Published June 11, 2018 


Foreign nationals are eligible to be accorded asylum status in the U.S. if they fear return to their home countries due to:  a) persecution they face on account of their race, religion, political belief or social group AND b) the persecution is carried out by their government or government agents, or groups the government cannot or will not control.

In recent days, U.S. Attorney General Jeff Sessions, in overturning an Obama administration ruling, issued an order limiting the circumstances under which members of particular “social groups,” including domestic violence victims and some LGBTQ claimants, have a basis to file for asylum.   The order was issued in light of Trump administration concerns that Central and South American gangs are attempting to use this basis of asylum to infiltrate the U.S.   Immigration experts and rights advocates have countered that such allegations are merely scare tactics to appease President Trump’s electoral base and exaggerate the real dangers, if any, of the policies of previous administrations.

As the official with the highest decisionmaking authority and oversight at the Board of Immigration Appeals (BIA), AG Sessions vacated a 2016 BIA decision, stating that individuals from countries that have trouble “effectively policing” certain crimes or who are members of social groups that are more likely to be targeted by crimes cannot be approved for asylum on that basis alone.   Sessions further ruled that asylum seekers seeking to prove they have been persecuted by a non-governmental actor must present evidence that their government either “condoned the private actions or demonstrated an inability to protect the victims.”  In other words, the order is attempting to make the burden of proof next to impossible to meet.

Sessions further stated: “(g)enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” Sessions wrote in the decision. “While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.”

Among the concerns he cited in issuing his ruling, Sessions saw the BIA’s definition of social groups to cover “married women in Guatemala who are unable to leave their relationship” as misguided and without legal basis. “Our nation’s immigration laws provide for asylum to be granted to individuals who have been persecuted, or who have a well-founded fear of persecution, on account of their membership in a ‘particular social group,’ but most victims of personal crimes do not fit this definition — no matter how vile and reprehensible the crime perpetrated against them,” he said.

Various groups have expressed concern about the recent Sessions order and its impact on protections for asylum seekers, including  Department of Homeland Security officials, immigration advocates as well as retired Immigration Judges and BIA members, indicating  that 15 years of legal precedent has wrongly been wiped away with the stroke of Sessions’ pen.


PUBLISHED June 11, 2018– “IMMIGRATION LAW FORUM” Copyright © 2018, By Law Offices of Richard Hanus, Chicago, Illinois