One evening a few years ago, I saw an alarming scene unfold at Hartsfield International Airport in Atlanta. Amid the grimy seats, the unruly toddlers and their irritated parents sat two women and one man. All were of South Asian descent and bound like myself to a South Asian destination. They had been ahead of me in the security line as well, all of us thoroughly patted down and searched and glowered at before being permitted into the sanctum of the terminal itself. Now, the women, who unlike me were dressed in traditional clothes, drew the stares of nervous edgy travelers, all of being dutifully suspicious of anyone who dared depart from the requisite workout attire of the American traveler.
One of the women was crying. The other, who appeared to be her mother, comforted her. I could hear snatches of their conversation in Urdu. “I don’t know what to do,” sobbed the daughter. “He is your husband,” whispered the mother. The father said nothing. Around them, pre-boarding announcements were made, passengers clamored and were herded into numbered lines. Eventually, a ticket agent approached the family and began speaking to them in hushed tones. Her back was to me and her blonde ponytail bobbed up and down, she appeared to be counseling and comforting. “He will kill me” the young woman still wailed, this time in English.
Just when the last boarding group was called, an Immigration and Custom Enforcement Agent appeared. The ticket agent led him to the woman, who seemed even more terrified at this new development. “Are you claiming asylum in the United States?” he asked her. She must have said yes, for not long after, she was led away by the ICE Agent for likely processing. Her parents boarded the plane without her.
I thought of the woman this week, as news of Attorney General Jeff Session’s directive to deny asylum claims based on domestic violence. I saw many more like her when I worked as a lawyer at a domestic violence shelter. Weary and terrified, even of me, they would sit hands folded and gaze averted in my plain office. Then, when the door was closed, they would begin their stories, of beatings and rapes, torture and taunts all delivered by the men they had married. The effort of telling these stories would exhaust them, we would go through boxes of Kleenex, years of tribulations. Under Sessions disqualification of domestic violence as a basis for asylum, all of them would have to return to their abusers.
There are only two ways of claiming asylum in the United States. The first, is directly at the border or port-of-entry, when an arriving person makes a claim and is usually taken into detention right away. The other is when a person who has made lawful entry into the United States based on a visa, decides to apply for asylum. The woman in the airport, and most of the women I saw while working at the shelter, belonged to this second category. In a landmark case in 2014, the Board of Immigration Appeals ruled that a Guatemalan woman who would face domestic violence if she returned qualified as a “member of a particular social group”—one of two conditions, along with “reasonable fear of persecution”—which need to be met for an asylum claim. “Married women in Guatemala who are unable to leave their relationship” the court ruled, constituted a particular social group. For the first time, gender was being considered in asylum law.
The decision in Matter of A-R-C-G et. al, when it came down, was cause for celebration. The dogged and bizarre refusal of past immigration courts to consider gender, an immutable characteristic that was the reason for certain sorts of persecution, seemed a vestige of a pre-feminist era. No one considered the hardline conservative Senator Sessions, who would through debacles of politics and personality cults, have dominion over the country’s legal system in just two years.
Inserting himself into the pending appeal of a 2018 case involving a Salvadoran woman that was to be heard by the Board of Immigration Appeals, Sessions this past week in his capacity as attorney general overturned the A-R-C-G ruling: Domestic violence victims could not be considered a particular social group. The violence the women suffered “was persecution based on private conduct” and therefore not actionable in the way public conduct would be. While law in a given country might confine a woman to her marriage or inadequately protect her within it, for violence to meet the legal threshold for asylum under Sessions ruling, there would need to be some specific proof that the State had been unwilling to act.
Around the world, there are loads of laws that make women vulnerable to extreme abuse in marital relationships. In the Philippines, where Catholicism exerts a strong hold over the legal system, divorce is not an option for a majority of citizens leaving women in abusive relationships for all of their lives. In India, a majority of courts do not consider marital rape a crime and therefore do not punish even those who may confess to it. Given all the other obstacles, such as family pressure, expense, court access that women already face and you have a set of legal strictures that leave women open to being regularly raped by their abusive husbands. Domestic abuse, in systems like these, is actively abetted by public policy: the system, in effect, is denying these women protection. But according to Sessions’s ruling, the abuse itself is not evidence enough of the state’s complicity.
Sessions’s ruling implies a particular view of domestic violence within the American system, as well. To make his point that domestic violence is a personal matter, the Sessions decision cited precedent from 1975, glibly ignoring, in the words of the Harvard Immigration and Refugee Clinical Program statement responding to the ruling, “the understanding of gender-based violence that has developed in the intervening 43 years.” In past decades, one of the strides made by feminist legal scholarship has been to argue that domestic violence is not necessarily a “private” crime, but rather a deliberate act that targeting women because they are women. Overturning that understanding of domestic violence doesn’t just have implications for asylum law: All American women now live in a country with an Attorney General who doesn’t believe wife-beating has to do with gender.
In selecting immigration, and “other” women as a battleground via which both legal definitions and general legal understandings of domestic violence are transformed, Sessions has made a deft political calculation. The assumption behind it simply that because it is the fates of unknown women, at airports, in shelters or inhabiting the margins of the margins on the line, the rest of American women simply won’t care, imagining themselves inoculated by citizenship. The opaque and lugubrious language of the law is an unwitting accomplice in all this, the serpentine connections between precedents and statutes and sub-definitions shoving everything into abstractions.
The woman I saw at the airport that day was real, as have been the women that I saw while working at the domestic violence shelter. They were strong, but unsure about appealing to state authorities to help them. The governments they had known in Guatemala or El Salvador were governments of men, in the service of men. As an immigration lawyer, my first hurdle was always getting through the instinctive distrust that those who have suffered violence and persecution wear as armor. It took a long while to convince scared and abused women that the United States government would give their suffering due attention and care, making the significant hurdles of time and effort and paperwork worth it: New lives were possible for them, free of the constant threat or reality of violence.
I would not be able to make that promise anymore. Demoting domestic violence to private violence steps back toward the era when private violence was considered the business of private individuals, and the government had no business with it. In the past year, #MeToo victories have peeled away thick layers misogyny long preserved by institutional privilege. But U.S asylum law as it pertains to abused women is now subject to retrograde precepts, hacking away at women’s hard-won victories.