Today, women from all over the world are knocking on America’s gates, seeking refuge from violent homes and homelands. But the Trump administration wants to close the door on them forever.
The White House is currently seeking to overturn a long-standing legal principle in immigration law providing asylum protection for victims of domestic abuse. Attorney General Jeff Sessions has set his sights on the migrant women—particularly those fleeing violence-racked communities in the Global South—so desperate to escape their homes they sought refuge in another country. In addition to the administration’s new policy of splitting migrant families at the border by detaining parents and children in separate facilities—a practice condemned as dangerous and abusive—Sessions is now challenging an individual asylum case with the aim of shredding humanitarian precedents for all migrants fleeing domestic violence. If the White House prevails, rights groups say, it could become nearly impossible to ensure essential refugee protection for countless survivors escaping gender-based abuse in their home countries.
The case in question is that of A-B-, a woman from El Salvador who endured physical and psychological abuse and rape at the hands of her partner for about 15 years. When she fled to seek humanitarian relief in the United States, she was initially granted protection. But Sessions now seeks to make an example of her—not by demonstrating the country’s historical commitment to providing protection to victims of abuse, but rather by exploiting her abuse to revisit a legal precept of treating domestic violence as a form of gender-based persecution. In alignment with recent case law and advocacy efforts, along with the International Refugee Convention, according to the petition filed by the Tahirih Justice Center, this precedent is based on the standard of granting asylum to domestic-abuse survivors “if the violence rises to the level of persecution, the abuser is someone the home government cannot or will not control, and the woman can be viewed by her society as fitting into a particular social group.”
A-B- is one of many women facing violence under chaotic governments in El Salvador, as well as Honduras and Guatemala, and therefore deserves protection and safe resettlement in the United States. Her case is now suspended, pending review over the question of whether, for migrant women like her, “being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum.” A reversal could drastically raise the threshold of proof for an asylum seeker. Authorities are currently demanding much more up-front evidence to prove such claims of persecution are genuine.
Tahirih and other human-rights groups say that, as a legal matter, Sessions “could be trying to turn back the clock on the protections we offer survivors of severe domestic violence. The impact could be much broader, however, and result in asylum denials for those claiming protection against other forms of gender-based violence, such as sex trafficking, female genital mutilation/cutting, and forced marriage, and possibly also those fleeing persecution based on sexual orientation.” Upending this policy might effectively render it “impossible for incoming survivors of violence to gain access to immigration judges,” and further restrict the number of claims granted by an asylum officer or immigration judge. Even if they are allowed to appeal their cases, the claimant could be basically all but denied or subjected to indefinite detention, given the huge backlog bogging down court dockets, in a system that’s collapsing in large part due to a severe shortage of judges and legal representation.
“This kind of approach would make a farce of due process,” said Eleanor Acer, senior director of refugee protection at Human Rights First. At a press briefing, she pointed out that “many asylum seekers do not speak English…and are not lawyers, who can be expected to know which of the many facts related to their histories of persecution” would apply within the US legal system.
Migrants face other immediate hardships as authorities move to escalate deportations, often routing them into the criminal-prosecution system, “sending asylum seekers to immigration jails,” or separating families. Even prior to the newly announced policy, border officials were reportedly sifting through the recent surge of Central American refugees by targeting families: An estimated 700 children, some just school-age, have been separated from the adult migrants claiming to be their parents since October.
Another alarming aspect of Sessions’s legal move is a menacing reference to “private criminal activity,” as distinguished from state-sanctioned abuses. Advocates ask how the government could ethically separate the brutality women suffer under so-called private actors if the abusers are cloaked in police uniforms—or when paramilitaries threatening mass rape are aligned with both criminal syndicates and the ruling elite.
As the petition explains, “When it rises to the level of persecution, and victims cannot get the help they need to stay safe, [domestic violence] is a systemic issue.”
Not only does does the Trump administration’s argument demonstrate glaring ignorance of Central America’s realities, it also disregards a central tenet guiding the humanitarian concept of gender-based violence: A belief that the problems stem from mutually reinforcing factors of misogynistic politics and culture. Before A-B- fled for the United States, she was stalked to the point of fearing for her life, with little legal recourse because her abuser’s brother was a local police officer.
Blaine Bookey, A-B-’s attorney, pointed out at the briefing that while her asylum claim is pending, the mother of three “remains separated from her children, and is suffering severe psychological distress from the uncertainty surrounding her safety, and theirs.”
A-B-’s case foreshadows worse legal prospects for the next influx of asylum seekers, including those on board a high-profile “caravan.” Last month, one Honduran mother, speaking at the border town of Tijuana, told The Arizona Republic, “I didn’t come all this way to be separated from my children.” But at the border they were all about to become another talking point in one of Trump’s frothing xenophobic tirades, and perhaps soon detained just as A-B- was, with families shattered, clinging to the fast-closing gates of American refuge.
No mother goes anywhere to be separated from her children, but too often, that’s where they find themselves trapped: chased from home by intimate enemies, trapped from above by hostile states.