Convenient Categorizing: Jeff Sessions and Immigration Law

Photo by Navy Petty Officer 2nd Class Dominique A. Pineiro | CC BY 2.0

The Chicago Tribune
 recently reported that immigration officials are rejecting a greater number of asylum requests submitted by Central Americans as a result of Attorney General Jeff Sessions’ recent ruling. Sessions opined that domestic abuse and gang violence are not credible reasons to grant migrants safe harbor. Immigration judges who work under the auspices of the Justice Department are now generally rubberstamping his decision, which has led to “more asylum seekers failing interviews … to establish credible fear of harm in their own countries” even if the dangers back home are genuine.

Rejecting asylum claims has many defenders. Dale Wilcox of the Immigration Reform Law Institute wrote on Friday in The Hill that Sessions is bringing a common-sense overhaul to asylum statutes that have been interpreted far too broadly. He laments that the attorney general has been unfairly characterized in the press as a “mean-spirited [man who] … doesn’t like women and small children. It’s time to put aside this knee-jerk emotionalism and confront the realities of the issue.”

Putting aside Sessions’ reflexive vilification of Central Americans as criminals and parasites, the latter part of Wilcox’s observation is sound advice.

Anti-immigration advocates like Wilcox often parrot Trump and Sessions’ rhetoric of objective legality; in their collective opinion, the administration’s decisions are nothing more than a strictly faithful rendering of US immigration laws that have been incorrectly or too-generously interpreted by previous justice departments and presidents.

Earlier this summer, Sessions asked, “…if you have rules of immigration, don’t they have to be enforced?”

He has answered his rhetorical question many times and in many venues.

“We know which side we’re on: The side of law and order,” he said.

This assertion, however, does not bear scrutiny. Even my cursory, layperson’s review of relevant immigration law throws the Trump-Sessions’ passion for legality and their stated adherence to it into serious doubt.

USA Today recently outlined a newly-launched, Trump administration-inspired US Citizenship and Immigration Services (USCIS) directive that “allows [immigration] officers to consider refugees’ illegal entry to the U.S. as a mark against them even for otherwise viable [asylum] applications.” In other words, their applications can be denied because of unauthorized border crossings.

The attorney general has repeatedly said that requests for asylum can only be legally made at “any of the official ports of entry.” He suggests that to not do so invalidates the claim.

This is false. It is also against the law.

In fact, the Immigration and Nationality Act, a part of US immigration law, contradicts Sessions’ interpretation.

Its section on asylum is quite clear:

“Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival …), irrespective of such alien’s status, may apply for asylum …”

Both the president and the attorney general have often voiced their deep respect for the US Constitution. For instance, in a recent interview, Sessions said, “the bedrock of our legal traditions were [sic] put in place by our Constitution.” And Trump, in a display of adoration, stated, “I feel very strongly about our Constitution. I’m proud of it, I love it and I want to go through the Constitution.”

So, how does this veneration for American jurisprudence square with real-life practice as it relates to vulnerable people seeking safety?

Not well.

Earlier this month, Mother Jones related stories of some people from Central America and Mexico who said that they were simply turned away at the border after requesting safe harbor. A few Border Patrol agents reportedly told asylum seekers that “Trump doesn’t want you here.”

An investigative report conducted by the organization Human Rights First in 2017 documented over 100 cases of people who were simply instructed to leave upon arrival at ports of entry. Some were told that asylum would no longer be granted. An applicant even bore physical injuries from attacks he had sustained back home or en route to the US but was denied the opportunity to make an application. In its summary, HRF found:

“The United States is undoubtedly turning away some asylum seekers at official points of entry across the southern border without referring them, as required under US law and treaty commitments, to asylum protection screenings and immigration proceedings.”

According to Article 6 of the US Constitution, a document Trump and Sessions highly revere, international treaties to which the US is a signatory “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”

One of the international human rights agreements that the US government signed and ratified is the Protocol on the Status of Refugees, which became a “supreme Law of the Land” over 50 years ago. It includes the concept of non-refoulement (non-return) from The 1951 Convention on the Status of Refugees, which the US refused to ratify; however, this notion, the legal obligation to not return asylum seekers who have a credible fear for their lives, applies to the Protocol and is therefore a legal obligation from the point of view of the US Constitution.  It states, in part, that

“No Contracting State shall expel or return (“refouler”) in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.”

