Thread: Asylum Law Is Not Intended for Domestic Violence

Asylum Law Is Not Intended for Domestic Violence

By Dan Cadman on April 20, 2018



Julia Preston has written an inflammatory article for Politico: "Trump Administration Wants to Shut Door on Abused Women: To cut back on immigration, Sessions wants to remove domestic abuse as a legal justification for seeking asylum."


Preston's earlier immigration writing for the New York Times is the stuff of notoriety here at the Center for Immigration Studies, because they have always carried a bias in favor of aliens and against anyone or anything that smacks of enforcement or regulation or control, and indifference to our own native-born deprived or unemployed. (See here and here for examples). It is clear that she is carrying on in the same vein at Politico.


The basis for Preston's remarkable assertion about "shutting the door on abused women" is that Attorney General Jeff Sessions, exercising his prerogative as head of the Executive Office for Immigration Review, which houses the immigration courts and their appellate tribunal, the Board of Immigration Appeals, has certified to himself issues that touch on several areas relating to asylum, and its abuse. Sessions purpose in doing so is to provide guidance to the courts and the BIA as to what the parameters are for deciding claims of asylum.


One of the cases he has certified is the case on which Preston has focused, which involves a Honduran woman illegally in the U.S. who asserted that her husband routinely beat her, for which claim she was granted asylum by an immigration judge.


I want to make clear that I have no tolerance – zero, none – for domestic violence and the abusers who perpetrate violence, something I've made clear again and again in my writings for the Center (see, e.g., here, here, and here). In fact, one of the things I've derided is the propensity in certain "immigrant friendly" jurisdictions for prosecutors and judges to go easy on alien offenders, presumably because of the odd perception that they are only following their cultural norms, or some other such nonsense. (This problem could well get worse in the wake of the recent Supreme Court ruling, as my colleague Andrew Arthur has pointed out.)



But mechanisms to provide various forms of relief for alien victims of domestic abuse – and to effect the deportation of alien abusers – already exist in the law, and asylum seems to me an inappropriate form of relief for that purpose. Presumably, the basis for the claim is that the victims constitute "members of particular social group", which forms one of the defined grounds on which asylum may be based but something which has never been defined in the law. (For a more complete understanding of asylum and its misuse, see my March 2014 CIS Backgrounder "Asylum in the United States: How a finely tuned system of checks and balances has been effectively dismantled".)


It is one of the peculiarities of our system of law that when something prescribes a punishment (such as removal) for a section of law that is found to be "unconstitutionally vague", the punishment is tossed – such as happened within the last few days when the Supreme Court decidedthat the phrase "crime of violence" was too vague to be permitted to use in removing alien aggravated felons.

But when something provides a benefit (such as asylum) for vague phrases such as "particular social group", there appears to be no effective way to curb its ever-widening expansion, like circles after a rock has been thrown into a pond, except through the kind of direct action that Sessions is taking now in examining the case of the Honduran woman.

And it is noteworthy that Sessions has not focused solely on the problems inherent in expanding the notion of membership in a particular social group beyond all reason, although that clearly concerns him; he is also examining the issue of "credible fear" as it relates to asylum, and the question of how many continuances are reasonable in the context of immigration court proceedings, given the astounding backlog of hundreds of thousands of cases awaiting hearings before an immigration judge. Thus, it is clear that Sessions has not singled out "domestic violence" as some kind of signifier of a latent hostility to women, as Preston might have one believe. He is, instead, focused on the totality of a system tottering on the brink of collapse because of the combination of inefficiencies and abuses that manifest themselves at every turn.

The problem with domestic violence as a predicate for the grant of asylum is that, while superficially persuasive, it opens the door to granting asylum for all victims of criminal violence in foreign countries. Should someone who has been the victim of domestic violence be granted asylum, but someone who has survived an attempted murder be denied? Where does such a spectrum end?


It was never contemplated by the drafters or signatories to the international convention on the granting of refuge or asylum that victims of criminal offenses would be entitled to seek asylum. Were that the case, the dispossessed of the entire world would be beating a path to the doors of every developed country. (In truth, for all practical purposes they are, and it seems evident that Sessions wants to ensure that grants of asylum and refuge remain the extraordinary kind of relief that they were intended to be, rather than loopholes that a tractor trailer can fit through.)

