California Immigration Lawyers Watching Closely as Sessions Examines Asylum Rules

Attorney General Jeff Sessions has recently been inquiring from lawyers across the country about the ins and outs of seeking asylum—an indication that he may be considering reworking guidelines. Photo by Gage SkidmoreCC BY-SA 2.0

California immigration advocates are concerned about two recent actions by U.S. Attorney General Jeff Sessions that could make it harder for foreigners fleeing violent situations to get asylum.

In the last week, Sessions has been inquiring from lawyers across the country about the ins and outs of seeking asylum—an indication that he may be considering reworking guidelines.

The chief lawyer asked colleagues for their arguments about to what extent a private crime can constitute membership in a social group—one of the possible justifications for seeking asylum. He also vacated a 2014 ruling from the Board of Immigration Appeals that guaranteed immigrants seeking asylum a court hearing before their claims are rejected.

Asylum is only granted to immigrants who can prove that their unwillingness to return home is because of persecution on account of race, religion, nationality, political opinion or membership in a social group. A person who is in great danger but can’t show how that danger is linked to one of those reasons cannot be granted asylum.

In fiscal year 2016, California immigration courts completed 12,804 asylum cases, according to the U.S. Department of Justice Executive Office of Immigration Review. These are just defensive asylum cases, in which deportation proceedings have already begun. The top nationalities granted asylum are China, El Salvador, Guatemala, Honduras and Mexico.

Affirmative asylum cases, which are initiated by the immigrant, are handled by the Department of Homeland Security’s U.S. Citizenship and Immigration Services. The department’s records show that between 2,000 and 2,500 applications for asylum are filed at California offices each month.

Morgan Weibel, executive director of the San Francisco Bay Area office of the Tahirih Justice Center, said she is particularly concerned that women and children fleeing domestic violence could be harmed by Sessions’ actions. She fears that Sessions may interpret domestic violence as a personal crime, not related to a social group, and thus not qualifying for asylum status.

But Weibel said domestic violence is a systemic issue. “It’s not just one man hurting one woman—it’s an entire system enabling and condoning and allowing that one actor to do that to that one woman,” she said.

In some countries, the government won’t take action to stop domestic violence.

“Sadly, we know that when the violence is severe enough to rise to the level of persecution, and victims can’t find safety, their lives are at great risk,” Weibel said. “Right now, the attorney general is signaling that he may reconsider whether we as a nation are willing to stand up for what is right and offer a beacon of hope to those women with nowhere else to go,” she said.

President Trump made immigration reform a central point of his election campaign and Sessions has raised concern about the backlog of 600,000 cases in immigration courts across the country. He complained last fall about fraud and abuse in asylum applications.

“As this system becomes overloaded with fake claims, it cannot deal effectively with just claims,” he said in an October talk.

He said undocumented immigrants arrested at the border are falsely claiming that they fear returning to their country just so they can get a court hearing and buy more time in the country.

But immigration advocates say that many of the claims are valid and tightening the regulations may result in innocent people being harmed.

After an Obama administration ruling in 2009 allowed most undocumented immigrants to be released into the U.S. after they passed a “credible fear test,” claims of fear skyrocketed from 5,000 claims in 2009 to 94,000 in 2016, Sessions said. To pass the credible fear test, there had to be a “significant possibility,” provable at a court hearing, that they have been harmed or could be harmed because of their race, religion, nationality, membership in a social group or political opinion.

Jesse Lloyd, an Oakland attorney and member of the American Immigration Lawyers Association Northern California chapter, said Sessions’ actions are “ominous signs of things to come.” But he cautioned that nothing has been decided yet and will take some time before things are sorted out. The impact of any decision will be felt by people applying for asylum in a year or so rather than those going through the process now, he said.

Those in California at least can take comfort that the issues may ultimately end up in the Ninth Circuit United States Court of Appeals, which is generally more liberal than the rest of the country, Lloyd said.

“I would much rather have someone caught on the border in California than in Texas,” he said.

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