Persecuting the persecuted in asylum cases is not the answer

Persecuting the persecuted in asylum cases is not the answer
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As a young Justice Department lawyer, I was present at the creation of the Refugee Act of 1980, which together with its amendments and implementing regulations constitute the regime of asylum and refugee protection in the United States. During the Carter administration, I had a hand in the final drafting of the 1980 asylum law. As a U.S. immigration judge in Los Angeles from 1990 through 2007, I heard and decided thousands of cases in which citizens and stateless persons from foreign countries sought asylum in our nation. As a law professor both in California and in England, I have lectured on asylum and refugee law.

The asylum law was intended as a humanitarian measure to defend the defenseless by offering them the possibility of a new and secure life in the United States. But that will no longer be the case if Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsDem warns Trump: 'Obstruction of justice' to fire Rosenstein Donald Trump’s Rosenstein dilemma White House proposes executive order to Trump that would examine tech companies’ practices MORE has his way. The Refugee Act of 1980 grants asylum status in the United States for any foreign-born individual who demonstrates past persecution or a well-founded fear of future persecution for reasons of “race, religion, nationality” as well as “membership in a particular social group” and “political opinion.”

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Additionally, under precedent set over the course of decades by federal courts across the country, the persecution that triggers asylum protection must be committed or attempted by a foreign government, or by forces that the government is unable or unwilling to control. That the persecution may be official or private recognizes the fact that in many countries, civil society and the rule of law are nowhere to be found. In their place, governments often unofficially depend on ad hoc private parties and organizations to aid in the torture, persecution and murder of those deemed “enemies of the state.” The use of nongovernmental persecutors provides plausible deniability to regimes that deny complicity in the mistreatment of those they seek to eliminate.

Now the attorney general is attempting to undermine if not eliminate the “unable or unwilling” standard applied in asylum cases for decades. In 2016, in a case entitled “Matter of A-B-,” the Board of Immigration Appeals, the administrative court that reviews decisions of immigration judges, ruled that based on prevailing precedent, an asylum applicant seeking refugee status based on her membership in a particular social group” that led to her gross domestic abuse, had demonstrated that the government of her native El Salvador was unwilling or unable to protect her from her abusive ex-husband. The board remanded the case to the trial judge so that he might apply the correct “unwilling or unable” standard.

In an astonishing and unprecedented ruling dated March 7 this year, the attorney general, who has limited authority to reverse or amend board decisions, referred to himself for review the board ruling in “Matter of A-B-.” In his order staying the board’s decision until he reviews it in full, Sessions has asked for briefs on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of the application of asylum.”

The order is unprecedented. Indeed, it defies the long-established precedent of the Article III courts that review decisions of the board and the attorney general. Sessions, long an advocate of a more restrictive asylum regime, is attempting to unsettle settled law by dealing a death blow to the application of the “unwilling or unable” standard. Although the goal of Sessions is in conformity with the president’s hostility toward immigrants, it is a dangerous flight from reality.

If the attorney general has his way, then Syrian Christians and Sunni Muslims who flee persecution from the Iranian-funded, criminal terrorist group Hezbollah, acting unofficially on behalf of the Bashar Assad regime in the Syrian civil war, would have no basis for seeking asylum in the United States. If Sessions has his way, then those Christians, moderate Muslims, and enslaved and sexually exploited women and girls persecuted by the terrorist group Boko Haram, a group that the Nigerian government has found it difficult to control, also could not make a valid case for asylum. The last thing persecuted asylum seekers need is an unduly restrictive legal environment in which to advance their claims. But that is exactly what they will face if our attorney general has his way.

Bruce J. Einhorn is a retired federal judge who served 11 years as a prosecutor and attorney at the U.S. Department of Justice. He is now an adjunct professor at Pepperdine University School of Law and a visiting professor at University of Oxford. The views expressed here are his own.