In the legal no-man’s land between the United States and Mexico, parents who have had their children snatched from them are thrown into detention while asylum seekers are turned away at official checkpoints. Trump has attempted to temporarily defuse the crisis caused by his “zero tolerance” immigration policy, enacted in May, by halting mass criminal prosecution of adult border-crossers and allowing parents to be detained with their children, pending a hearing. As already separated families struggle to reunite, the goal now seems to be either imprisoning families together as they wade through the courts, or swiftly returning migrants to the brutal conditions they tried to escape in the first place.
But while the terror of Trump’s border policy has stunned the world, the chaos is actually the result of the cumulative failures of both Democratic and Republican administrations to defend the basic human rights of immigrants—including denying them due process, arresting and imprisoning undocumented workers, and undermining immigrant children’s access to education. The White House is now “hardening” the border not just by splitting up migrant families but also by eviscerating protections for persecuted communities seeking asylum, especially women fleeing gender-based violence. A directive issued by Attorney General Jeff Sessions’s Justice Department in June undermines international and constitutional principles by narrowing the legal standards the government applies for granting humanitarian protection.
The directive from Sessions has particular implications for migrant women. His decision broadly disqualifies victims of domestic violence or gang violence from claiming asylum, undercutting a major category of claims brought by Central American migrants. By singling out women, who make up a third to nearly half of migrants from the region, the directive also impacts families and unaccompanied children who are apprehended at the border.
The directive centers on a recent decision that Sessions revisited, apparently for the sake of re-litigating a key asylum protection for women and girls. The case, Matter of A-B-, involved a Salvadoran woman who claimed asylum based on years of physical, emotional, and sexual abuse at the hands of her ex-husband. The mother of three fled to the U.S. border in 2014, and, after a long vetting process, was granted asylum on the grounds that her government was “unwilling or unable” to protect her from the abuse. Her plight attested to the epidemic of gender-based violence across Central America, with many communities plagued by sexual assault and family violence as well as gang-related conflict.
A 2015 survey by the United Nations High Commissioner for Refugees (UNHCR) of 160 women who fled to the United States from Central America and Mexico found that about one quarter reported being victimized by an intimate partner, with violations ranging from daily beatings and rape to being stalked or having family members threatened. Moreover, a majority of women reported that the state not only failed to protect them from brutalization but that sometimes, in cases of gang-related violence, authorities themselves were also a source of harm or colluded with abusers. For women like A-B-, repatriation to El Salvador—a country with one of the world’s highest rates of femicide—could effectively mean death.
Currently, asylum seekers can claim persecution on the basis of “race, religion, nationality, membership in a particular social group, or political opinion.” Although gender alone is not considered sufficient grounds for claiming asylum, recent case law has placed domestic violence victims under the miscellaneous category of “social group.” As the National Immigrant Justice Center explains, what binds together a “social group” is “either . . . a shared characteristic members cannot change (like gender or sexual orientation) or a characteristic they should not be required to change (like being an uncircumcised woman).” According to this interpretation, domestic violence—based on a recent precedent of a Guatemalan woman who claimed persecution because of such abuse—is understood as victimization tied to the “immutable” characteristic of gender.
Sessions’s analysis counters established case law by arguing that domestic violence is fundamentally a private matter because it’s perpetrated by an intimate partner or spouse—and therefore not the government’s problem. Since asylum judges are limited by what they can regard as persecution, Sessions argued that not “all misfortune” qualifies an individual for refugee status—even when domestic violence is an endemic problem chronically ignored by an unstable government.
By categorically excluding domestic violence as grounds for asylum in A-B-‘s case, Sessions both ignored how gender-based violence shapes migration from the region and sharply narrowed what the state’s responsibility should be to guarantee protection in such cases. It’s not enough, he argued, for the government simply to fail to enforce laws against domestic abuse; the persecution in these cases must be the result of a more intentional violation by state actors.
But advocates who work with domestic violence survivors understand that gender-based violence is enabled by both institutionalized misogyny as well as a social system that devalues women’s lives—and considering individual violations alone fails to account for this broader context. The Tahirih Justice Center, which aids migrant survivors of domestic violence, argued in its analysis of the Sessions decision, “When it rises to the level of persecution, and victims cannot get the help they need to stay safe, it is a systemic issue.” In other words, when gender becomes a bar to basic safety, that alone justifies a woman’s need to cross a border, and places the moral obligation on the host country—in this case the United States—to provide humanitarian protection. Sessions’s decree not only ignores these international norms but goes against the basic principles guiding decades of refugee law.
Jennifer Quigley, an Advocacy Strategist at Human Rights First, which previously filed an amicus brief in support of domestic violence claimants, argues that by excluding domestic violence and other abuses by non-state actors as a basis for asylum, Sessions is trying to “eliminate the largest category of individuals” entitled to protection. In fact, some advocates fear that the administration’s decision is broad enough to apply to other asylum claims relating to non-state actors, such as “members of paramilitary groups, gangs, spouses, or even family who perpetrate Female Genital Mutilation/Cutting and forced marriage.”
Of the estimated 65,000 migrants from Guatemala, Honduras, and El Salvador who sought asylum in 2016, one of the primary drivers was gang-related violence. But as the number of women apprehended at the border has spiked—rising to more than 30 percent of Guatemalan migrants and 40 percent of Salvadoran and Honduran migrants in 2017—it is clear that gender-based violence is also becoming a major cause of migration.
Though it’s as yet unclear how much the new directive will impact current or future asylum cases as immigration judges weigh the administration’s arguments, it seems certain to compound the obstacles most asylum seekers already face when seeking protection in the United States. While most who arrive at the border manage to pass their “credible fear” interview, showing authorities they have a valid reason for seeking protection, just under 40 percent of official asylum claims, which generally require a higher level of judicial scrutiny, were granted in 2017. Success rates for claims vary widely depending on the specific judge and level of legal representation; chances of success can be several times higher for those with legal counsel, but that’s only available to 20 percent of claimants.
Although immigrant-rights advocates say they will continue to litigate asylum claims by citing past case law, Sessions’s directive sets a regressive blueprint for the future. It might also deter immigrant women already inside the United States from coming forward to claim asylum as they become even more reluctant to interact with social services or law enforcement. According to Archi Pyati, Tahirih’s Chief of Policy, “Our own clients are reading the news and get[ting] worried. . . . They themselves could decide, ‘Oh, it’s too much, I have a pending case but I give up.’ . . . We know what giving up means, it could mean . . . being returned to additional violence or even death."
These cases show how central gender is to the experiences of Central American asylum seekers. Yet the administration is eroding the government’s responsibility to shelter those who fall outside the narrowest interpretation of persecution. And for those migrant women at the border who are denied asylum, detention and family separation can aggravate the trauma of the journey they’ve endured and the violence they’ve fled.
But perhaps we shouldn’t be surprised at an immigration policy that weds the worst of American foreign and domestic policies. The administration’s interpretation of refugee law ignores Washington’s historical responsibility for the crisis; the mass exodus from the region is itself a legacy of years of destructive drug war policies and political upheaval, driven by U.S. economic and political hegemony in Latin America. And the domestic violence directive merely reflects the reactionary mentality of a White House that has also shredded labor, welfare, and reproductive rights for women at home. From its 2019 budget proposal to drastically underfund Violence Against Women Act programs, to Sessions’s own opposition to abortion rights and reluctance to address sexual assault—it’s clear that the Trump administration just doesn’t care about women. Weaponizing immigration law just extends this logic to the border.
Michelle Chen is a contributing editor at Dissent and co-host of its Belabored podcast.