On June 11, 2018 U.S. Attorney Jeff Sessions intervened in the case of Matter of A-B wherein a woman from El Salvador was seeking asylum in the U.S. on the grounds of domestic violence. Acting as a one-person Supreme Court, Sessions took advantage of his authority over the immigration courts, which are under the auspices of the Justice Department, to re-open Matter of A-B by sending it back to the Board of Immigration Appeals with a decision that reinterprets the law in a manner that ends asylum on the grounds of domestic violence. 
Legal experts are calling Sessions decision indefensible and in violation of legal precedents with a warning that some asylum seekers, particularly women, will be put in extreme danger. The events of this week shed light on two particular issues: the ongoing classification of violence against women as a private matter, and as Amy Brandzel argues, citizenship as a biopolitical and disciplinary mechanism of governmentality.
Veiled in the rhetoric of household intimacy and liberty, the privacy of the married couple is a longstanding vestige of common law that reaffirms the primacy of patriarchy in western nations. Historically, marriage gave bodily possession of the wife to her husband constituting “an intimate zone insulated from legal interference [that] offered the wife no resources, outside her personal charms, to deal with a problematic relationship.”
Feminists have long problematized the private/public divide in consideration of intimate family violence, and the enduring legacy of coverture, including the husband’s right to his wife’s body, even as laws have evolved and changed. Although the legal apparatus is now in place (in Canada and the U.S.) to criminalize the violent and/or sexual domination of women by their husbands and fathers, the vestiges of coverture remain and the underlying assumption that these matters are “private” holds steadfast.
The removal of domestic violence as grounds for asylum by Attorney General Jeff Sessions reflects similar arguments regarding whether violence against women can/should be included in hate crime legislation. In her analysis of hate crime legislation, Amy Brandzel argues that the inclusion of gender as a viable category overwhelming received the most resistance and consequently was not included within federal hate crime legislation until 2009. At the root of this resistance are two concerns: that violence against women is too pervasive and consequently would be too cumbersome to include, and that intimate violence against women does not fit the mold of hate crimes being perpetrated by strangers.
As Brandzel explains, “by suggesting that violence against women is too cumbersome, too pervasive, too intimate, and too common to fit within traditional notions of hate crimes highlights not only the acceptance of misogyny in U.S. culture, but even tells us a bit about the presumptions of other systems of subordination.”
Brandzel reveals how when the specific question as to whether rape would be a hate crime was considered, even women’s and gender rights groups went out of their way to assure legislators that rape would not be included and the proverbial floodgates would remain closed. Brandzel states,
It is critical to ask, why is there all of this emotional and intellectual labor spent assuring people that gender will not be taken seriously as a category of hate crimes? What is at stake in the actual acknowledgement that “women” experience hate violence on a regular basis, most often manifested in the form of sexual violence? Why would it be a problem to prosecute these cases under the category of “hate crimes?” It is quite telling that the horrific violence of rape is used in such a way as to silence the discourse on violence against women. In this way, sexual violence becomes preserved as normatively benign.
Session’s intervention in the Matter of A-B illustrates the assumption that domestic violence, even in countries such as El Savador that lack the legal and social apparatus to protect women, is not grounds for asylum due to its pervasiveness. As Sessions stated in an address to immigration judges made on the same day as his announcement precluding domestic violence as grounds for asylum, “the asylum system is being abused to the detriment of the rule of law, sound public policy, and public safety— and to the detriment of people with just claims. Saying a few simple words—claiming a fear of return—is now transforming a straightforward arrest for illegal entry and immediate return into a prolonged legal process”. His statement reflects the erroneous belief that women lie about intimate partner violence, and that even when the threat of violence is real, it does not translate into a “just” claim of asylum. The United Nations reports that physical and/or sexual intimate partner violence is globally pervasive accounting for half of female homicide victims, yet Sessions asserts that the “vast majority of the current asylum claims are not valid” and that women who arrive in the U.S. asserting such claims are in violation of the law.
By contrast, Archi Pyati, chief of policy at the Tahirih Justice Center says that it is Attorney Session’s decision that will lead to violations of International laws.
The international refugee convention and protocol, which we are obligated to follow, says you can’t send an asylum-seeker back home when they have a credible fear of persecution there. You cannot deport people until they’ve had a chance to make their case. And under our due process protections, they should have a full and fair opportunity. But if agents are taking away immigrants’ children and coercing them into pleading guilty, they have not had that opportunity.
