Leave immigration law precedent on asylum for crime victims intact, ABA urges in amicus brief

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The United States should continue to make asylum available for victims of crimes that aren’t being addressed by immigrants’ home countries, the ABA says in an amicus brief filed April 27.

Under precedent from both the Board of Immigration Appeals and the federal appeals courts, the brief says, such people are members of a “particular social group” within the meaning of federal immigration law. The Justice Department should not abandon that precedent, the American Bar Association says.

“Such cases include fact patterns involving very serious crimes, such as female genital mutilation, severe domestic violence (including repeated beatings and rape), and incest,” the brief says. “Setting aside the inability of the Attorney General to overrule Circuit Court precedent, a reversal of long-standing BIA precedent involving persecution by private actors would further victimize those most in need of protection.”

The brief was filed in Matter of A-B-, a case that CNN says centers around a woman who fled rape and abuse by her husband in El Salvador and asked for asylum in the United States. The Board of Immigration Appeals, which hears appeals from the immigration courts, found that the woman did qualify for asylum.

But Attorney General Jeff Sessions stepped into the case sua sponte and assigned it to himself for review, a power that the attorney general has over the immigration courts. He reopened it, asking the parties and any interested amici to submit briefs on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application of asylum or withholding of removal.”

The ABA’s brief answers that call with an argument that private criminal activity indeed can make an immigrant eligible for asylum and withholding of removal (which cancels a deportation). To receive one of those two benefits, the Immigration and Nationality Act requires that immigrants show membership in one of five groups defined by the law, including “a particular social group.” Those people must then show persecution or a well-founded fear of persecution because of membership in one of those groups.

Past cases show that private criminal activity—distinguished from state-sponsored crime—can be persecution when the government is unable to unwilling to stop it, the brief notes. Immigrants so persecuted because of membership in a particular social group have also been granted asylum by federal appeals courts and the BIA, the brief says. This included a case in which an immigrant was fleeing forced prostitution; a case in which an immigrant was fleeing female genital mutilation; a case in which an immigrant was fleeing physical and sexual abuse by her father; a case in which an immigrant feared an “honor killing” by her brother; and a case in which an immigrant was fleeing after gang rape by a nongovernment militia.

These decisions are consistent with guidelines issued by the Justice Department itself and the United Nations, the ABA argues. Furthermore, reversing the BIA’s precedent on this subject would put the board in conflict with multiple federal appeals court decisions, the brief notes. Sessions has no power to overturn those cases.

The matter has attracted interest in the immigration law community, with briefs submitted from several other organizations. Friday was the deadline for such briefs; reply briefs are due May 4.

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