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This Salvadoran Woman Is At The Center Of The Attorney General's Asylum Crackdown

May 22, 2018
Originally published on May 26, 2018 12:06 am

Attorney General Jeff Sessions is stirring panic in immigrant communities by moving to limit who can get asylum in the United States. Perhaps no one is more alarmed than one Salvadoran woman living in the Carolinas.

She is known only by her initials in immigration court papers, so her lawyers call her Ms. A.B. She fled to the U.S. four years ago, after enduring more than a decade of domestic abuse in her home country, and requested asylum here.

Now Sessions has personally intervened in her case, questioning whether she and other crime victims deserve protection and a path to American citizenship. The attorney general has been highly critical of the asylum system in recent months.

"I have no doubt that many of those crossing our border illegally are leaving behind difficult situations," Sessions said at a news conference in San Diego earlier this month. "But we cannot take everyone on this planet who is in a difficult situation."

Immigration attorneys across the country are watching Ms. A.B.'s case closely. They worry that Sessions is trying to roll back years of case law that expanded who gets asylum in the U.S. — and that he's using her asylum petition to do it.

Ms. A.B. is speaking out publicly for the first time, in an interview with NPR. She asked that we not use her full name or say exactly where she is living because she is still afraid her ex-husband might find her.

"In El Salvador," she said in Spanish through an interpreter, "there's no protection for women. Anyone who's been there knows this."

Ms. A.B. said she had heard Sessions' name on the news. But she didn't really know who he was until he picked her case to review. Since then, she has learned a lot more about the attorney general.

She knows that he oversees the nation's immigration courts. That he has the power to intervene in individual cases, and to set precedent that can affect all asylum-seekers. And that, for some reason, he has singled out her case from the thousands of asylum claims filed every year.

"He beat me a lot"

We met Ms. A.B at a double-wide trailer framed by tall pine trees. She shares the house with another immigrant from El Salvador, the only person she knew in the U.S. before she moved here.

They've made their backyard into a little corner of El Salvador. There's an outdoor shelter called a champa, with hammocks and a fire pit. Chickens roam free around a henhouse. She says it all reminds her of the homeland she fled to get away from her abusive ex-husband.

"The violence started around 1999," Ms. A.B. said. He hit her with beer bottles, she said, and held a gun to her head.

"I remember when I was pregnant with my second child, he beat me a lot," she said, fighting back tears. "He threatened to hang me from the roof. And I got down and covered my stomach, and he started kicking me in the back."

When her children were older, Ms. A.B. moved to another part of El Salvador. But her husband found her, she says, and raped her.

"El Salvador is a small place," she said. "I used to go to the police, but they didn't do anything."

Finally, Ms. A.B. traveled north, crossing the border illegally into Texas. She has been allowed to stay in the U.S. while her asylum case is pending.

Ms. A.B.'s case wound up before immigration Judge V. Stuart Couch in North Carolina, who has become well-known for rejecting the vast majority of asylum claims he hears. Couch wrote that the abuse Ms. A.B. described seemed "criminal" but decided that wasn't enough to give her asylum.

She appealed, and won. Still, the North Carolina judge hasn't granted her asylum. And now Sessions is intervening.

It's not clear why Sessions picked Ms. A.B.'s case. The Justice Department declined to comment.

But critics say it's clear Sessions wants to curtail asylum as part of the Trump administration's broader immigration crackdown.

"It's a blind spot about women, and women's human rights," said Karen Musalo, one of Ms. A.B.'s lawyers. She directs the Center for Gender & Refugee Studies at the University of California Hastings College of the Law. "And kind of a fundamental misunderstanding about what human rights means," she said.

Who should get asylum

Ms. A.B.'s case is the latest turn in a long-running debate over who should get asylum in the United States. Over more than a half-century, immigration lawyers pushed to expand the boundaries.

To understand how the U.S. asylum system works, you have to go all the way back to World War II.

Millions of people were displaced after the war, including Jews who fled the Holocaust and political outcasts who escaped from behind the Iron Curtain. Many of those refugees couldn't return home. So European diplomats gathered in Geneva in 1951 to figure out how to help them — and to establish an international framework for future refugees.

"There was certainly a very strong humanitarian impulse behind it," said David Martin, a former U.S. immigration official and a professor emeritus at the University of Virginia School of Law. "But the drafters of the treaty said, we don't want to write a blank check."

The delegates in Geneva agreed that asylum should be reserved for people facing persecution based on race, religion, nationality or political opinion. Then, at the last minute, Martin says, a delegate from the Netherlands suggested one more factor: membership in a "particular social group."

"He was concerned that some victims might not fall within the four factors that already were listed," Martin said. "And that's about all we know about it. No real guidance as to who would be included."

So "particular social group" was open to interpretation. And that would turn out to be important when the United States and other countries adopted this legal framework decades later.

Over the years, immigration lawyers in the U.S. have argued that all sorts of people deserve asylum as persecuted members of a "particular social group."

