Federal Court Reaffirms U.S. As Safe Haven for Domestic Violence Survivors

Federal Court Reaffirms U.S. As Safe Haven for Domestic Violence Survivors
“Although not all women who experience persecution are able to satisfy the stringent requirements of U.S. asylum law,” writes Bookey, “the court was resolute: There is no basis in law to shut the door in their face before they’ve even had a chance to knock.” Pictured: A November 2018 march to welcome Honduran refugees and protest against troops on the border. (Fibonacci Blue)

On March 16, when San Francisco issued its first stay-at-home order, I was in the office, preparing to go to court and argue that domestic violence survivors forced to flee their homes should be able to seek asylum protection in the U.S.

Grateful for the privilege of having a home to shelter in, I couldn’t help but think: What if home were not safe? 

At this moment, in the face of a global surge in domestic violence, the Trump administration is slamming the doors on women and other vulnerable asylum seekers. But last week, in the case of Dominican survivor Jacelys De Pena-Paniagua, a federal appeals court pushed back.

For over twenty years, the U.S. has recognized that women escaping persecution perpetrated against them simply because they are women can qualify for refugee protection under our asylum laws. These legal precedents were established—following the pioneering work of the organization where I work, the Center for Gender and Refugee Studies—in cases involving gendered harms like female genital cutting, sex trafficking and forced marriage.


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Although the recognition of asylum claims based on domestic violence took a more circuitous route—with multiple administrations weighing in—a 2014 case by the nation’s highest immigration court (the Board of Immigration Appeals) settled the debate. Both the Department of Justice and the Department of Homeland Security agreed that survivors of such abuse could also qualify as refugees.

But then, in 2018, former Attorney General Jeff Sessions rolled back these advances—making domestic violence survivors one of the first casualties in the administration’s all-out assault on asylum seekers. 

In a decision known as Matter of A-B-, Sessions used the case of a Salvadoran woman as a vehicle to overrule the 2014 precedent and to declare that women fleeing domestic violence should “generally” no longer qualify for refugee protection.

The Board had already granted asylum to the woman, Ms. A.B. (name withheld to protect her safety). But Sessions stepped in and overturned their decision—without examining a single piece of evidence documenting the fifteen years of unrelenting physical and sexual abuse she had suffered at the hands of her former partner. A.B. had only sought refuge in the United States after her abuser made escalating threats on her life, and the police ignored her repeated entreaties for help.

Sessions’s ruling went far beyond the specifics of A.B.’s case and shredded decades of a developing legal consensus that when it comes to asylum, women’s rights are human rights.

The Matter of A-B- decision has had a devastating effect, leading to a sharp downturn in asylum grant rates around the country. Immigration judges—who are Justice Department employees, not independent judges—have followed the attorney general’s lead and denied protection in many cases without considering the woman’s specific circumstances and the degree of risk she would face if deported.

De Pena-Paniagua was one such survivor denied her fair day in court. Her story closely mirrors that of A.B.

Like A.B., De Pena sought asylum in the United States after enduring years of horrific domestic violence in the Dominican Republic.

Like A.B., De Pena was failed by the authorities in her home country—who refused to protect her from her abuser.

And, like A.B., De Pena did not receive a fair hearing from the immigration court system.

The lower immigration court denied asylum to De Pena with cursory legal analysis, and she then appealed to the Justice Department’s Board, which incorrectly interpreted Matter of A-B- to impose a complete ban on cases involving domestic violence.

On April 24 of this year, a federal appellate court in Boston called out this error, overruling the Board’s decision as arbitrary and unprincipled. The Court of Appeals for the First Circuit thus reiterated a bedrock principle of asylum law: that each person has the right to a fair consideration of her case under the law, which requires a judge to meaningfully review the facts and evidence presented and to not prejudge the case. 

Perhaps even more importantly, the court decisively recognized a fundamental principle that had been the law of the land before Sessions intervened—that women are a protected group and that they are persecuted in many countries precisely because of their gender and status as women in society.

Although not all women who experience persecution are able to satisfy the stringent requirements of U.S. asylum law, the court was resolute: There is no basis in law to shut the door in their face before they’ve even had a chance to knock.

De Pena is far from alone. Rather, her case is emblematic of the protection crisis created by the Attorney General’s ruling, which has resulted in many women being singled out for discriminatory treatment. The First Circuit’s ruling is an important step in restoring the legal advances upended by the Attorney General. And we are hopeful that other jurisdictions will follow suit. The Ninth Circuit is presently deliberating on the case that I argued while sheltering in place. 

Federal Court Reaffirms U.S. As Safe Haven for Domestic Violence Survivors
“The court recognized a fundamental principle: that women are a protected group and that they are persecuted in many countries precisely because of their gender and status as women in society,” writes Bookey. Pictured: Woman in the Balukhali Rohingya refugee camp in Cox’s Bazar, Bangladesh. (UN Women Asia)

When A.B. learned of the First Circuit’s decision, she expressed hope that the U.S. would yet live up to its commitment to extend protection to survivors like her and De Pena who meet the demanding criteria for asylum.

“It has caused me great pain to think that my case has been used to justify the rejection of other women seeking protection from the violence that plagues our countries,” she said. “But the court’s decision gives me faith that my case will not close the door for others and that I, too, will eventually prevail and be able to hold my children again in safety.”

Hearing this from A.B. while I am safe at home and closer than ever to my own children, what’s at stake comes into even sharper focus. It is now all the more critical that the United States uphold its legal and moral obligations to women and children fleeing persecution.

Instead of using the pandemic as justification to further shut down the asylum system and return women directly to harm, this is exactly the moment when the United States should affirm our nation’s founding values as a beacon of hope and safe haven. 

Learn more and take action to support survivors seeking protection at ImmigrantWomenToo.org

Editor’s note: Bookey represents Ms. A.B. in her asylum proceedings and represented the Center as amicus curiae in the case of Ms. De Pena.


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About

Blaine Bookey is Legal Director at the Center for Gender and Refugee Studies.