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Economy & Labor

From the archives: Her case set the precedent for the Trump administration. Now she’s been granted asylum

by Tanvi Misra July 15, 2021

A 40-year-old domestic abuse survivor from El Salvador learned Wednesday that the immigration court review board approved the asylum application she filed seven years ago. Hers is no ordinary case: It was handpicked by the Trump administration to set precedent narrowing asylum prospects for migrants around the world fleeing gender-based violence. 

“I didn’t totally understand at first what my case meant, but with time and with my attorneys’ help, I came to see that they used my case as a foundation,” A.B., identified only by her initials for her safety, told The Fuller Project in Spanish through a translator. “So many women have died at the hands of their ex-partner. They are not here now to tell their stories of what they lived through.”

The trajectory of this case, little known outside of immigration circles, reveals the extent to which top political appointees in former President Donald Trump’s administration controlled life-and-death immigration court decisions. The policy shift under President Joe Biden, which made this week’s decision possible, is among multiple reversals of Trump-era policies the current administration is pursuing, and sets the stage for more permanent legal and policy changes that could be more favorable to survivors knocking at the doors of the United States.

In June, Attorney General Merrick Garland vacated a 2018 decision in this case, written by Jeff Sessions when he led the Justice Department. Sessions’ decision in A.B.’s case set precedent, closing the door to asylum for thousands of migrants across the world.

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Sessions published that decision just a few months after he announced the highly publicized, widely criticized policy that resulted in family separations at the U.S.-Mexico border. The decision in the “Matter of A-B-,” as it is called in court documents, was a quieter, more technical move, but significant nonetheless: It was the first of many targeted blows to asylum the Trump administration took.

When Attorney General Merrick Garland reversed that decision last month, it had immediate effects, but whether it will usher in long-term changes in the asylum process remains unclear. The DOJ’s memo from June notes that regulations are still in the works that will clarify the conditions under which migrants facing violence from non-state actors in their home countries could be protected under United States asylum law. (At the time of this publishing, the White House had not responded to The Fuller Project’s questions about when it will roll out the longer-term changes. Nor did the DOJ agency overseeing immigration courts respond to an email requesting comment.)

In a way, this is déjà vu. The same questions had come up in a separate asylum matter in early 2000s, and the Justice Department planned then to release regulations at that time as well. But they never took effect. But this time, the administration has signalled a bit more resolve to get the regulations done, at least on paper, said Aaron Reichlin-Melnick, a policy analyst at the advocacy group American Immigration Council. 

“One can hope that we will see in the fall these regulations proposed to expand access to asylum for victims of gender-based violence — and this time, those regulations will actually go into effect,” said Reichlin-Melnick. “If that’s the case, then this chapter in the saga, in the ‘Matter of A-B-,’ is clearing the last blockade before the new and better law goes into effect.”

In its essence, A.B.’s case was not terribly unusual, but the details of how it ended up on Sessions’ desk reveal just how involved the Trump administration’s Justice Department officials were in the asylum process of this one woman. 

For 15 years, in El Salvador, A.B. suffered horrific violence at the hands of her husband: He beat her in front of her children, raped her routinely, and often threatened her life. Her third child was born as a result of a rape, she recounted in a video human rights groups and her lawyers made in 2019. She found police protection flimsy and unreliable, and in 2013, when she filed for divorce, the threats continued. So a year later, she fled to America.  

Did these experiences, horrific as they were, qualify A.B. for asylum? That became one of the central questions in her immigration case. U.S. asylum law, based on language the United Nations set after World War II, covers people who demonstrate that they are “unable or unwilling” to return to their country due to “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Did A.B., as a Salvadoran domestic abuse survivor, belong to a “particular social group”?

In 2016, the Board of Immigration Appeals (BIA), the appellate body of the immigration court, ruled that she did, based on a 2014 precedent. The BIA handed that decision down to the assigned immigration judge, Stuart V. Couch, with orders to grant her asylum once A.B.’s background checks came through. But instead, Couch—an immigration judge with an asylum denial rate of over 93 percent—punted the case right back to the board. An amicus brief written by former immigration judges, experts, and other practitioners later criticized this move, calling it “procedurally improper.” 

Afterwards, Couch sent an email giving James McHenry, Trump’s political appointee overseeing the immigration court system, a “heads up” about his decision to send the case back up the administrative chain. 

“This [email] is an extraordinary measure … it is contrary to regulations and the practice of immigration judges to follow the orders of a higher authority,” said Blaine Bookey, legal director at the Center for Gender & Refugee Studies, which has represented A.B. since 2018. (Bookey’s team later cited the email, which was originally obtained by immigration lawyers though public records requests, in a motion to get Couch recused. It was denied.) 

With an over 93 percent asylum denial rate, Couch exhibited specific bias against domestic violence survivors, many immigration lawyers and advocates have argued. Nevertheless, in 2019, he was promoted (along with five other immigration judges) to the appellate board, where he remains a sitting member today. “It shows that there’s this extraordinary treatment of her case — to use her case as a vehicle to undermine protections,” Bookey said. 

