States Are Challenging New Policy That Denies Asylum to Survivors of Domestic Violence

Eighteen states and the District of Columbia filed an amicus brief on September 28, in support of a legal challenge to the Trump administration’s new policy that denies asylum to applicants fleeing domestic or gang violence. The administration’s new policy was announced in a ruling that Attorney General Jeff Sessions made in a case, Matter of A-B-.

According to District of Columbia Attorney General Karl Racine, the administration’s new policy “ignores decades of state, federal, and international law.” As the friend-of-the-court filing asserts, “Federal law requires that all asylum claims be adjudicated on the particular facts and circumstances of the claim,” the filing reads, “and such a bar violates that principle.”

The new asylum policy hits women and children—the most common survivors of domestic abuse—particularly hard. The amicus brief noted that 30 percent of all 2016 asylum grantees came from El Salvador, Honduras or Guatemala, where gender-based violence is a looming threat. El Salvador and Honduras have the two highest rates of female homicides worldwide. Guatemala is close behind with the seventh highest rate. In 2017, over nine women were killed per week in El Salvador.

The amicus brief also cites the prevalence of domestic violence and gang rape. A Honduran woman named Nelly told the United Nations High Commissioner for Refugees (UNHCR), that women are singled out for abuse.

“The gangs treat women much worse than men. They want us to join as members, but then women are also threatened to be gang members’ ‘girlfriends,’ and it’s never just sex with the one; it’s forced sex with all of them. Women are raped by them, tortured by them, abused by them.”

As we have written about previously, the Trump administration’s decision to steadily lower the refugee ceiling – dramatically restricting the number of asylum-seekers who can be resettled in the United States – also disproportionately affects women. That decision is only compounded by Sessions’ ruling on eliminating domestic violence as grounds for admission for asylum purposes.

As the amicus brief argues, the Sessions ruling flies in the face of established state, federal and international law on protections for women and survivors of domestic abuse. Congress has adopted commitments to protect survivors of domestic violence, including by enacting the Violence Against Women Act (VAWA) in 1994, which states that “all persons within the United States shall have the right to be free from crimes of violence motivated by gender.” This includes not just U.S. citizens, but immigrant women, as well. The 1994 Act allowed immigrant survivors of domestic violence to self-petition for immigration relief and the 2000 amendment to VAWA—the Battered Immigrant Women Protection Act—included immigration relief for immigrant survivors of violent crime, sexual assault or trafficking.

UNHCR also “takes the position that women who suffer serious domestic harm can qualify for refugee protection.” The amicus brief concludes that the court should reject the Trump administration’s new asylum policy, for its “refusal to allow victims of domestic violence to seek asylum, which is contrary to the UNHCR’s guidelines and to well-established federal and state policies.”

As our Council on Foreign Relations colleagues, Caroline Bettinger-Lopez and Rachel Vogelstein, have written in Foreign Affairs, “Sessions’ ruling in Matter of A-B- not only blocks a pathway to safety for domestic violence victims, it also undermines the United States’ reputation as one of the few true beacons of hope and liberty in the world and a country bent on preventing and responding to violence against women.”

Image: Central American asylum seekers, including a Honduran girl, 2, and her mother, are taken into custody near the U.S.-Mexico border on June 12 in Texas. Photo by John Moore/Getty Images.

 

About the Author(s)

Catherine Powell

Professor at Fordham Law School, Adjunct Senior Fellow at the Council on Foreign Relations (CFR), Member of the Board of Editors for the American Journal of International Law. Follow her on Twitter (@ProfCatherine).

Maiya Moncino

Research Associate in International Economics at the Council on Foreign Relations (CFR)