Acting Attorney General Matthew Whitaker is on his way out the door, but he may have one last brutal move: making it much harder for victims of domestic violence, including children, to seek asylum.
The Trump administration has long been dead-set on harming immigrants and asylum-seekers. And now Matthew Whitaker, Trump's acting attorney general, may be preparing to bar domestic violence victims — including children who are victims of sexual abuse — from seeking asylum in the United States.
If Whitaker does this, he will be extending and increasing the cruelty of his predecessor, Jeff Sessions. Last June, Sessions issued a rule saying that generally, claims by people suffering from domestic violence or gang violence wouldn't be eligible for asylum.
A federal court slapped down that ruling in late December, permanently enjoining the government from enforcing it. But now, immigration and domestic violence advocates are raising alarms that Whitaker appears poised to try a different approach to accomplish the same objective.
The Daily Beast reports that Whitaker is taking the unusual step of directing the Board of Immigration Appeals (BIA) to let him decide a particular case on asylum claims — which attorney generals typically do in order to set a legal precedent.
One way immigrants can claim asylum is by showing they are a member of a "particular social group" (PSG) that faces persecution in their home country. A family can count as a PSG, and victims of domestic violence — particularly victims of child sexual abuse — often make PSG claims because their attacker is a member of their family.
“Especially when it comes to child abuse cases this is the best mechanism for arguing those cases,” immigration attorney Eileen Sterlock told The Daily Beast. “Also in incest cases, where a father rapes a daughter, those are really egregious cases and losing that ability to argue a family-based PSG claim is going to make those cases even more difficult.”
That's exactly what it looks like Whitaker is preparing to do.
Whitaker has asked the parties in a case, Matter of L-E-A, to brief him on whether, and under what circumstances, someone can establish persecution on account of their membership in a PSG.
With his order last year, Sessions tried to say women who fear domestic violence from a family member were not a member of a PSG. Whitaker is taking a different tack, but it is similarly designed to narrow who qualifies.
The Matter of L-E-A case involves an asylum-seeker, L-E-A, who said he was targeted by a drug cartel because of his family relationship.
L-E-A's father owned a store in Mexico City. A drug cartel approached his father and demanded to sell drugs in the store. The father refused, and then the cartel approached L-E-A and asked him to sell the drugs in his father's store. When he refused, the cartel tried to kidnap him. He got away and fled to the United States to seek asylum, saying that his particular social group was his family.
An immigration judge denied L-E-A's claim, saying he wasn't only threatened because of his family — he was threatened because he was interfering with the drug trade. The BIA found that PSG claims where the membership was based on a familial relationship were a permissible way to seek asylum and sent the case back down to an immigration judge. That's when Whitaker stepped in.
In taking the case away from the BIA and asking the parties to brief him on the issue, Whitaker is likely interested in undercutting the use of familial relationships as membership in a PSG.
This has severe consequences for victims of domestic violence. Those claims are based on being able to say it is because of their membership in their family unit that they are being harmed.
If that avenue is taken away, many people fleeing brutal familial violence will have no grounds for asylum — which is exactly what the Trump administration wants. And victims of violence have to hope that once again, a court will intervene to protect them.
Published with permission of The American Independent Foundation.