On June 11, 2018, then-Attorney General Jeff Sessions released his decision in a case called Matter of A‑B‑, purporting to eliminate domestic violence and gang violence as grounds for asylum. The decision also cast doubt on the continued viability of asylum claims predicated on non-state actor violence, which alarmed LGBTQ advocates, whose asylum claims often involve non-state actor persecutors. In making this change, Sessions used a previously rarely used feature of the asylum system, the Attorney General’s self-certification power. This Note analyzes the potential impact of Matter of A‑B‑ on LGBTQ asylum seekers. Based on the text of the decision, Matter of A‑B‑ should have a less extreme impact on LGBTQ and other asylum seekers than advocates initially feared. But the actual impact of the decision is nonetheless alarming. Statistical and anecdotal evidence indicates that Matter of A‑B‑ contributed to record high denial rates in 2018, and some asylum seekers denied as a result identified as LGBTQ. This discrepancy between the text of the decision and its practical impact highlights several deeply troubling features of the U.S. asylum system, including the broad discretion afforded to adjudicators and lack of judicial independence. Because of these factors, when the Attorney General uses his self-certification power in the asylum context, one person has vast power to make sweeping changes to a process with life and death stakes, a level of power that is contrary to the norms of checks and balances that underpin our democratic system. This Note argues that the case study of Matter of A‑B‑ and its impact on LGBTQ asylum claims reveals serious problems with the rule of law in the U.S. asylum system.
Matter of A-B-, LGBTQ Asylum Claims, and the Rule of Law in the U.S. Asylum System,
Nw. U. L. Rev.