My name is jayish, the dean and director of the immigration justice clinic here at American UniversityWashington College of law. Its my pleasure to welcome all of you to the law school and i offer that welcome not only on behalf of the law school but on behalf of our cosponsoring institution, the American University center for latin american and latino studies led by eric herbburg and dennis stitchcom and the American ImmigrationLawyers Association and our Planning Committee representatives. Again, i thank you for everyone who has been [ applause ] yes. Thank you. For all of the hard work that the planning economy has put in to making this event such a success. Thanks to all of you. I know you have very busy schedules so i appreciate your willingness to be here. For those of you who were here, yesterday we had a series of enriching panels beginning to unpack some of the challenges facing migrant youths, some of the factors across the world as well as some of the ways in which the asylum system is being challenged here in the United States, as well as how we can understand more deeply the best standard at the heart of this gathering. Were really pleased, both yesterday and today, to have such a broad range of experts in the room, not only legal experts, legal scholars and practitioners, but also folks from the social science, Mental Health professionals, other health professionals, really folks with a broad range of expertise. We had some very, very fruitful conversations yesterday, and im sure that that will continue today. Through these conversations, again, were hoping not only to understand what the challengess are, but also to identify paths forward. Again, i want to acknowledge the staff from the law school, from the center who have made this event possible, including alex an dre flynn, christiana little, many student assistants from the center for latin america and latino students and several members of the college of law including our Public Relations team, the special events team and others. And for many of you, i know in the room work at nonprofit organizations and i know how difficult it is to get the work done without the generous support of donors who can provides the Financial Resources that we need to make events like this possible. I want to acknowledge with tremendous gratitude once again the sponsors for this event including jones day, kirkland and ellis, skadden, baker and mckenzie, law offices of sheila starky hun. Thanks to all of you for your support. [ applause ] so were going to be beginning our second day of the conference with a presentation, a keynote presentation, from one of the leading experts in the field. Were really delighted to have with us today professor karen musalo. I know for many of us, she needs no introduction, but the professor is a founding director of the center for gender and refugee studies at Uc Hastings College of law. Its fair to say she is the leading expert on the topic of genderbased asylum and really many forms of refugee protection and asylum in the United States and overseas. Thats reflected in the fact that shes a lead coau sure of refugee policy. Shes authored numerous book chapters and articles and relevant to our project as well, the professor has litigated major cases in gender asylum serving as lead attorney in matter of kasingo, counsel in matter of r. A. , amicus in matter of a. R. C. G. And cocounsel in matter of a. B. She continues to public in the field and has received numerous awards for her pioneering work in this area, and today shes going to be speaking to us about how we can restore protection in the area of genderbased violence. So please join me in warmly welcome with warmly welcoming the professor. [ applause ] okay. Im short. Can people see me over the screen . I dont have a box to stand on. Everybody can hear me . So first of all, thank you for that very generous introduction. Second, i want to thank the center for latin american and latino studies and American University college of law, ala, the Planning Committee, if ive left anybody out i apologize really. Its an honor for me to be here and speak to you. From the panels yesterday we touched on some of the root causes for migration and we talked about genderbased violence, violence against women and girls, gangs, and so what i hope to do is talk about the law that has been eviscerated by this administration to, you know, the law to provide protection and the title i was asked to title it restoring protection and i will talk about that, but i think its important to give a little bit of the context of how this law developed and show the incredible sort of resistance to protecting women from genderbased violence so that you understand how we got to where we are now and how we might get to a better place. Forgive me for giving some of the history before i go into really the hopeful part of how i think we can restore protection. First of all, what have been some of the conceptual barriers in this area going way back to the beginning of the refugee convention, the protocol, and state parties just didnt see survivors of genderbased violence as fitting. We know the definition is somebody with persecution on account of find grounds, race, religion, nationality, political opinion, or membership in a particular social group. So harms inflicted on women werent seen as being persecution, which is required for refugee protection. Gender, you have to show that the persecution is on account of one of the five grounds. Gender isnt one of the five grounds. That was another barrier. Also the concept was of government being the persecutors and often its private actors who are the perpetrators of violence. These were seen as conceptual barriers. When the u. N. High commission refugee began to