As a hotly contested category within both immigration law and hate crime legislation, Brandzel argues that gender and the corresponding levels of violence that women experience has the potential to overwhelm judicial systems, creating chaos. “Put differently, gender-based violence is so integral to citizenship that to include it as a protected category would destabilize American democracy as we know it.”
Of course, we must remember that in addition to blocking asylum claims of victims of intimate partner violence, the U.S. also withdrew from the U.N. Council of Human Rights within the same week. It is interesting to note that a long, complex and often divisive scholarly tradition has unpacked the rhetoric of human rights, shedding light on the most notorious sore spot of modern regimes: wherein the contradiction between the “formal universality of democratic rights (accorded to all equally) and the less universal ability of their holders to exercise such rights effectively” highlights the mitigating interplay of race, gender, geography, war, etc., with regard to citizenship, immigration and even marriage itself.
Reviewing the works of a wide range of such scholars, Paul Gilroy has produced a framework for arguing that the ‘human’ in human rights is fluid and racially coded. The historical genealogy of human rights clearly articulates the inclusion and subsequent exclusion of non-white, non-male persons. The refusal to address the analytical shortcomings that arise from the dependence of human rights on an expansion of the rule of law facilitates hostility to the project of human rights. Both Gilroy and Rosi Braidotti remind us that we are not human in the same way. “The ‘human’ is not a neutral term—it is a term that indexes access to privileges and entitlement.” ‘Rights’ are also indexed to privilege and entitlement. Appeals for inclusion of disenfranchised groups (such as women) into the human family with corresponding rights of global and national citizenship are as poignant today as they were in the nineteenth century.
In sharp and blatantly hypocritical contrast to Jeff Sessions June 11, 2018 directive to disallow claims of asylum on the basis of gendered violence, the March 6, 2017 Executive Order issued by U.S. President Donald Trump entitled, “Protecting the Nation from Terrorist Entry into the United States” mandates the tracking and publishing of gender-based crimes (with special mention of honour killings) committed by foreign nationals against women. Section 11.3 of the March 6th executive order and the creation of VOICE (Victims of Immigration Crime Engagement ) share similar aims “to convince the public of the unique threat posed by certain kinds of criminals, highlighting one form of crime and one form of victim that fit a narrative of a helpless America beset by violent, criminal foreigners.”
The narrative of the barbaric Muslim is not new to American politics. In an article entitled, “Killing Me Softly with your Rights: Queer Death and the Politics of Rightful Killing” Sima Shakhsari traces the colonial lineage of a ‘common foe’ in its application to Islam and Muslims wherein the United States juxtaposes itself against the backward homophobic (and misogynist) Muslim states. Ideological support for the ‘war on terror’ was legitimized by capitalizing on stories of young gay men being killed in Islamic states inciting the masculine protectorship of the First World and the need to protect victims of the barbaric Muslim states, including women and gay, lesbian and trans citizens.
Trump’s March 6, 2017 executive order with its provision for tracking and publicizing honour killings creates a bizarre tension with regards to violence against women. The executive order implies a violation of moral rights when Islamic women are punitively murdered by family and community for transgressions of culturally ascribed social and sexual mores. As such, Muslims are constructed as barbaric, posing a universal threat to the sanctity of life— and a particular threat to American culture. Yet it ignores the fact that American drone warfare policies have killed a considerable number of Muslim women—a number most likely comparable to honor killings. It also sits squarely at odds with Attorney Jeff Session’s June 11, 2018 policy directive that disallows women to claim asylum based upon threats of intimate physical and/or sexual violence.
Applying Shakhsari’s politics of rightful killing to the March 6th executive order sheds light on the binary between the unrighteous honor killing of Muslim women by Muslim men and the righteous killing of Muslim women by the US military industrial complex in the name of freedom, democracy, the free market and global security. Trump’s executive order does nothing to prevent violence against women—it is an offensive body count that manipulates the murders of women of colour as justification for a racist immigration policy that bans the very women whom it claims to protect. Jeff Sessions directive articulates Brandzel’s consideration of citizenship as a moral and ethical value system that sorts, distributes and assigns rights, resources and social value, “allowing us to see the ways in which taxonomies of violence and bodily integrity undergrid normative citizenship.”