"There was a beginning of a shift, and a new awareness that women could get asylum, and that rape was a form of harm that constituted persecution," said Deborah Anker, a professor at Harvard Law School and the founding director of the Harvard Immigration Refugee Clinical program.

One of the landmark cases concerned the asylum claim of a woman from Guatemala named Rody Alvarado. She says her husband beat her repeatedly for a decade.

"It was a form of torture," Alvarado said in Spanish through an interpreter. "It was a matter of life and death. If I stayed, he would have killed me."

Alvarado fled to the U.S. in 1995 and applied for asylum in U.S. immigration court. Initially, she won her case, but the government appealed. That's when Alvarado started working with Musalo, the same lawyer who represents Ms. A.B. today.

"You know this is clearly a situation deserving of protection," Musalo said, "when you have someone who beats you unconscious, who throws machetes across the room at you. When you have someone who wakes you up in the middle of the night with a knife at your throat, and tells you that he can kill you, and nobody would care. And then when you go to the police repeatedly and they laugh at you, and you go to the court and the court takes no action."

Musalo has argued in both cases that these women deserve asylum because they've been persecuted by their husbands and ignored by their own governments.

At first, some courts rejected this theory. In Alvarado's case, a panel of 15 judges agreed that the abuse she had suffered was brutal. But they ruled the system of asylum was not intended to protect survivors of domestic violence.

"It's a grave, pervasive, chronic international problem. But this is the wrong tool to solve that problem," said Michael Hethmon, a lawyer at the Immigration Reform Law Institute, which favors lower levels of immigration.

While Musalo and other lawyers argued that survivors of domestic violence and other sexual and gender-based crimes deserve asylum protections, Hethmon was on the other side, writing briefs of his own.

"Asylum was never designed to deal with those problems," Hethmon said. "Asylum is not some sort of global make-a-wish foundation."

But Musalo and other immigrants' rights lawyers didn't give up. They kept returning to the phrase "particular social group" and insisting that domestic violence survivors do fall into that category.

Gradually, that argument won out. And over the years, immigration lawyers have successfully argued for an even more expansive interpretation of asylum law — one that provides protection for women fleeing female genital mutilation, and people facing persecution for being gay or transgender.

For a while, the law seemed settled.

Sessions steps in

Last fall, Sessions gave a speech in Falls Church, Va., at the Executive Office for Immigration Review, which oversees the nation's immigration judges. And Sessions made clear that he favors a strict interpretation of the language crafted at the 1951 Refugee Convention.

"Our asylum laws are meant to protect those who because of characteristics like race, religion, nationality, or political opinions cannot find protection in their home countries," he said. "That's what it's for. They were never intended to provide asylum to all those who fear generalized violence, crime, personal vendettas, or lack of job prospects. Yet vague, insubstantial, and subjective claims have swamped our system."

Sessions and other immigration hard-liners point to a sharp increase in asylum claims over the past decade.

"We're concerned about too many people getting asylum," said Jan Ting, a former immigration official who teaches at Temple University Beasley School of Law.

"I think it's a legitimate question to ask," Ting said. "Wait a minute, do we really want to say everyone who has experienced violence at the hands of a domestic partner is entitled to asylum in the United States?"

But immigrant advocates say that's an oversimplification. They say these claims are still difficult to win, because asylum-seekers must demonstrate that the abuse rises to the level of persecution and that the governments in their home countries can't or won't help.

They say asylum-seekers aren't just in a "difficult situation," as Sessions put it.

"Characterizing the types of harms that Central Americans are fleeing as 'difficult' is an incredible understatement," said Blaine Bookey, one of Ms. A.B.'s lawyers at the Center for Gender & Refugee Studies. "People are fleeing for their lives."

If there is an increase in asylum claims from the "Northern Triangle" countries of El Salvador, Honduras and Guatemala, Musalo argues, it's because women are trying to escape a region where the United Nations has raised concerns about high levels of violence against women and children.

"These are three countries that have the highest homicide rates in the world and the highest femicide rates in the world, and high levels of violence and killings of children and adolescents," said Musalo.

"It took us a long struggle to finally get it accepted" that survivors of domestic violence can get asylum, Musalo said. "And it's concerning that this attorney general wants to revisit that."

Relief for Rody Alvarado

No matter what happens, Alvarado can stay in the U.S. She was granted asylum in 2009 — 14 years after filing her initial petition.

"I felt an immense happiness," she said. "I felt, far far away from that world of suffering."

Alvarado became a U.S. citizen last year. Her story has become an inspiration for other women, women like Ms. A.B., whose own asylum claim is now in doubt.

"I was very confused, very sad," Ms. A.B. said, because Judge Couch has continued to deny her asylum claim, insisting she doesn't qualify even after she won her appeal. "I felt like they are playing with me," she said. "Like I'm a child who was given candy, only to have it taken away."

Now her case is in the hands of Sessions. And what he decides could have big implications — not just for Ms. A.B., but for thousands of other asylum-seekers, too.