see this resistance, it put out a series of directives beginning in 1985 and im oversimplifying, but what they counselled state parties to do was to see that a harm would be persecution if it was a violation of human rights. Really not be, you know, trapped in this concept that these are just cultural norms or religious dictates. Theyre violations of human rights and persecution and the particular social group ground of the definition could include groups defined by gender and the persecution didnt need to be by the state, it could be by nonstate actor when the state would not protect. So there were advances and retreats over the years in the u. S. And im going to focus more on the u. S. In 1996, the b. I. A. , board of immigration appeals, issued the first precedent gender decision in the u. S. In a case involving female genital cutting granting asylum, reversing an immigration judge, and granting asylum for persecution of the fear of female genital cutting. This photo is in detention. Weve heard a lot about detention and when she was out of detention and had been granted asylum. I love to just show that photo because i think it illustrates the dehumanization of people behind bars and just, you know anyway, just leave you with that thought. So even though there was this groundbreaking decision in 1996, there was a much more contentious route to recognition for Domestic Violence survivors. We had female genital cutting, many of us thought that would open the door to all range of gender persecution, but what it wasnt such an easy route. In 1999, the board of immigration appeals in matter of r. A. Reversed a grant of asylum to a guatemalan woman fleeing brutal Domestic Violence. This was during the clinton administration. And janet reno and the Justice Department did two good things before the end of that administration. Janet reno certified r. A. To herself and she vacated it and her Justice Department issued proposed regulations that would have really contemplated protecting survivors of Domestic Violence and other gender persecution. Those regulations were proposed in 2000. They have, to this day, never been finalized. Throughout the whole obama administration, we were like get those regulations and finalize them, never happened. So you just see the depth of contention around this issue. Going forward, you know, miss r. A. Herself was granted asylum by an immigration judge. It was at a level that didnt result in binding precedent. There was another highprofile of a mexican woman miss l. R. , granted at the level of an immigration judge, not binding precedent and it wasnt until matter of a. R. C. G. In 2014 that we actually got a binding decision saying that Domestic Violence could be the basis for an asylum claim. Think about that. All the way from 1999 to 2014 to get a decision that Domestic Violence could be a basis but that would not be long lived because of the Trump Administration. So what did a. R. C. G. Do . As i said first precedent decision recognizing Domestic Violence. It had a narrow Legal Holding. I talked about the particular social Group Definition and how that could be used in cases involving gender persecution, so it had this Narrow Holding saying this social Group Defined by married women in guatemala unable to leave was a valid social group and subsequent, even though it was a Narrow Holding, advocates really came in and used a. R. C. G. To successfully advocate for other cases. So not just of married women, but unmarried women, girls forced into sexual relationships with gang members, child abuse survivors. A. R. C. G. Not revolutionary but advocating really expanded to use it. What happened . Sessions, during his time as attorney general, certified a case called a. B. To himself and used a. B. To reverse a. R. C. G. And in reversing a. R. C. G. He reversed a grant of asylum to miss a. B. You know, what does the matter of a. B. Do . This little hate to show you a photo like this so early in the morning but what can i say . The reason i add this is because when the attorney general did this and i was actually contacted by a reporter for the Washington Post and im very proud of the fact that this back to the dark ages is a quote from what i said to the reporter, i said, you know, this refusal to recognize gender violence or Domestic Violence as a violation of womens rights and as a basis for asylum is just yanking us back to the dark ages of how we conceptualize womens rights. So that was the headline there. I show that. Its true. The point that i was making and i think those of you in this room that know the tortured history of winning recognition that womens rights are human rights, this was kind of pulling us back. Okay. This is just a photo of miss a. B. Who, like many asylum seekers, has chosen to maintain her anonymity. Just to give you a sense of the person herself. She did, if we had time, i would have shown you, she did, along with human rights first, did a short video about talking about the persecution. So her case had very strong facts. This isnt a case where the attorney general was looking for, you know, a weak case. She was married to her abuser. She had three children with him. The abusers brother was a member of the salvadoran police. Extreme physical violence over the entire length of the relationship. The police were largely unresponsive and when i say largely unresponsive, to the point that one time they issued her a protective order, her husband, beating her threatening her with guns and knives and the police say why dont you serve this on your husband. I think anybody who thinks about an enraged husband and telling a woman to serve, you know to both show she went to the police and serve a protective observer is absurd. She moved away and the abuser tracked her