The DOJ has granted asylum to Ms. A.B., a Salvadoran woman who fled domestic violence. The victory reaffirms: Violence in a home is not a private matter; marriage is not an excuse for rape; and gender-based violence is reason for urgent action.
An overdue legal victory has brought some hope to survivors of gender-based violence. The Department of Justice has granted asylum to Ms. A.B., a Salvadoran woman who had fled horrific domestic violence. Ms. A.B.’s case flew into unanticipated prominence in 2018 when former Attorney General Jeff Session declared Ms. A.B. ineligible for asylum protection on the basis of gender-based violence: a type of persecution he generally proclaimed as ineligible for relief.
This win is a testament to Ms. A.B.’s resolve and the tenacity of her legal team. I spoke with one of Ms. A.B.’s formidable attorneys, Blaine Bookey, from the Center for Gender and Refugee Studies, at U.C. Hastings, which took on the previous administration’s bullish attempts to push intimate partner violence back into the shadows.
This course-correcting victory reaffirms what we know to be true: Violence within a home is not a private matter; marriage is not an excuse for rape; fair investigation and adjudication of your individual case, on its unique facts, is your right; and widespread prevalence of gender-based violence is not an excuse for inaction but a reason for urgent action.
This recent victory should serve as a humble reminder that even what is better (than many other parts of the world) about the very imperfect legal system in the United States cannot be taken for granted and has not come without great human costs, sustained fights by civil society and the daring of women who don’t give up.
Mallika Kaur: Could you begin by setting the context about the stakes of this legal fight. How did Jeff Sessions’s stance against asylum for Ms. A.B. impact other victim-survivors and asylum seekers?
Blaine Bookey: To be granted asylum, one must show a fear of persecution on account of a protected reason—race, religion, nationality, political opinion or membership in a particular social group. Although gender is not included in that list, the U.S. has consistently recognized since the 1990s that women fleeing gender-based persecution may qualify as members of a “particular social group” deserving of protection. This recognition culminated in a 2014 ruling explicitly recognizing intimate partner violence as a basis for asylum.
Sessions used Ms. A.B.’s case to overturn that 2014 precedent, setting the law back with devastating effects. It encouraged immigration judges to prejudge cases and deny whole categories of claims. Grant rates for women and others fleeing violence, in particular from Central America, plummeted and women were sent back to their fates. Although Sessions could not impose a total ban on asylum for survivors, his intention to deny protection to as many as possible was borne out.
“Although Jeff Sessions could not impose a total ban on asylum for survivors, his intention to deny protection to as many as possible was borne out.”
Kaur: Let’s turn to the specifics of Ms. A.B.’s own case. Could you tell us about Ms. A.B., her case and how she was close to being granted asylum before, and why her life was then thrown into limbo for years?
Bookey: I have had the privilege of representing Ms. A.B. since Sessions intervened in her case in 2018.
Ms. A.B. is a 50-year-old woman who has experienced a lifetime of trauma. Orphaned at a young age, she was separated from her siblings and taken in by an acquaintance who treated her like a domestic servant. In her 20s, she began a relationship with a man who brutalized her physically, sexually and emotionally for the next 15 years. She tried to escape on many occasions, but he always tracked her down. And the Salvadoran authorities did little to protect her. In fact, her abuser used his brother’s position as a police officer to intimidate Ms. A.B. He also used their three children to further his control.
A graphic death threat was the last straw and Ms. A.B. made the heart wrenching decision to leave her children behind to save her life. Ms. A.B. often speaks about how she is one of the lucky ones who is still alive to tell her story. So many other women in El Salvador, which has one of the highest femicide rates in the world, are no longer here to share their stories.
Ms. A.B.’s asylum case was initially heard by a Charlotte-based immigration judge with a track record of animus towards immigrants and one of the highest asylum denial rates in the country (over 90 percent). Unsurprisingly, he rejected her case. But the Justice Department’s appellate tribunal overturned his decision, finding Ms. A.B. eligible for asylum in December 2016 and returning the case to the judge to grant it. In ordinary circumstances, Ms. A.B. would have received a final grant within months and then been able to petition to bring her children to the U.S. to be with her. But the judge instead defied the higher court’s orders. notifying higher-ups in the Justice Department through ex parte communications that he was sending the case back up the chain. He was signaling that Ms. A.B’s case might be a good vehicle for executing the Trump administration’s goal of restricting asylum.
