Women and girls fleeing forms of extreme abuse that mostly targets women—such as rape, female genital mutilation (FGM), forced and child marriage, human trafficking, and severe domestic violence—have always faced an uphill battle in securing asylum protection in the United States. After decades of strategic litigation, female asylum-seekers have made important legal gains. But new rules proposed by the Department of Homeland Security and the Department of Justice would obliterate that progress.
The recently proposed regulations would eliminate legal protection for the vast majority of asylum-seekers fleeing persecution in their homelands and seeking protection in the United States. For women and girls fleeing gender-based persecution, these rules are problematic in two significant ways. First, they arbitrarily limit the ability of women to present claims based on gender-based persecution or gender-specific political opinion. Second, the regulations would also include procedural barriers for women presenting claims that involve gender-based persecution, which are already more difficult to present.
The rules appear designed to eliminate gender-based persecution claims. Under these new rules, for example, even a Yazidi survivor of rape perpetrated as part of the Islamic State’s genocidal attacks in Iraq would face significant hurdles to securing protection.
Because gender was not included as a protected ground under the Refugee Convention, claims involving gender-based persecution are frequently presented under the category of “membership of a particular social group.” In 1985 in Matter of Acosta, the Board of Immigration Appeals defined a particular social group as having common and immutable characteristics that “members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Sex was among the examples provided—and so Matter of Acosta was a critical case for women fleeing gender persecution.
These legal developments continued after Matter of Acosta. In the 1996 case Matter of Kasinga. the Board of Immigration Appeals decided that a young woman from Togo who fled FGM qualified for asylum protection, writing that she was a member of a particular social group “consisting of young women of the Tchamba Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice.” The Kasinga case set precedent for gender-persecution claims countrywide.
But under the new asylum regulations proposed by the Trump administration, the asylum applicant in Kasinga would likely find her claim denied. Here’s why: under asylum law, a person must show that she was persecuted on account of one of the five protected grounds set out in the Refugee Convention, also called the “nexus requirement.” One of the proposed rules would significantly curtail gender as forming part of the nexus required to establish persecution on account of a protected ground. The proposed rule identifies “gender” as one of eight circumstances in which the secretary of homeland security and the attorney general will not favorably adjudicate asylum based on persecution, barring rare circumstances that are not defined. Therefore, Fauziya Kasinga could establish that she was a member of a particular social group “consisting of young women of the Tchamba Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice” but under the new rule would be unlikely to establish that she feared persecution on account of a protected ground, because the particular social group includes “women” or “gender.”
Coming back to the example of a Yazidi survivor of Islamic State captivity who was clearly targeted for sexual violence and enslavement based on her gender, this woman would be unable to qualify for asylum on account of membership in a particular social group that includes gender.
In 2018, then-Attorney General Jeff Sessions constrained asylum claims based on severe domestic violence in the case of Matter of A-B-. In that case, Sessions used his authority over immigration courts to overrule Matter of A-R-C-G —a case where the Board of Immigration Appeals recognized domestic violence as a basis for asylum protection. The proposed regulations would codify this ill-advised decision and prevent women from stating claims involving domestic violence.
These proposed rules lose sight of the purpose of asylum law in the U.S. and internationally: to protect individuals from persecution. A person who establishes she is a refugee is presumed to qualify for asylum protection. Yet these proposed regulations take an inverted approach that first seeks to exclude individuals even when they establish that they meet the definition of a refugee. The result will be that many individuals who would normally qualify for protection under the current law will be denied for peripheral reasons unrelated to the core elements of a prima facie asylum case. Once the rules are published and become law, the only recourse for asylum-seekers will be litigation.
Having represented women and girls filing asylum and refugee claims both in the U.S and overseas—and working with Yazidi women and young girls who were abducted and brutally trafficked by the Islamic State—I have seen firsthand the many barriers they face in achieving protection in their own countries. Persecuted people look to the U.S. and other countries to give them an opportunity to escape horrific violence and try to recover and rebuild their lives. While achieving refugee or asylum protection has always been difficult, the fact that it exists gives these women and those who help them hope. If the doors keep closing, many women will receive the message that their lives do not matter.