In June 2018, former Attorney General Jeff Sessions overturned an immigration court’s decision and issued a precedential decision that makes it even more difficult for asylum seekers to obtain asylum protection in the United States by citing fear of domestic abuse. This is also the case for asylum seekers who make asylum claims based on their fear of gang violence.
The Attorney General has authority over all immigration courts and delivered a speech, which was followed by a USCIS memo, that outlined when USCIS officers should use their discretion in asylum cases.
If a foreign national is being persecuted because of his or her race, religion, nationality, membership in a particular social group, or political opinion, then he or she may apply for asylum.
An applicant can apply for asylum without having to pay a government filing fee, but the process can take months or even years. As a result, foreign nationals can enter the United States illegally and remain in the United States while their asylum case is pending. This “loophole” in the immigration system has often been a criticism of the Trump Administration.
Immigration officers and judges often struggle with defining “membership in a particular social group” and the definition as changed over time. An Obama-era precedent granted asylum to a woman based on her membership to a group that feared returning home due to domestic violence.
Asylum is becoming increasingly difficult to obtain (see USCIS and immigration court statistics), and now Mr. Sessions believes the Obama-era interpretation defines membership in a particular social group too broadly and misconstrues the proper legal application.
The Attorney General’s intervention is not uncommon and his predecessors as far back as the 1990s “have weighed in on the use of the particular social group in asylum cases.” While not unprecedented, the intervention does make it much more difficult for individuals in this context to obtain asylum due to persecution from private actors.