On June 11, 2018, Attorney General (AG) Sessions issued a dramatic decision substantially limiting asylum claims filed by domestic violence victims. He also indicated that there should be similar restrictions for victims of gang violence. This well-publicized Matter of A-B- decision reversed a ruling by the Board of Immigration Appeals granting asylum relief to a woman from El Salvador who substantiated that she had been subjected to repeated physical, emotional and sexual abuse in her country by her ex-husband.
At the end of his opinion, AG Sessions stated that “aliens seeking an improved quality of life should seek legal work authorization and residency status, instead of illegally entering the United States and claiming asylum.” He did not articulate exactly how an impoverished woman fleeing an abusive household from a Central American country could go about accomplishing U.S. residency status. Of course, the short answer is that our Immigration laws do not really provide such a vehicle for folks in Ms. A-B-s situation. In a footnote, Sessions suggested that one who illegally enters the country could be denied asylum as a matter of discretion. This pronouncement is not consistent with our long-standing precedent that one’s manner of entry to the United States should generally not be a factor for asylum purposes.
Five months after this A-B- decision, on November 9, 2018, President Trump issued a Proclamation disallowing asylum claims for those who illegally enter the United States at the Southern border. This is in direct contravention of our asylum statute, INA § 208, which states that an alien present in the U.S., “irrespective of his or her status,” may apply for asylum. Fortunately, a group of litigation lawyers immediately reacted and obtained an injunction in a federal district court, overriding the President’s effort to change the law, as written by Congress. After the lower court refused the government’s request to stay its temporary restraining order, the Ninth Circuit Court of Appeals affirmed the District Court’s orders in the case of East Bay Sanctuary Covenant v. Trump, on December 7, 2018.
In the meantime, several lawyers filed a challenge to the A-B- decision in the U.S. District Court in Washington, DC. On December 19, 2018, District Judge Emmet G. Sullivan, in the case of Grace v. Whitaker, held that Sessions’ A-B- decision was arbitrary and capricious and therefore could not be applied against asylum applicants who assert believable accounts of domestic or gang violence and who seek positive “credible fear” rulings in the context of expedited removal proceedings at or near the border. Such a credible fear ruling is necessary for applicants to pursue asylum relief in the Immigration Courts.
For those who believe that the Executive branch should not be arbitrarily overruling acts of Congress and disregarding judicial precedents, which are often based on many years of careful consideration of the legal principles involved, the firm and prompt action by the respective federal courts in California and our nation’s Capital is a refreshing reminder of the value of the separation of powers, which was such an important principle for our Founding Fathers in drafting our Constitution.