Refuge and asylum have always been held to be extraordinary forms of relief from applying the usual rules relating to immigration to those meriting protection. The intent to exclude victims of everyday crime (as opposed to political crimes, crimes against humanity, war crimes, and genocide), no matter how individually tragic, from the protections of refuge or asylum is abundantly clear from the Travaux Preparatoires, the equivalent of the legislative history of the multi-national convention of ministers who attended the meetings that resulted in the 1951 Refugee Convention.


One final, ironic note: out of curiosity I did a cursory search of relative domestic violence rates among countries and regions of the globe. The United Nations' World Health Organization estimates the percentage rates at about 23.2 percent for the higher-income regions of the United States and Canada, which, to our shame, isn't really much better than the remainder of the western hemisphere, where the abuse rate hovers at 29.8 percent. So what exactly are we protecting women from? They may escape their particular abuser by fleeing to the United States but, given those statistical realities, what assurance is there that they won't fall into another abusive relationship?

For better or worse, this isn't what asylum was ever intended to shield anyone from.


https://cis.org/Cadman/Asylum-Law-No...paign=addtoany

No one even knows what asylum is or should be, because the conditions in the world no longer warrant it. JUST repeal all asylum laws. If at some point in the future, circumstances warrant some small specific asylum, I'm sure Congress will respond for that one event.

SCOTUS Undermines Domestic Violence Ground of Removability

By Andrew R. Arthur on April 20, 2018


In an April 17, 2018 post, I described a decision issued on that date, in which the Supreme Court had ruled that 18 U.S.C. § 16(b), as incorporated into the aggravated felony definition in section 101(a)(43)(F) of the Immigration and Nationality Act (INA) was unconstitutionally vague, affirming a circuit court decision.


In addition to the problems with that decision that I detailed in my post, the Court's ruling will also make it more difficult for U.S. Immigration and Customs Enforcement (ICE) to remove aliens who have been convicted of domestic violence.

In his dissent, Justice Roberts warned about the breadth of the Court's decision as it related to other federal criminal statutes:

[Section] 16 serves as the universal definition of "crime of violence" for all of Title 18 of the United States Code. Its language is incorporated into many procedural and substantive provisions of criminal law, including provisions concerning racketeering, money laundering, domestic violence, using a child to commit a violent crime, and distributing information about the making or use of explosives. Of special concern, §16 is replicated in the definition of "crime of violence" applicable to §924(c), which prohibits using or carrying a firearm "during and in relation to any crime of violence," or possessing a firearm "in furtherance of any such crime." §§924(c)(1)(A), (c)(3). Though I express no view on whether §924(c) can be distinguished from the provision we consider here, the Court's holding calls into question convictions under what the Government warns us is an "oft-prosecuted offense."

Not included in this list was the ground of removability for domestic violence.

Section 237(a)(2)(E)(i) of the INA renders removable: "Any alien who at any time after admission is convicted of a crime of domestic violence. . . . " It goes on to state:

For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of title 18, United States code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who was cohabiting with or has cohabitated with the person as a spouse, by an individual similarly situated to a spouse of a person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against the person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

Thus, the definition of a "crime of domestic violence" for purposes of this ground of removability is dependent upon 18 U.S.C. § 16, the second subsection of which was found to be unconstitutionally vague by the Court.

Domestic violence takes many forms. As Purdue University has explained:

Domestic violence, a systematic pattern of domination and control characterized by a coercive pattern of behavior, may include repeated battery and injury, psychological abuse, sexual assault, progressive social isolation, deprivation, intimidation, and restriction of access to food, clothing, money, friends, transportation, healthcare, and employment.

The costs, both tangible and intangible, of domestic violence are significant. The University of Minnesota Human Rights Library has detailed some of them:

Battering imposes significant costs on the community. According to the National Center for Injury Prevention and Control in the United States, the estimated annual direct medical cost of caring for battered women in the United States is $1.8 billion dollars. Another study, reported by UNICEF, estimates the direct cost in the United States to be between five and ten billion dollars annually. . . . .

