One quick asylum fix: How Garland can help domestic violence survivors

With the stroke of a pen, U.S. Attorney General Merrick Garland could restore access to life-saving protection for domestic violence survivors and others caught in the crosshairs of his predecessors’ campaign to exclude refugees. Garland can and should immediately vacate Jeff Sessions’ 2018 decision in the case known as Matter of A-B-, which all but eliminated asylum for people fleeing brutal domestic violence.

On the campaign trail Joe Biden pledged to reverse Matter of A-B- and ensure a fair opportunity for survivors to seek asylum. As president, Biden has issued an executive order directing his Departments of Justice and Homeland Security to review their asylum policies and, by August, determine whether our country protects people fleeing domestic violence in a way that’s consistent with international standards. Following this review, the agencies will issue regulations that bring our treatment of asylum seekers into alignment with our treaty obligations, and with basic principles of humanity and fairness.

But this process will span many months, and when lives are on the line, more immediate action is imperative. Every day Matter of A-B- remains in effect, people are being wrongly denied asylum and delivered into the hands of the very persecutors they’ve fled.

How did we get into this mess? In 2018, then-Attorney General Jeff Sessions personally intervened in the case of Ms. A.B., a Salvadoran woman. He used her case as a vehicle to overrule a landmark Justice Department opinion recognizing domestic violence as a potential basis for asylum. That ruling was the culmination of 15 years of advocacy and extensive consideration by government agencies and refugee law experts. 

The impact of Sessions’ decision was immediate and catastrophic. Immigration judges around the country began denying asylum in cases that — pre-Matter of A-B- — should have been relatively straightforward. Though some survivors could still prevail in immigration court, Trump administration attorneys would often appeal these cases to the Justice Department’s appellate tribunal, the Board of Immigration Appeals, and get them overturned.

Sessions’ decision adopted the long-discredited notion that gender-based violence is merely a “private” matter, rather than a human rights violation, and therefore cannot be grounds for refugee protection. So much for the idea that “women’s rights are human rights.” The ruling was a shameless attempt to slam the door on people fleeing countries like Ms. A.B.’s native El Salvador, where human rights violators are frequently members of victims’ own households and communities who perpetrate violence with impunity.

One of the authors — Professor Musalo — represents a victim of Sessions’ attack on survivors: We’ll call her “Cristina” to protect anonymity. Cristina fled Honduras after enduring nearly two decades of domestic violence so severe it once put her in a month-long coma. Cristina was also terrorized by a politically powerful family that murdered multiple siblings and close relatives. When Cristina received a note threatening her with the same fate, she knew she had no choice but to seek asylum.

Cases like Cristina’s have life-or-death stakes, but with Sessions’ ruling intact they are being denied automatically. Though Cristina presented a strong asylum application, in 2020 the Board of Immigration Appeals denied her case, ruling that Matter of A-B- precluded protection. Cristina now faces imminent deportation to Honduras, where she is terrified she’ll be killed.

Merrick Garland can protect survivors like Cristina by simply vacating Sessions’ decision and related asylum rulings from Trump’s Department of Justice. This would at least bring us back to where we were before — not a perfect world, but one where asylum seekers had a fairer shot — while the Justice Department prepares a more humane and legally defensible set of principles to guide future decision-making in asylum cases.

There is precedent for Garland to make this move. Twenty years ago, Janet Reno intervened in another asylum case, vacating a flawed Justice Department opinion and pausing the case’s consideration pending the issuance of new regulations. Eric Holder adopted a similar approach in immigration cases during the Obama administration. Garland can exercise his authority to do the same.

While this admittedly is a short-term fix, creating new regulations will take time, and the Biden administration is right to review existing rules and precedent before doing so. They’ll need to make sure these regulations comport with our laws and the commitments we made as a country when we ratified the UN Refugee Protocol.

In the interim, the administration must ensure people are not wrongly returned to persecution and torture on their watch. Attorney General Garland has the power to save lives today. He should use it.

Stephen Legomsky is a professor emeritus at the Washington University School of Law, the principal author of “Immigration and Refugee Law and Policy,” and the former Chief Counsel of U.S. Citizenship and Immigration Services in the Obama Administration.

Karen Musalo is a law professor and director of the Center for Gender & Refugee Status at U.C. Hastings, College of the Law.  She has litigated major landmark cases in gender asylum over the past 25 years, including as lead counsel in Matter of Kasinga and Matter of R-A- and co-counsel in Matter of A-B- and Matter of A-C-A-A-.