What makes Session’s directive so chilling is the normalization of violence against women, particularly racialized women, and the blatant acknowledgment that U.S. immigration policy will use intimate partner violence as a justification for aggression while disallowing it as a justification for asylum.
- Langone, Alix. June 11, 2018. “Jeff Sessions’ Changes to Asylum Law Will Put Some Women in ‘Great Danger,’ Says Expert.” Time Magazine. Available at: http://time.com/5308857/jeff-sessions-asylum-law-women/ ↑
- Kopan, Tal. June 11, 2018. “Trump admin drops asylum protections for domestic violence victims.” CNN. Available at: https://www.cnn.com/2018/06/11/politics/jeff-sessions-asylum-decision/index.html ↑
- Brandzel, Amy L. 2016. Against Citizenship: The Violence of the Normative. University of Illinois. ↑
- Cott, Nancy F. 2000. Public Vows: A History of Marriage and the Nation. Cambridge: Harvard University Press ↑
- Ibid at 163. ↑
- Ibid at 211. ↑
- Brandzel Supra note 3. ↑
- Ibid at 58-59. ↑
- Ibid at 59. ↑
- Ibid at 60. ↑
- The United States Department of Justice. June 11, 2018. “Attorney General Sessions Delivers Remarks to the Executive Office for Immigration Review Legal Training Program.” Available at: https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-executive-office-immigration-review-legal ↑
- United Nations. March 2015. “The Beijing Declaration and Platform for Action Turns 20.” Available at: http://www.unwomen.org/~/media/headquarters/attachments/sections/library/publications/2015/sg%20report_synthesis-en_web.pdf ↑
- The United States Department of Justice Supra note 11. ↑
- Stern, Mark Joseph. June 14, 2018. “Jess Session’s Latest Immigration Ruling is a Violation of International Law: An interview with Archi Pyati about the dire consequences of Matter of A-B.” Slate. Available at: https://slate.com/news-and-politics/2018/06/jeff-sessions-ruling-in-matter-of-a-b-is-a-violation-of-international-law.html ↑
- Brandzel Supra note 3 at 51. ↑
- Harris, Gardiner. June 20, 2018. “Haley Blames Watchdog Groups for U.S. withdrawal from U.N. Rights Council.” The New York Times. Available at: https://www.nytimes.com/2018/06/20/us/politics/haley-un-human-rights-council.html ↑
- Bauman, Zygmunt. 2011. Collateral Damage: Social Inequalities in a Global Age. Cambridge: Polity Press at 13. ↑
- Gilroy, Paul. 2009. Race and the Right to be Human. Utrecht: Universiteit Utrecht at 2. ↑
- Ibid at 20-21. ↑
- Braidotti, Rosi. 2015. Posthumanism and Society Conference, Keynote address. Available at: https://www.youtube.com/watch?v=3S3CulNbQ1M ↑
- Al Jazeera. March 1, 2017 “Trump: Agency to support ‘victims of immigrant crime.’ Available at: http://www.aljazeera.com/news/2017/03/trump-voice-agencypublish-crimes-immigrants-170301060525316.html ↑
- Shams, Alex. Marach 11, 2017 “Trump’s ‘honour crimes’ order is a racist distraction.” Al Jazeera. Available at: http://www.aljazeera.com/indepth/opinion/2017/03/trump-honour-crimes-order-racist-distraction-170309080923757.html ↑
- Shakhsari, Sima. 2014. “Killing Me Softly with your Rights: Queer Death and the Politics of Rightful Killing,” in Queer Necropolitics. Edited by J. Haritaworn, A. Kuntsman, and S. Posocco. Abingdon, Oxon: Routledge at 97. ↑
- Ibid at 98. ↑
- Identifying accurate statistics for civilian causalities in US led drone strikes is difficult in light of several political factors, one of which is the American policy to consider any civilians in the strike zone (including women and children) as enemy combatants. A discussion of civilian casualties and a discussion of the increase in drone warfare under the Obama administration is available at: https://www.thebureauinvestigates.com/stories/2017-01-17/obamas-covert-drone-war-in-numbers-ten-times-more-strikes-than-bush ↑
- Shakhsari Supra Note 23 at 104. ↑
- Brandzel Supra note 3 at 16. ↑
- Ibid at 60. ↑