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Gender-Based Violence , Power and Policy , US , World

Public Comment Ends for Proposed Changes that Eliminate Gender-Based Asylum

by Erica HellersteinJul 15, 2020

Trump Administration’s proposed asylum changes could end protection for women and girls fleeing domestic violence. The public comment period ends today.

As the United States was busy battling the invisible enemy of the coronavirus, the Trump administration quietly proposed new asylum rules making it nearly impossible for women and girls fleeing domestic and gender-based violence to be granted asylum. Today marks the end of the comment period for the proposed regulations, and the government must now review them before issuing a final decision. 

They are the widest-reaching changes in a years-long effort to chip away at the U.S. asylum system, immigration advocates and lawyers say, and if approved, will hold this administration’s most sweeping implications yet for women and girls. 

Under current U.S. asylum law, an applicant must prove that they have a well-founded fear of persecution in their home country on account of one of five grounds: race, religion, nationality, political opinion, or membership in a particular social group. Gender-related claims typically fall under the last category. 

But the proposed rules explicitly say that asylum claims based on gender will not apply, essentially barring any woman who argues that her gender is the reason she is being persecuted. 

“Pretty much nobody with a claim based on gender will be able to get in the door or prevail,” explains Irena Sullivan, senior immigration policy counsel of the Tahirih Justice Center in Virginia. “This basically sets us back decades and decades.”

The rules would also narrow the definition of the “political opinion” category, applying only to people who express anti-government views. This means that women persecuted for feminist or women’s rights activism, but who don’t openly oppose their governments, won’t be able to win their cases.  

Since April, President Trump has signed executive orders limiting and changing the immigration system. Immigration hearings have been put on hold, directly impacting women fleeing violence.

The number of migrant women apprehended at the U.S-Mexico border has soared in recent years, from 81,000 in 2017 to 298,000 in 2019, according to data from the U.S. Customs and Border Protection (CBP). Girls under 18 from Central America’s Northern Triangle (El Salvador, Honduras, and Guatemala) comprised nearly one-third of all child apprehensions at the border in 2017, a 2018 analysis by the Migration Policy Institute found. 

“We know that the majority of claims coming out of Central America are gang-based violence and gender-based violence, and there are other provisions in these rules that seem directed specifically at Central Americans,” says Sarah Sherman-Stokes, the associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.

The world’s highest femicide rates

Poverty, political instability, some of the world’s highest femicide rates, and a culture of impunity for gender-based crimes are among the reasons that push Central American women north. The United Nations has named Latin America the world’s most “violent” region for women, with femicides and gender-based violence reaching “epidemic” proportions in Mexico and Central America’s Northern Triangle. 

El Salvador is the deadliest nation in the world for girls and women, with Guatemala and Honduras also among the most dangerous, according to the data available from the Swiss-based Small Arms Survey. El Salvador has a homicide rate for women nearly 10 times higher than the global average, according to 2017 data gathered by the Economic Commission for Latin America and the Caribbean. Women in Guatemala are killed at a rate five times that of the global average, according to ECLAC.

“It feels like these (proposed rules) are targeted towards the kinds of gender violence cases that are coming out of Central America in particular,” added Sherman-Stokes. 

The draft regulations aren’t the first time the Trump administration has focused on domestic violence. In 2018, then-Attorney General Jeff Sessions reversed a landmark 2014 ruling by the Board of Immigration Appeals that recognized domestic violence as a basis for asylum.

Although Sessions’ 2018 ruling dealt a blow to domestic violence asylum, it didn’t categorically end it. Some immigration attorneys say they have still been able to win domestic violence asylum cases in spite of the decision, largely because the 2018 ruling focused on one particular case, and attorneys have been able to argue other domestic violence cases successfully in court.

“I have had gender-based cases granted since Matter of A-B, and I think the administration knows that,” says Sherman-Stokes, referring to the Sessions ruling. “My sense is this is an effort to shut down gender-based asylum once and for all because they know that many of us are succeeding.” 


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