On Monday, Attorney General Jeff Sessions overturned a precedent that made women fleeing domestic violence situations eligible to apply for asylum.
In 2005, Aminta Cifuentes, who suffered weekly beatings from her husband, fled from Guatemala to the United States.
“If I had stayed there, he would have killed me,” she told the Arizona Republic.
Her husband broke her nose, burned her with paint thinner and raped her. Cifuentes called the police several times but was told they could not interfere in a domestic matter, according to a court ruling. When her husband hit her in the head, leaving her bloody, police visited their home but refused to arrest him. He threatened to kill her if she called them again.
Cifuentes was finally granted asylum after nearly a decade of waiting on an appeal. The 2014 landmark decision by the Board of Immigration Appeals established clarity in a long-running debate over whether asylum can be granted on the basis of violence perpetrated in the “private” sphere, according to Karen Musalo, director for the Center for Gender & Refugee Studies at the University of California Hastings College of the Law.
Sessions reversed the precedent set by Cifuentes’s case, deciding that victims of domestic abuse and gang violence generally will not qualify for asylum under federal law.
Critics, including former immigration judges, say the unilateral decision undoes decades of carefully deliberated legal progress. For gender studies experts, such as Musalo, the move “basically throws us back to the Dark Ages, when we didn’t recognize that women’s rights were human rights.”
“If we say in the year 2018 that a woman has been beaten almost to death in a country that accepts that as almost the norm, and that we as a civilized society can deny her protection and send her to her death?” Musalo said. “I don’t see this as just an immigration issue … I see this as a women’s rights issue.”
In the Cifuentes case, the Board of Immigration Appeals noted that Guatemala has a culture of “machismo and family violence.” Spousal rape is common there and local police often fail to enforce domestic violence laws.
But Sessions rejected that reasoning.
“The prototypical refugee flees her home country because the government has persecuted her,” he wote. “An alien may suffer threats and violence in a foreign country for any number of reasons relating to her social, economic, family, or other personal circumstances. Yet the asylum statute does not provide redress for all misfortune.”
In response to Sessions’s decision, a group of 15 retired immigration judges and former members of the Board of Immigration Appeals wrote a letter calling it an “affront to the rule of law.”
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote. Courts and attorneys general have debated the definition of a “particular social group” since the mid-1990s, according to Musalo.
A series of cases led up to the Cifuentes decision. In 1996, the Board of Immigration Appeals established that women fleeing gender-based persecution could be eligible for asylum in the U.S. The case, known as Matter of Kasinga, centered on a teenager who fled her home in Togo to escape female genital cutting and a forced polygamous marriage. Musalo was the lead attorney in the case; it held that fear of female genital cutting could be used as a basis for asylum.
Musalo also represented Rody Alvarado, a Guatemalan woman who fled extreme domestic abuse and, in 2009, won an important asylum case after a 14-year legal fight. Her victory broke ground for other women seeking asylum on the basis of domestic violence.
After years of incremental decisions, the Board of Immigration Appeals published its first precedent-setting opinion in the 2014 Cifuentes case, known as Matter of A-R-C-G.
“I actually thought that finally we had made some progress,” Musalo said. Although the impact wasn’t quite as pronounced as many experts had hoped, it was a step for women fleeing gender-based violence in Latin America and other parts of the world.
Musalo says Sessions is trying to undo all this work at a particularly monumental time for gender equality in the U.S. and worldwide.
“We’ve gone too far in society with the #MeToo movement and all of the other advances in women’s rights to accept this principle,” she said.
“It shows that there are these deeply entrenched attitudes toward gender and gender equality,” she added. “There are always those forces that are sort of the dying gasp of wanting to hold on to the way things were.”