THREAD: A huge move forward for asylum claims based on domestic violence in the Sixth Circuit today. The court recognizes that Trump and Sessions' anti-woman, anti-immigrant policy is probably illegal.
2/ Background: #asylum protects people whose life or liberty is at risk bc of their race, religion, nationality, political opinion, or membership in a particular social group (PSG). Congress didn't define PSG, so courts & AGs have interpreted it over time.
3/ In 2014, the Obama administration followed many other countries in recognizing that men often persecute women, not because they're just "bad guys," but because of their gender and position in the family.
4/ This opened the door for DV survivors to apply for asylum even in hostile jurisdictions, bc they belonged to a particular social group recognized under asylum law (in the 2014 case, ARCG, that PSG was "married women unable to leave their relationship")
5/ Of course, hating both women and immigrants, Trump and Sessions saw this as a "loophole" and were eager to deport women to their abusers. In 2018 they issued Matter of A-B-, a hilariously poorly-argued mishmash decision which attempted to overrule decades of federal precedent.
6/ Matter of A-B- attempted to foreclose gender-based and DV-based asylum claims, and many immigration judges dutifully followed orders. But litigators convinced the DC District Court that it was arbitrary and capricious as applied to screening interviews at the border.
7/ Here's where the Sixth Circuit makes its big move, in a footnote: finds the DC case (Grace v Whitaker) "persuasive," confirms that Matter of A-B- "has been abrogated," and holds that "Matter of A-R-C-G-" (the Obama-era DV case) "likely retains precedential value."
8/ What does this mean? In 6th Cir, we have powerful ammo to argue for our gender-based violence clients, as well as others whose cases are affected by Matter of A-B-. It also helps other courts make similar findings, as the First just did.
9/ Another thing Trump&Sessions attempted with A-B- was to illegally raise the standard for an asylum applicant to show that her government failed to protect her. Grace v Whitaker recognized that this was incorrect and the 6th Cir. follows here too.
10/ It's absolute common sense if you have read a single credible human rights report from Guatemala that the state cannot and will not protect indigenous women from DV. Yet judges insist on an impossible double standard:
11/ If she ever got a restraining order or made a police report, then the state is trying in vain to protect her, and it's not their fault they couldn't. If my client never reported because she knew it was dangerous/pointless, then she can't prove the state wouldn't've helped.
12/ Meanwhile the Memphis Immigration Court, where this case originated, recently established a new standing order (which I believe is improper) limiting country conditions evidence to 150 pages. They set an impossibly high standard, & won't let you submit the docs to meet it.
13/ It's refreshing to see a federal court actually read the human rights reports in the record, and adopt their conclusions rather than make excuses for corrupt, patriarchal, racist institutions.
14/ Ooops! Looks like I messed up the link in the beginning of the thread. Here's the opinion:
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