Richard Gonzales contributed to this report.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

AUDIE CORNISH, HOST:

Who should get asylum in the United States? The thinking on that question has been shifting for more than half a century. In many ways, it's become easier for some people, like domestic violence survivors, to get asylum. Attorney General Jeff Sessions wants to change that. He's moving to limit who can get protection and a path to American citizenship. NPR's Joel Rose has the story.

JOEL ROSE, BYLINE: To understand how the U.S. asylum system works, you have to turn back the clock all the way to World War II.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: They're known as displaced persons. And not until they reach their various countries will there again be order in Europe.

ROSE: Millions of refugees were displaced by the war and couldn't return home - Jews who fled the Holocaust and political outcasts who escaped from behind the Iron Curtain. So European diplomats got together in Geneva in 1951 to figure out how to help them and to establish an international framework for future refugees.

DAVID MARTIN: There was certainly a very strong humanitarian impulse behind it. But the drafters of the treaty said, we don't want to write a blank check.

ROSE: David Martin is an immigration expert at the University of Virginia School of Law. Martin says the delegates agreed that asylum should be reserved for people facing persecution based on four factors - race, religion, nationality or political opinion. Then at the last minute, Martin says, a delegate from the Netherlands added one more category to the list - people who fear persecution because they belong to a particular social group.

MARTIN: He was concerned that some victims might not fall within the four factors that already were listed. And that's about all we know about it - no real guidance as to who would be included.

ROSE: So particular social group was open to interpretation. This wasn't an issue when the United States adopted the asylum language crafted in Geneva, but it would turn out to be hugely important. Years later, immigration lawyers started to argue that all sorts of people deserve asylum as persecuted members of a particular social group - people like Rody Alvarado.

KAREN MUSALO: OK, Rody (laughter).

ROSE: Alvarado and her lawyer Karen Musalo chat like old friends because they are. They met when Alvarado left Guatemala in the mid-1990s.

RODY ALVARADO: (Speaking Spanish).

ROSE: Alvarado was fleeing from her husband. She says he beat her for ten years with machetes, with his fists. It was torture, she says.

ALVARADO: (Speaking Spanish).

ROSE: "It was a matter of life and death," she says. "If I stayed, he would have killed me." Alvarado applied for asylum in U.S. immigration court. Back then, her lawyer Karen Musalo had just founded the Center for Gender and Refugee Studies in San Francisco. Musalo argued that women like Alvarado deserve asylum because they've been persecuted by their husbands and ignored by their own governments.

MUSALO: When you have someone who wakes you up in the middle of the night with a knife at your throat and tells you that he can kill you and nobody would care - and then when you go to the police repeatedly, and they laugh at you, this is clearly a situation deserving of protection.

ROSE: At first, some courts rejected this theory. In Alvarado's case, immigration judges agreed that her story was brutal, but they ruled that the system of asylum was not intended to protect survivors of domestic violence.

MICHAEL HETHMON: It's a grave, pervasive, chronic international problem, but this is the wrong tool to solve that problem.

ROSE: Michael Hethmon is a lawyer at the Immigration Reform Law Institute. He was on the opposing side, writing briefs against the stand Karen Musalo was taking.

HETHMON: Asylum is not some sort of global Make-A-Wish Foundation.

ROSE: But Alvarado and Musalo didn't give up. Musalo kept pointing to that phrase particular social group and insisted that domestic violence survivors do fall into that category. Eventually, her argument won out. And immigration lawyers have successfully argued for an even broader interpretation of asylum law to include women fleeing genital mutilation, for instance, and people facing persecution for being gay. For a while, this seemed settled - that is until Jeff Sessions became the attorney general.

(SOUNDBITE OF ARCHIVED RECORDING)

JEFF SESSIONS: Vague, insubstantial and subjective claims have swamped our system.

ROSE: This is Sessions speaking to immigration judges last year. The attorney general favors a strict interpretation of the language crafted back in Geneva in 1951. Sessions emphasizes that asylum laws protect people based on certain characteristics - race, religion, nationality or political opinion.

(SOUNDBITE OF ARCHIVED RECORDING)

SESSIONS: That's what it's for. They were never intended to provide asylum to all those who fear generalized violence, crime, personal vendettas or lack of job prospects.

ROSE: Sessions is moving to limit who can get asylum, and he's questioning whether domestic violence survivors and other crime victims should qualify. Lawyers like Karen Musalo are furious.

MUSALO: It's a blind spot about women and women's human rights and kind of a fundamental misunderstanding about who fits within the refugee definition.

ROSE: No matter what happens, Rody Alvarado can stay in the U.S. She was granted asylum in 2009.

ALVARADO: (Speaking Spanish).

ROSE: "I felt an immense happiness," she says. "I felt far, far away from that world of suffering." Meanwhile, many women in Central America are still suffering. The United Nations says there's a hidden refugee crisis there driven largely by women fleeing from violent relationships. Joel Rose, NPR News. Transcript provided by NPR, Copyright NPR.