I am anxiously waiting for the day that my case is finally granted because only then will I know I am completely safe from being deported back to my abuser.

— Maribel, asylum seeker

A spokesperson at the Executive Office for Immigration Review, the DOJ agency that oversees immigration courts, declined to comment specifically about Couch. The EOIR “does not comment on internal communications,” the spokesperson, who provided the information on background without giving a name, said via email. “No EOIR employee is a political employee,” the spokesperson said, adding that all judges are selected through an “open and competitive process.” The agency also did not respond to a question about whether any new measures had been taken to ensure that immigration courts function independent of politics. 

In 2018, before the BIA formally took A.B.’s case back from Couch, then Attorney General Sessions stepped in. Using a special authority infrequently used before the Trump administration, Sessions handpicked “Matter of A-B-” as a case he would decide himself, single-handedly reshaping the landscape of asylum law. 

Even the Department of Homeland Security disagreed with Sessions’ move, noting in a legal brief that it did “not appear to be in the best posture” for the attorney general’s review and that Couch “did not act within his authority” when he returned it to the appellate division. 

Still, Sessions noted in his final decision in “Matter of A-B-” that “generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum” — creating a new precedent. 

“I felt like I was the butt of a joke,” said A.B.  

And the Sessions decision affected many asylum-seekers beyond A.B. An analysis of fiscal year 2019 immigration court data by the Transactional Records Access Clearinghouse, a transparency and research group at Syracuse University, found that asylum denial rates climbed up overall after this decision. Around 64,000 cases, or 23 percent of total cases immigration judges decided in fiscal year 2019, involved claims for asylum, and about 69 percent of these cases ended in denials that year, according to TRAC. 

It’s hard to say how many asylum cases involve issues similar to A.-B.’s because of lack of public data, but between 2017 and 2019, CGRS alone assisted in 7500 asylum cases from Central America, out of which over half — 56 percent — were domestic survivor claims, and 35 percent involved other types of gender-based and sexual violence. 

“So, for the Trump administration, ‘Matter of A-B-’ represented the first attempt to redefine what it means to be an asylum seeker in a way that would reduce the number of successful claims to protection,” said Reichlin-Melnick. It was “the first attempt to set longer-term policy to deliberately reduce the number of people who could win asylum.”

Shortly after Garland’s decision in “Matter of A-B-” came his reversal of another consequential immigration decision, “Matter of Castro-Tum,” which was also scrutinized for procedural irregularities and criticized as a tool for the Trump administration to widen the deportation dragnet. That reversal comes just one day after A.B. learned of her asylum approval.

Given the changing climate, many asylum seekers like A.B. are hoping for a second shot at refuge. Maribel, who asked to be identified only by her first name, came to the U.S. from Honduras with her four children in the same year as A.B. She, too, told the court that she was subjected to violence and rape by her former partner, a member of the transnational gang MS-13 — but was denied asylum. 

Now Maribel, a client and member of the Asylum Seeker Advocacy Project (ASAP), is pushing for a new hearing in her case. “I am anxiously waiting for the day that my case is finally granted because only then will I know I am completely safe from being deported back to my abuser,” she told The Fuller Project through her lawyers at ASAP.

Her lawyers say Garland’s decision is just the first step toward justice. “The administration needs to make it easier for people who lost their cases because of the bad law to reopen those cases,” said Leidy Perez-Davis, a senior policy and immigration counsel at ASAP. The DOJ could easily issue a memo instructing immigration judges to reconsider cases that were denied under “Matter of A-B-”, then issue more formal regulations that stop the deportations of such migrants, Perez-Davis added. 

Advocates are also using the momentum around this case to push for bigger picture changes. “As other countries already have, the United States should amend its law to expressly recognize gender-based persecution as a basis for asylum,” wrote Jamie Gorelick, a partner at Wilmer Hale, and Layli Miller-Muro, founder and CEO of the Tahirih Justice Center, in a Washington Post op-ed arguing for Congress to update the Refugee Act.

Reichlin-Melnick believes the Biden Justice Department should also take steps to establish a stronger firewall between judges and political appointees. “While we have long argued that the court should be insulated from politics, that doesn’t necessarily mean that actions to redress the Trump administration’s polarization of the courts are off the table,” he said. 

With her asylum now approved after a seven-year struggle, A.B., who lives in a Southern town with a new partner and works as a house cleaner, finally feels safe, she says. But she cries when she talks about her three children, who are still in El Salvador. Her second son turned 21 in June, and her daughter now has two daughters of her own. “They’re my granddaughters because they are the daughters of my daughter. But I don’t know them in person,” she said. She prays that she can reunite with her family in the future “away from that violent country” she used to call home, she said. “Because I know that they suffer as well.” 

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