her there and the abuse continued. Ms. A.B. then sought a divorce, which resulted in escalating threats on her life. A month after the divorce was finalized, her ex-husband, accompanied by his police officer brother, accosted her and told her that the divorce meant nothing and that her life was in danger. Following this incident, Ms. A.B.’s ex-husband and men with whom he associated continued to threaten her, describing in graphic detail how they intended to kill her. One week before she left the country, her ex-husband tracked her down again and physically assaulted her. With nowhere to turn, Ms. A.B. fled El Salvador to seek protection in the United States.
Consideration of Ms. A.B.’s Asylum Claim in the United States
Upon her arrival in the United States, Ms. A.B. was screened in and permitted to apply for asylum after an Asylum Officer found that she had a credible fear of persecution in El Salvador based on the violence she had suffered at the hands of her ex-husband. Ms. A.B.’s case was sent to the Charlotte Immigration Court, one of the courts most notoriously hostile to asylum seekers, to be heard by Immigration Judge V. Stuart Couch, an adjudicator with a long history of denying asylum to domestic violence survivors – and having his decisions overturned on appeal. Judge Couch denied Ms. A.B.’s asylum application, concluding based on perceived omissions in her testimony that she was not credible and thus not eligible for asylum.
Judge Couch also rejected the legal arguments made by Ms. A.B.’s attorney. In order to be found eligible for asylum, an applicant must show that she fears persecution on account of one of five “protected grounds”: race, religion, nationality, political opinion, or membership in a particular social group. In addition, in cases where the applicant’s persecutor is not a government actor, she must show that her government cannot or will not protect her. In recent years, women fleeing gender-based violence have been able to obtain asylum by demonstrating that they fear persecution based on the “particular social group” ground. Survivors of domestic violence like Ms. A.B. have prevailed in cases where they have shown that their countries lack the resources or willingness to offer them protection from their abusers. In 2014, the Board of Immigration Appeals (“Board”), the appellate court with nationwide jurisdiction over immigration cases, issued a groundbreaking precedent decision in one such case, Matter of A-R-C-G-, ruling that women fleeing domestic violence may qualify for asylum. The Board recognized a particular social group defined by gender, nationality, and relationship status – “married women in Guatemala who are unable to leave their relationship” – finding that deeply entrenched patriarchal norms in Guatemala perpetuate widespread gender-based violence that is inflicted with impunity. This decision has been reaffirmed in numerous subsequent cases. Nevertheless, Judge Couch rejected Ms. A.B.’s very similar proposed social group supported by patriarchal conditions in El Salvador that mirror those in Guatemala.
Ms. A.B. appealed Judge Couch’s decision, and her case was then heard by the Board. A three-member panel at the Board unanimously reversed Judge Couch’s denial, finding Ms. A.B. eligible for asylum based on her experience of domestic violence. The Board overturned Judge Couch’s negative credibility finding, concluding that Ms. A.B. had in fact testified credibly and that the minor omissions in her testimony were a result of the traumatic violence she had endured and its lasting psychological impact. The Board noted that Ms. A.B. had provided extensive documentation corroborating her testimony. The Board also found that Ms. A.B.’s proposed particular social group met the legal requirements for asylum, noting similarities between her case and the Board’s A-R-C-G- decision. The Board sent the case back to the court in Charlotte to allow it to complete the background checks necessary for Ms. A.B. to be granted asylum.
Attorney General’s Rare Review of Ms. A.B.’s Case
The Department of Homeland Security (DHS) completed Ms. A.B.’s background checks, but in a departure from usual practice, Judge Couch refused to issue a new decision in the case. He instead attempted to “recertify” the case back to Board for further consideration. In his order, Couch questioned the continued “legal validity” of A-R-C-G-. Seven months later, on March 7, 2018, Attorney General Jefferson B. Sessions took advantage of a rarely used power to refer the case to himself for a decision. Sessions requested briefing from Ms. A.B., opposing counsel at DHS, and advocates more broadly on the issue of “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal,” a related form of fear-based immigration relief. Ms. A.B. did not base her social group on her identity as a “victim of private criminal activity,” and nowhere in the Board’s decision was such a group referenced. Sessions’ question appeared to contest a legal argument that was never raised. The framing of the question was particularly troubling, because it seemed to be challenging well-established legal principles, some which have existed in legal precedent for decades. For example, adjudicators have long held that victims of persecution by nonstate actors may be found eligible for asylum in situations where their government is unable or unwilling to protect them. The courts have also recognized that harm inflicted by nonstate actors can be considered persecution, even if it also constitutes a crime. Both Ms. A.B. and DHS requested that the Attorney General clarify the briefing question, which he declined to do.
Ms. A.B. contended that due to procedural irregularities the Attorney General was never actually in a position to refer her case to himself and therefore did not have jurisdiction to consider it. Jurisdictional issues aside, the parties agreed that it would have been more appropriate to send the case back to the Board to allow it to consider the issue in the first instance. With respect to her substantive eligibility for asylum, Ms. A.B. argued that the Attorney General should affirm the Board’s decision finding her eligible for asylum and reaffirm the validity of A-R-C-G- and its holding that a successful claim for asylum can be based on domestic violence. More broadly, Ms. A.B. and several amicus parties urged the Attorney General to uphold well-settled U.S. law recognizing that asylum seekers can qualify for protection based on persecution perpetrated by nonstate actors in situations where the applicant’s government is unwilling or unable to provide protection. DHS agreed that the Attorney General should not overturn A-R-C-G- but took no position on Ms. A.B.’s particular claim.
Highlighting the importance of this case, twelve amicus briefs were filed, eleven in support of Ms. A.B., by parties that included:
- American Bar Association
- Catholic Legal Immigration Network
- George Washington University Immigration Clinic
- Harvard Immigration and Refugee Clinical Program et al.
- Former Immigration Judges and Board of Immigration Appeals Members
- Immigration Law Professors
- Innovation Law Lab
- National Immigrant Justice Center
- Tahirih Justice Center
- Private Immigration Attorneys David B. Gardner and the firm of Gonzalez Olivieri et al.
These advocates highlighted the problematic lack of transparency in the Attorney General referral process, asking for reform. They urged the Attorney General to affirm longstanding legal principles recognizing that individuals fleeing private persecution – including not only women fleeing a range of gender harms but also those fleeing religious or sexual orientation related persecution, who could also be impacted by a decision in this case – may qualify for protection if they meet their evidentiary burden. Moreover, they expressed concern that the Attorney General prejudged the broader legal principles implicated in the case and Ms. A.B.’s individual asylum claim, in violation of her due process rights. Sessions has long exhibited open hostility towards immigrants and asylum seekers, as Attorney General and previously as a U.S. Senator. He has also expressed particular skepticism towards asylum claims such as Ms. A.B.’s that are based on gender-related persecution, rather than, for example, religious-based persecution.
Attorney General Attempts to Roll Back Protections for Women Refugees
As feared, in his opinion issued on June 11, 2018, the Attorney General abrogated A-R-C-G-, using Ms. A.B.’s case as a political vehicle to undermine asylum protections for women and others fleeing persecution at the hands of nonstate actors. While the legal battle continues, Ms. A.B., who thought her odyssey for protection had ended when the Board reversed the immigration judge’s denial, is fearful and anguished by this turn of events, and the uncertainty around her case and her future safety. Ms. A.B. also remains separated from her three children. While her case is pending, she is unable to petition for them to join her in the United States.