Re-opening the Path to Asylum for Domestic Violence Survivors and Families

By Kaitlyn O’Shaughnessy, AIUSA Women’s Rights Coordination Group

On Wednesday, June 16, 2021, U.S. Attorney General Garland overruled two prior precedent decisions which will ease the asylum process for women, survivors of domestic violence, and families, restoring a part of U.S. asylum law to its pre-Trump state.

Attorney General Garland overruled Matter of A-B- 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”). In Matter of A-B- I, Attorney General Sessions overruled a prior precedent case which had recognized certain survivors of domestic violence as “members of a particular social group” for purposes of an asylum claim. Matter of A-B largely deprived domestic violence survivors of access to asylum for the past three years. Now that Attorney General Garland has vacated Matter of A-B- and restored the law to its previous state, survivors of domestic violence are again eligible for asylum protection in the United States.

Access to asylum is essential to keeping women and survivors of domestic violence safe. In many countries, authorities cannot or choose not to protect such individuals, and a survivor has nowhere to turn for protection inside her country. For the women and domestic violence survivors who seek asylum in the United States, they know it is their only option to stay alive.

This decision brings the U.S. back in line with international human rights law and precedent, particularly as it applies to the protection of women.

Attorney General Garland also overruled Matter of L-E-A- (27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”)). In that case, Attorney General Barr sought to make it more difficult for family members of individuals being threatened or harmed to win asylum based on the “membership in a particular social group” of one’s nuclear family. This decision flew in the face of existing precedent from the Board of Immigration Appeals and every Federal Circuit Court to consider the question, all of whom had agreed that “family” or “kinship ties” are “prototypical” particular social groups for the purposes of establishing a claim for asylum. The Attorney General’s decision to overrule Matter of L-E-A- II re-affirms that family ties can form the basis of a claim for asylum.

However, these decisions do not completely resolve who is eligible for asylum. President Biden signed an executive order in February instructing the Justice Department and the Department of Homeland Security to issue rules “addressing the circumstances in which a person should be considered a member of a ‘particular social group,’” such as someone fleeing domestic violence. Those rules have yet to be released. We must continue to encourage our representatives to support safe, humane, immigration reform, which includes ending family detention and transforming the current immigration detention system. For further actions to take, check out Amnesty International USA’s campaign to free people from ICE detention.