Sessions’ Decision on Solid Legal Ground, But Asylum Is a Moral Question Also

Attorney General Jeff Sessions made a significant change this week to how immigration courts will evaluate requests for asylum. His legal logic is reasonable, but that logic shouldn’t be the basis for making asylum decisions. You can read news coverage from CNN here, and the New York Times here.

 

First, let’s clarify what Sessions did. According to U.S. and international law, people must be granted asylum if they have a credible fear of persecution in their home country based on their race, religion, nationality, political opinion, or membership in a social group. The idea here is that asylum is not to assist just anyone who needs to move to a new country, but only people threatened specifically with persecution for the above reasons.

 

Of the five, it’s the ‘membership in a social group’ clause that has attracted all the attention. Obviously, a ‘social group’ is hard to define. In 2014 a U.S. Board of Appeals ruled that women who are unable to flee abusive partners constitute a social group. They are in their predicament due to both their gender and societal norms that limit their options, so that’s enough to make them a disadvantaged group whose members have access to asylum.

 

Sessions overruled that decision. He says that domestic violence is a private crime, not a form of persecution, so anyone fleeing domestic violence or a criminal gang will not be able to use that as the basis for an asylum claim. After Sessions’ ruling, in order to claim asylum because of fear of private harm (i.e. harm threatened by private individuals or gangs as opposed to the government) an applicant will have to show three things:

 

  1. Membership in a social group that exists independently of the alleged harm. In domestic violence cases that would be virtually impossible.
  2. Demonstrate that the harm they are fleeing is going to be inflicted because of membership in that group rather than personal reasons. This again comes to exclude domestic violence, which is almost by definition personal.
  3. Show that government protection from such harm in their home country is so lacking that the harm can essentially be attributed to the government. This is the only criteria that people fleeing domestic violence or gangs may be able to meet.

Now it’s important to note that Sessions’ legal interpretation here is on sound ground. By ordinary logic, women suffering domestic abuse are not a distinct social group. They represent a cross section of the population united only by being unfortunate enough to have an abusive boyfriend or husband.

 

That’s not to say that including them in the legal definition, as the court did in 2014, is necessarily wrong. But debating this point is not the key issue. The key point is that while asylum may be a burden for the host nation, it I also a tremendous, life changing and sometimes life saving gift to the recipient. The key issue here is one of values, not legal hair splits. How many asylum seekers can the United States accept?

 

Sessions noted while announcing his decision, “Asylum was never meant to alleviate all problems, even all serious problems, that people face every day all over the world.” That’s certainly correct. It’s necessary that some people facing serious problems back home will be turned away. But let’s discuss the issue compassionately, from the perspective of how much can we reasonably do to help others. No amount of legal determinations about the definition of a social group will make so many people’s desperate need for asylum go away.

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