The attorney general’s ruling last month excludes victims of domestic abuse and gang violence from asylum consideration because he believes that they do not belong to a particular social group. In other words, married women with children who are beaten or raped by their husbands do not constitute a group with common qualities. Likewise, teenage boys or young men who are pressured to join gangs and threatened with death or torture if they do not succumb are not a group with common qualities; nor are teenage girls or young women who are at risk of kidnapping and human trafficking.

As Sessions said, “…the asylum statute does not provide redress for all misfortune.” It is his opinion that in the context of domestic or gang violence, victims are victims the word over. There is little difference between abused women living in Minnesota, or those residing in Honduras; or young men subjected to predatory gangs in Chicago, and those who fall prey to criminal groups in San Salvador.

Besides, these are personal matters or community issues and not perpetrated by government actors; however, law enforcement agencies in Honduras, Nicaragua, and El Salvador are very corrupt. They frequently work with and for criminal gangs, and often refuse to help domestic abuse victims As Sessions states in his ruling, if one’s government is “unwilling or unable to protect [a victim]” then asylum can be granted; it is likely the attorney general is aware of the state of law enforcement in Central America. By way of explanation and to contradict Mr. Wilcox of the Immigration Law Reform Institute, Sessions’ concern for the fate of foreigners or minority groups is precisely zero.

For instance, when Sessions was a senator, he voted for the Violence against Women Act, which financed domestic abuse prevention programs. When it came up for re-authorization in 2012, he rejected it. The reason was that in the new version of the legislation, undocumented migrants, Native American women, and other groups were to receive help via the programs that the VWA provided.

So, in the first instance, battered women are no different than any other abused person anywhere else in the world, so they do not constitute a distinct group. Yet, in the second case, their apparent membership in a particular group disqualifies them from receiving help as domestic abuse victims.

Sessions is similarly selective when it comes to commonly-accepted human rights norms, some of which he employs, while he denies others. In 2002, the United Nations High Commissioner for Refugees (UNHCR) wrote non-legally binding guidelines in order to define the term “particular social group.”

The attorney general’s ruling and the UNHCR guidelines both include in their definitions of social groups the concept of immutability. This means that members must possess characteristics that are unchangeable, innate, common to other members, and particular in society. For example, being female is an unchangeable innate quality, as is motherhood. The same holds true for being a child.

In addition to rejecting gender or age as immutable characteristics outright, the attorney general omitted an important qualifying factor present in the UNHCR document; namely, that the “characteristic [that defines group membership]… is so fundamental to human dignity that group members should not be compelled to forsake it.” A person’s gender, age or role as a parent is precisely “fundamental to human dignity.” As noted, motherhood could be considered an immutable characteristic, and so one should not, for instance, be forced to give up a child in order to find refuge in another country as was recently the practice at the US’s southern border.

Both Sessions and the UNHCR argue that persecutory behavior alone that is leveled at certain people does not mean that those people automatically constitute a group. However, Sessions simply restricted himself to the concept of persecution in his ruling. Human rights legal guidelines, which the attorney general apparently rejected, include another qualifying factor. If people are targeted precisely because of some innate quality (gender or age, for example), such persecution can create a specific social group when it had not existed before.

UNHCR explains it this way:

“Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognizable in their society as a visible social group. Their persecution for being left-handed would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group.”

In place of left-handed men, one could insert women, mothers, teenagers, indigenous groups, or any other shared, immutable quality that one should not be compelled to forgo, hide, change, or abandon in order to live in safety.

Refusing to provide asylum could have dire consequences.

Elizabeth Kennedy, a social scientist from San Diego State University, estimated that between 2014 and 2015 alone—under the Obama administration’s intensified deportation policy—83 Central Americans to whom the US refused asylum were murdered. If one includes Mexican nationals, which her study does not, the number of victims is likely far higher.

Kennedy said, “These figures tell us that the US is returning people to their deaths in violation of national and international law. Most of the individuals reported to have been murdered lived in some of the most violent towns in some of the most violent countries in the world – suggesting strongly that is why they fled.”

The Trump administration’s obvious goal is to increase deportations by denying more asylum applications through ignoring existing law or omitting humanitarian norms that it finds inconvenient.

The tragic consequences of this are not difficult to predict.

In a speech the attorney general delivered in San Diego last spring, he noted that the law must be applied fairly in all cases, and that outsiders do not have the right “to violate our laws or rewrite them for us.”

No, they don’t.

That privilege is reserved for high government officials like Jeff Sessions.

Michael Slager is an English teacher at Loyola University Chicago.