Sessions' Rollback Hurts LGBTQ Asylum Seekers Fleeing for Their Lives
Immigrants’ rights have been on the minds of anyone paying attention to American news outlets this month. Shameful images and recordings of crying children separated from their parents on American soil and as a result of American policies made many of us question our values and our priorities. While the immigration debate in America has simmered for generations, this month it seems to have reached a boiling point.
In a rare move earlier this month, Attorney General Jeff Sessions rolled back of years of legal precedent by personally reversing an immigration court case—a decision that will disproportionately hurt LGBTQ and women asylum seekers. In Matter of A-B-, The Attorney General ruled that persecution from gang violence or domestic violence will no longer be sufficient grounds to seek asylum in the United States.
The Immigration and Nationality Act codifies American immigration law. In order to qualify for asylum under the Act, an applicant must demonstrate, among other things, that they are unable or unwilling to return to their country of origin because they suffered past persecution or have a well-founded fear of future persecution in their country due to their “race, religion, nationality, membership in a particular social group, or political opinion.”
When LGBTQ asylum seekers are persecuted in their home country because of their sexual orientation or gender identity and seek asylum in the United States, they generally apply as members of a “particular social group.” The problem is, there is no clear legal definition of what a “social group” actually is, and asylum seekers must rely heavily on existing case law in order to make a strong argument that they qualify for protection. This makes it the most difficult asylum claim to make.
Generally, membership in a particular social group must be based on an immutable characteristic. That is, something that is unchangeable or fundamental to an applicant’s identity. Then, the applicant has to prove that they were persecuted or fear persecution based on that characteristic. For example, being gay or trans and facing targeted abuse by gangs or violent, unaccepting family members.
Enter, Jeff Sessions and Matter of A-B-.
Many LGBTQ asylum seekers come from countries where gay or trans citizens are persecuted or killed. In the United States, LGBTQ asylum seekers may have fled countries in Central America or Africa, for example, because they are being constantly threatened or physically assaulted, often within an inch of their lives.
Past case law awarded asylum to these applicants as members of a particular social group. To rule otherwise would often be sending applicants back to their certain deaths. Now, because of the Attorney General’s decision, years of precedent awarding these cases to asylum seekers has been rolled back.
It’s unclear so far what effect this decision has already had; even immigration officials and asylum officials seem unsure of how to process the Attorney General’s reversal. What is certain is that this decision has the power to affect LGBTQ asylum seekers for years to come and will likely discourage would-be asylum seekers already present in the United States from coming forward fear of being denied asylum and being sent back to dangerous living conditions.
Our continued vigilance on these issues must be unwavering. It is vital that we keep paying attention to the policy changes that tend to slip through the cracks of American consciousness as newer, immediately actionable immigration policies emerge. Many tend to read past more complicated or less immediately visible policy changes even though those policies can be the most damning to the most vulnerable among us. The Attorney General’s decision shows us that our demand for quality, humane and fair immigration laws must not stop.