down. Even after the divorce he raped her after the divorce and he told her that nothing but death would set her free from him. So what so on those facts, what did sessions do in the decision of matter of a. B. . I wanted to distinguish here between what sessions attempted to do and what he actually could do legally because hes not operating in a vacuum. Theres a body of precedent. So what he tried to do was to foreclose all claims based on Domestic Violence, other gender violence, and fear of gang claims. He has this broad language, generally, you know, claims by persons pertaining to Domestic Violence or Gang Violence will not qualify for asylum. Hes trying to send this message, dont grant these claims. But the actual Legal Holding is much narrower and theres a lot of what lawyers call statements about what the attorney general thinks. So he rejects the social group formulation that unmarried women, you know, unable to leave, that actually had been a formulation developed by the tept of Homeland Security itself and as i said approved in a. R. C. G. But he said that wasnt didnt meet the standard for Legal Standard for a particular social group. Remember i told you that persecution has to be on account of, and, you know, with Domestic Violence we say the violence is on account of this person being a woman in this relationship. Thats why the man abuses her. And thats what Domestic Violence experts will say. What sessions said is, this is just personal. Its to the about gender. To try to separate out and say Domestic Violence is not about gender, this is what i mean about the ludicrousness of this. So what are the Actual Holdings of a. B. In. And not the government, it should be easier for the person to internally relocate and escape the persecutor. He said these things in the decision without any basis really more of an opinion. So what happened in terms of challenges to a. B. This is where the restoring protection and whats happening, what are the strategies part begins. So im going to go over these four areas. Challenges of the a. B. Decision in the context of expedited removal. Litigation of ms. A. B. s individual case. Nationwide trends and diecision making and strategies. Expedited removal. After matter of a. B. , or matter of a. B. And guidance that usic issued after a. B. Strongly implied that individuals with fear of gang cases couldnt pass that screening standard that someone must pass if theyre in expedited removal. If youre in expedited removal and you dont meet the screening standard for credible fear, you are removed and youre not permitted to apply for asylum. So what the government was trying to do was just anybody who appeared with a d. V. Claim or gender violence claim or fear of gangs to say well, after a. B. , these figures dont qualify. So there was a challenge to that, grace v whitaker where the district a District Court judge in the district of columbia issued a conjunction. They argued that the attorney general committed many legal errors in his a. B. Decision. And the judge agreed. And he issued an injunction against the application of a. B. In this way, incredible fear. That was a huge step because it prevented the government from just preemptive screening the people out and not permitted them to apply for asylum. Of course the government has appealed and we are awaiting a decision from the d. C. Circuit court of appeals. And we dont know which way it will go. For now, these a. B. And cannot be used as a justification to screen people out in the credible fear process. Litigation in her own case. When an individual is denied asylum, in that individual case, you appeal it, and then through that appeal hope to have the underlying decision reversed. So after the attorney general issued his decision in matter of a. B. , it was sent back to the Immigration Court where we were permitted to put in more evidence. We put in about 1,000 more pages of evidence about gender violence in el salvador, inability of government to protect. But the immigration judge denied it again. Couch is one of the judges who has about a 95 asylum denial rate. Its not normal. For those of you who dont practice immigration law, not normal. And he was also just recently appointed to be a judge. He was elevated, promoted to the board of immigration appeals. But point im making is it was remanded back to the same judge who denied it initially and he denied it again. So we appealed to the board of immigration of appeals. We submitted our briefing just last month. And were waiting for the board of immigration appeals to decide. The board of immigration appeals theoretically could find for her. Not likely, but if the board of immigration appeals denies, then we get up to the Fourth Circuit court of appeals. In a federal court where if we preva prevail, we would hope to get reversed a lot of the legal reasoning in matter of a. B. And i should say i spoke about grace v. Whitaker, but that only applies to credible fear. That doesnt restrain judges who want to deny because of the merits a. B. Case. In the face of this decision in matter of a. B. That tries to fore close the claims, what is happening in reality to Decision Making . The center for refuge studies we assist attorneys and attorneys tell us about the outcomes in their cases. Its not a representative sample. Its not comprehensive. Its that sample of attorneys who ask for help from us, and so also we wouldnt have any prose cases. People cant or dont know about us or dont seek our system. This is what we know. Weve seen 50 unpublished cases in fear of gangs where there were 37 denials and 13 remands back to the immigration judge, and generally the bai cites the matter of aa. B. And says after what the general decided in matter of a. B. , you know, whatever. Not po