As the World Health Organization notes, domestic violence also has significant indirect costs for society. A survey on violence against women in Canada revealed that 30% of battered women had to cease regular activities because of the violence, and 50% had to take sick leave from work because of injuries. A Nicaraguan study found that even after controlling for other factors that could affect earnings, women who were abused earned 46% less than women who were not abused. UNICEF reports that a study in Santiago, Chile, estimates that women who suffer physical violence earn, on average, less than half of the income of women who do not face violence at home.

Crimes of domestic violence are particularly serious, because they involve vulnerable populations in high-risk settings. Again, according to the University of Minnesota Human Rights Library:

Battering may lead to feelings of shame, embarrassment and humiliation, particularly when beatings leave marks, which in turn may lead to further isolation from friends and family and to absences from work. Because of increased absences and substance abuse, battered women may find it difficult to maintain steady employment. Escaping the violence may require a complete abandonment of job, home and belongings. . . .
Other effects include the impact of domestic violence on children, family, friends, co-workers, and the community. Family and friends may themselves be targeted by the abuser in retaliation for helping a woman leave a violent relationship or find assistance.

Children in homes where domestic violence occurs may be witnesses to abuse, may themselves be abused, and may suffer harm "incidental" to the domestic abuse. Understanding the effect of domestic violence on children, and particularly the correlation between spouse and child abuse, is a critical part of an effective community response to violence.

In one of the leading cases on this ground of removability, Sutherland vs. Reno, then-Judge (now Justice) Sonia Sotomayor, writing for a three-judge panel of the Court of Appeals for the Second Circuit, reviewed a Massachusetts conviction for indecent assault and battery on a person over the age of 14 in violation of Mass. Gen. Laws ch. 265, § 13H (1990).

The victim of that offense was the alien's stepdaughter, who lived in his household. According to the court, the criminal provision in question read as follows:

Whoever commits an indecent assault and battery on a person who has attained age fourteen shall be punished by imprisonment in the state prison for not more than five years, or by imprisonment for not more than two and one-half years in a jail or house of correction.

The court began by adopting the analysis employed by the Board of Immigration Appeals (BIA) for applying the domestic violence ground of removability:

As a threshold matter, we agree with the BIA that the determination of whether petitioner's crime constituted a "crime of domestic violence" under [section 237(a)(2)(E)(i) of the INA] involves a two-pronged analysis: (1) whether petitioner's crime was a "crime of violence" as defined by 18 U.S.C. § 16; and (2) whether petitioner's victim was a "protected person" within the meaning of [section 237(a)(2)(E)(i) of the INA].

The alien had been charged with violating the aforementioned state law by "allegedly reaching down the pajama pants of his 19-year-old stepdaughter." He "pleaded guilty to the charge and was sentenced to eleven months' incarceration, suspended, and was placed on probation for a term of three years."

While the alien admitted that this crime is a felony, he denied that it was a "crime of violence" as defined in 18 U.S.C. § 16(b). The court disagreed. First, it noted that under Massachusetts law, this crime is defined as:

A touching ... [that] when, judged by the normative standard of societal mores, is violative of social and behavioral expectations, in a manner which is fundamentally offensive to contemporary moral values and which the common sense of society would regard as immodest, immoral, and improper. So defined the term indecent affords a reasonable opportunity for a person of ordinary intelligence to know what is prohibited.

It then observed that a lack of consent is an element of this offense. The court continued:

In its determination, the BIA reasoned that, because any offense under § 13H is, by definition, nonconsensual, "the existence of lack of consent by the victim necessarily creates a substantial risk that the perpetrator may use force or violence to accomplish the indecent touching of the victim." . . . Like the BIA, we are persuaded that any violation of Mass. Gen. Laws ch. 265, § 13H, by its nature, presents a substantial risk that force may be used in order to overcome the victim's lack of consent and accomplish the indecent touching.

* * * *
Because the victim's non-consent is a necessary element for conviction under Mass. Gen. Laws ch. 265, § 13H, we hold that petitioner was convicted of a "crime of violence" within the meaning of 18 U.S.C. § 16(b).

