The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Attorney General Jeff Sessions recently issued a ruling denying asylum to female victims of domestic abuse and gang violence. His decision, which ruled against a Salvadoran woman who had been severely abused by her husband, concludes that such victims "generally" don't qualify for asylum under a federal law that grants asylum to any refugees who is "unable or unwilling to return to [her home country], and is unable or unwilling to avail . . . herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The decision overrules two prior Justice Department Board of Immigration Appeals decisions, which granted asylum to female victims of domestic abuse in Guatemala and El Salvador. Sessions' ruling is legally problematic. But, perhaps even more importantly, it highlights the arbitrary injustice of a policy that denies asylum to victims of horrible persecution as bad as that which falls within the scope of the rules.
The key legal question in the case is whether Salvadoran victims of domestic violence qualify as people with "a well-founded fear of persecution" based on their "membership in a particular social group." The phrase "particular social group" is far from precise. But, as Sessions recognizes, courts have generally defined it as a group "composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question." It should be obvious that women qualify as a group that shares "a common immutable characteristic," and that they are also a group that is "socially distinct" and "can be defined with particularity." It is true that gender is not completely immutable in an age of sex change operations. But it is surely sufficiently so to qualify under the rules. And you don't have to be a radical feminist to recognize that, in highly sexist societies like El Salvador and Guatemala, which have a "culture of machismo and family violence" (as one of the BIA decisions overruled by Sessions puts it), domestic violence against women flourishes in large part because of gender bias. And such bias helps account for the failure of the authorities to effectively curtail such abuse. Recognizing that does not require us to assume that all Guatemalan and Salvadoran men are sexist or violent, or that all law enforcement officials in those countries are misogynists, merely that such attitudes are sufficiently widespread there that they account for much of the danger faced by female victims of domestic violence.
In addition, one would have to be naive to believe that Sessions' immigration decisions are motivated by evenhanded concern for the rule of law. This is the same Jeff Sessions who has tried to impose blatantly unconstitutional conditions on federal grants in order to pressure sanctuary cities into supporting federal efforts to deport undocumented immigrants. That policy has been repeatedly struck down in court decisions by both Republican and Democratic judges. Despite his supposed zeal for policing flawed BIA decisions, I would be willing to bet that Sessions will not overturn last week's utterly ridiculous BIA ruling concluding that working as a slave laborer for a guerrilla group qualifies as providing "material support" to terrorists. That ruling is far more indefensible than those he just reversed.
But the injustice here goes far beyond details of legal reasoning, or the biases of the Trump administration. Even if we define "membership in a particular social group" more broadly than Sessions, US asylum policy still ends up excluding victims of horrible injustices. Specifically, it bars most of those who are victims of generalized injustice of oppressive regimes, as opposed to those aimed at specific groups. Consider, for instance, the victims of three of the biggest mass murders in all of human history: Mao Zedong's terror famine, which killed a record 45 million people, Stalin's famines and Gulags, and the "killing fields" of Cambodia. While some of the victims of all three were chosen based on criteria such as ethnicity, religion, or economic class, most were killed largely because they were victims of the general oppression these regimes inflicted on vast swathes of society. The same is true of current victims of massive injustice in some of the world's most oppressive governments, such as those of Cuba, North Korea, and Venezuela. Thus, President Obama's cruel decision to presumptively subject most Cuban refugees to deportation did not violate the asylum statute, because most are victims of a generally oppressive regime, not people specifically targeted based on membership in a social group.
Yet there is no good reason why such people are any less deserving of refuge than those whose persecution is based on group membership. A person killed in an indiscriminate act of mass murder or deliberately created famine is no less a victim than one who was targeted for being a member of some "social group." Even if the former are not targeted based on an "immutable" characteristic, they are still victims of massive injustice and most still have little if any opportunity to avoid oppression, other than by fleeing the country.
Today, we like to condemn the immigration policies of the 1930s, which excluded many German Jews fleeing the Nazis. We do so even though the Holocaust had not yet begun, and German Jews of that period were "merely" subject to severe persecution falling short of mass murder. Yet many aspects of our current immigration policy are little better than those of the Roosevelt Administration back then.
Defenders of the status quo can point out that the US is not responsible for oppression in Cuba or North Korea. The same, of course, was true for Germany's repression of Jews in the 1930s, as defenders of that era's immigration policies were happy to point out. But when we deport people back to nations where they face oppression, persecution, and sometimes even death, we do more than simply turn a blind eye to injustices perpetrated by others. In such cases, the US government knowingly and deliberately uses force to place people in harm's way. As political philosopher Michael Huemer points out, the situation is little different from one where we forcibly prevent a starving man from buying food that he needs to survive. Even if we were not responsible for the initial conditions that caused the starvation, our use of force to prevent him from escaping the situation makes us at least partly complicit in his resulting death.
Another common rationalization of the status quo is that a nation is similar to a private house or club, whose owners have the right to exclude outsiders for any reason they want. This theory, too, justifies not only current policy, but also the exclusion of German Jews in the 1930s, as well as pretty much any deportation of migrants or refugees. The analogy between nations and houses or clubs has many other flaws, as well. At the very least, using this theory to justify excluding people who face severe oppression or death takes it very far indeed.
It is important to condemn the misdeeds of Trump and Jeff Sessions, as many are now doing. But it is also important recognize that many of the grave injustices in our immigration policy predate their rise to power, and go far deeper than the flaws of any one administration.