Sure enough, within months, Sessions took up the case and issued a new ruling. Not only did he declare the appellate tribunal incorrect in granting Ms. A.B. asylum, but he used her case to cast doubt on the viability of all such claims going forward.
For the next three years Ms. A.B. courageously fought her case in the courts and never gave up hope, knowing that a positive result in her case could mean safety for other women.
Kaur: The previous attorney general’s decision against Ms. A.B. sent a hazardous message for everyone, immigrant or not: ‘Domestic violence is a private matter.’
How did backlash against this regressive message help advocacy around this case?
Bookey: Activist movements, globally and here at home, worked tirelessly in the last century to ensure that women’s rights are seen as human rights. Strides in the broader field of human rights paved the way for parallel recognition of women’s asylum claims in the field of refugee law.
Sessions’s ruling, reviving the antiquated view that domestic violence is just “private” or “personal” and not a matter of public concern, stood in stark contrast to that bold history and to more contemporary movements affirming women’s rights—#MeToo, Women’s Marches, Time’s Up. Advocates from both the immigrant rights and women’s rights spaces saw the danger Sessions’s views posed to this progress and worked collectively to bring attention to the issue, to great success.
“Sessions’s ruling, reviving the antiquated view that domestic violence is just ‘private’ or ‘personal’ and not a matter of public concern, stood in stark contrast to that bold history and to more contemporary movements affirming women’s rights.”
Kaur: What does this win, as essential as it is for Ms. A.B., mean for other cases?
Bookey: The win for Ms. A.B. will have far-reaching impacts for women and others seeking asylum. By vacating his predecessor’s decision, Attorney General Garland returned the law to the status quo before, when domestic violence claims were clearly recognized. While the law is still far from perfect and advocates will need to hold judges accountable, this decision will ensure that survivors have their claims fairly considered and not prejudged or held to heightened standards.
Kaur: Although Garland’s decision was an extremely positive step forward for women seeking safe haven in the U.S., the law was not without problems before the Trump administration assumed office. Can you comment on what barriers to asylum still stand for survivors of gender-based violence?
Bookey: Garland’s decision in Ms. A.B.’s case repudiates Trump-era attempts to slam the door on survivors and tosses Sessions’ sruling to the ash heap of history where it belongs. However, the decision is fairly short and limited in its analysis because the administration is currently working on regulations to chart a clearer path forward for the treatment of these cases.
I would be remiss if I didn’t mention that despite some positive advancements, the Biden administration has left in place the single biggest barrier to asylum erected by the Trump administration. Through an obscure public health code, using the COVID-19 pandemic as pretext, last year the Trump administration closed the border to asylum seekers, expelling them back to danger in Mexico or their home countries with no due process. The Biden administration has doubled down and, over the repeated objections of public health experts, continued this shameful, illegal policy of returning asylum seekers, including women and young children, to danger with devastating consequences.
“The Trump administration closed the border to asylum seekers, expelling them back to danger in Mexico or their home countries with no due process. The Biden administration has doubled down and, over the repeated objections of public health experts, continued this shameful, illegal policy of returning asylum seekers, including women and young children, to danger with devastating consequences.“
Kaur: It’s sometimes difficult for activists who work with so much trauma and so few signs of systemic and cultural change to celebrate the wins when they finally do occur. Have you and your team allowed yourself some time to take in this victory?
Bookey: To quote some wise women—“what’s the point in the revolution if we can’t dance?” While much work remains, yes, we have absolutely taken time to recognize the hard work of many on our team and coalitions across the country that helped bend the moral arc of the universe back towards justice. And most importantly, we have acknowledged and given gratitude to Ms. A.B. and the many other women we work with whose courage and perseverance has kept us afloat.
“We have acknowledged and given gratitude to Ms. A.B. and the many other women we work with whose courage and perseverance has kept us afloat.”
Kaur: Is Ms. A.B. safely living in the U.S. now, free from threat of deportation? What about her three children?
Bookey: Yes, the grant of asylum to Ms. A.B. is final and puts her on a path to permanent residence and eventually U.S. citizenship. She is also in the process of applying for her three children, from whom she has been separated for over seven years, to join her in the United States. But because of backlogs, it could still be many months or years before she sees them again.
As Ms. A.B. has said “Until I am able to hold them in my arms, a part of me will always be empty.” Despite the myriad injustices she has faced, Ms. A.B. continues to have faith she will be made whole again.