As the victim of that offense was "protected by the domestic or family violence laws of Massachusetts," the court concluded that the alien was removable as charged.


Under the Supreme Court's decision, this offense would not render the alien removable from the United States, because the ground of removal is reliant upon the so called "residual clause" in 18 U.S.C. § 16(b).


It is not clear how many of the offenses that would be, or would have been, included in the domestic violence ground of removability are affected by this decision. Given the serious effect of those offenses on not only the victim, but also the victim's friends, family, and society, and the role that removal would play in shielding those individuals from such offender, it is incumbent upon Congress to act to protect a particularly vulnerable population of victims.


https://cis.org/Arthur/SCOTUS-Undermines-Domestic-Violence-Ground-Removability

We give billions of dollars for governments to permit and continue bad behaviors, to not make their countries great. We must direct people to their own neighboring countries for sanctuary. We are full and overflowing with the world's ills. Illiteracy, criminals, anti-American views, radicals, socialists, they cannot be permitted here. Help others there, not here. Let the George Soros funded groups, the charities, whoever go to them.

President Trump must get a handle on this situation. The border must be shut to illegal immigration. Legal immigration and refugee resettlement must be curtailed till things get balanced. We are letting in more illegal aliens than we send out every year. It is just plain stupid.

Our states are turning blue. The disasters of California awaits us all.

NO ASYLUM FROM ANYWHERE

NO REFUGEES FROM ANYWHERE

NO TPS FROM ANYWHERE

WE ARE NOT THE WORLD'S DUMPING GROUND OR SOLUTION TO THEIR PROBLEMS

WE HAVE DOMESTIC VIOLENCE, MURDER, RAPE, CHILD ABUSE, HOMELESS, SENIORS WHO NEED CARE

NO MORE PEOPLE!

REPEAL ASYLUM AND REFUGEE LAWS, ALL OF THEM.

For those asking for asylum from gangs, what do we have international gang enforcement training? This is something that not only the US, but also the better organized Western Hemisphere countries should cooperate against. what about Canada? What about some place like Chile, or Argentina helping? These are relatively stable places, and Colombia has a depth of experience in cleaning up a very dangerous gang.
Ohh I know it's our fault. We let them in, made them into gangsters and then deported them when we should have sent them to rehab.

(From Immigrant Legal Resource Center)
U Visa/T Visa/VAWA








As a national expert, the Immigrant Legal Resource Center (ILRC) provides technical assistance, trainings and practice manuals on critical immigration options for vulnerable immigrants including immigrant victims of domestic violence, human trafficking and other crimes.
U Visa: Immigration Relief for Survivors of Domestic Violence and Other Crimes
Immigrant victims of certain crimes who have been helpful in a criminal investigation or prosecution may qualify for a visa that can lead to a green card. The ILRC’s practice manual entitled The U Visa: Obtaining Status for Immigrant Victims of Crime is a comprehensive explanation of the law and application process that also includes sample materials and practice tips.
VAWA: Immigration Relief for Survivors of Domestic Violence and Other Crimes
VAWA allows an abused spouse or child of a U.S. Citizen or Lawful Permanent Resident or an abused parent of a U.S. Citizen to self-petition for lawful status in the United States, receive employment authorization, and access public benefits. VAWA provides domestic violence survivors with the means that are essential to escaping violence and establishing safe, independent lives. ILRC has co-authored The VAWA Manual, a step-by-step guide to assist advocates working on VAWA cases.
T Visa: Immigration Relief for Survivors of Sex or Labor Trafficking
Human trafficking survivors may be eligible for lawful status, employment authorization, and a potential path to permanent residency, but they are a unique population with diverse and resource-intensive needs. The ILRC publishes a guide,Representing Survivors of Human Trafficking, on special considerations when working with human trafficking victims.

It's just disgusting what's happened to our country over all these past years. We need our state and local enforcement on this to help US so we need to authorize them, assure them there will be no retaliation, retribution or lawsuits from enforcing our laws, and cut them loose to help US fix our country by rounding 'em up, arresting them and working with the ICE ERO to get them all the hell out of here. The good, the bad, the ugly, no child left behind. ALL OF THEM.