When Will Asylum Law Protect Women?: The Abusive Relationship Between Agency Decision Making and Asylum Claims Involving Domestic Violence

Abstract

Over the past several decades, applications for asylum by women who claim membership in a particular social group related to domestic violence have been largely unsuccessful. Attitudes regarding violence against women, the asylum requirements, and the failure to explicitly include gender as a protected group under both domestic and international law contribute to the difficulty that women face in asserting these claims. In addition, the volatile nature of agency decision making, bolstered by the broad deference afforded to agencies by federal courts under Chevron and Brand X, make outcomes inconsistent and unpredictable. During the summer of 2018, Attorney General Jeff Sessions issued an opinion in Matter of A-B- that appeared to heighten the asylum requirements further, not only for women with domestic violence-related claims, but for all asylees who claim persecution by non-state actors. The decision received criticism from immigration advocates, as it did not adhere to past asylum requirements from the Board of Immigration Appeals. Subsequently, federal courts will have to determine whether to defer to this heightened standard in the future. The far-reaching implications of the decision—as well as the power the Attorney General claimed in issuing it—should spur courts to take a second look at their Chevron jurisprudence. In order to maintain the well-established standard for persecution by non-state actors in asylum claims, the Supreme Court must reexamine, clarify, and limit the applicability of Chevron and Brand X.