By Gabby Vance, Class of 2021 and J. Nicole Alanko, Esq., Immigrant Justice Corps Fellow
In September 2020, the Attorney General issued a decision in the case Matter of A-C-A-A-, which has wide-reaching effects for women asylum seekers, including those we represent in the Clinic. While the decision has broader implications for the review of cases on appeal from immigration court, this decision emphasizes the importance of access to counsel for survivors of gender-based violence. When their cases are scrutinized to the new height that the Attorney General requires, asylum applicants without access to an attorney are left with an impossible burden to meet.
Asylum is a form of protection in the United States for those who have suffered, or have a well-founded fear of, persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion. Asylum seekers bear the burden of proving their case, which includes submitting direct evidence of what happened to them, expert affidavits, psychological and physical evaluations, and interdisciplinary research about the conditions in their country of origin.
Despite what is at stake in asylum cases, asylum seekers are not guaranteed access to counsel. If an asylum seeker cannot afford an attorney or a nonprofit or law school clinic cannot take their case, asylum seekers must represent themselves in court.
The Attorney General’s latest decision raises the burden on asylum seekers to a new height. On September 24th, Attorney General Barr issued his decision in Matter of A-C-A-A-. In this case, the Attorney General used his authority to refer a case to himself in order to overturn an Immigration Judge’s grant of asylum, and the Board of Immigration Appeals’ affirmance of that grant. In his decision, the Attorney General stated that there was not enough evidence presented to support that the persecution that the applicant suffered at the hands of her parents was on account of being a Salvadoran woman. The Attorney General’s decision gives little insight to what evidence the applicant presented, or more importantly, what evidence the Attorney General wanted to see. Similar decisions made by prior Attorneys General discussed applicants’ submissions of newspaper articles, expert testimony, or other supporting evidence. Not a single mention was made to these supporting sources, or other direct evidence that was submitted. Instead, the Attorney General focused on one singular issue: that no evidence was presented that the applicant’s parents had harmed anyone else because of their identity as a Salvadoran woman. Regardless of what specifically was or was not submitted, an immigration judge found the applicant‘s evidence to be sufficient to grant asylum, and the Board of Immigration Appeals affirmed that decision. The Attorney General, in his discretion, chose to overturn a factfinder who had not made a clearly erroneous decision without sufficient explanation.
The message of this decision is clear: the burden on asylum seekers to prove their cases continues to grow. Just like in prior cases over the last two years, the Attorney General is reiterating his scrutiny in asylum cases, particularly those that involve gender-based violence. Attorneys–and Clinic students–representing women seeking asylum on the grounds of gender-based violence must include more evidence and research than before to prove their cases.
Without an attorney, asylum seekers seeking protection based on suffering gender-based violence will not be able to document the harm that they have suffered to the level that the Attorney General expects. This decision, and decisions like it, mean that asylum seekers who do not have an attorney, or a team of student-attorneys, will not be able to submit the voluminous evidence and research needed to prove their cases. This is part of the reason that only 16% of unrepresented asylum seekers in Arlington win their cases. This number is sure to increase in the aftermath of this decision.
In the wake of decisions like Matter of A-C-A-A-, the work of the Clinic becomes more important for immigrants in Hampton Roads. The Clinic will continue to zealously advocate for survivors of gender-based violence in seeking safety and protection for themselves and their families.