A woman from Honduras, who shall be identified only by her initials, L.C., was granted asylum in an immigration court in Chicago early this year.
She came to the United States with her teenage daughter, fording the Rio Grande in Texas, after the girl had the extremely bad fortune of being a passer-by witness to a noonday massacre on a street near their home. Gunmen from the Mara 18 gang murdered eight people, mostly bus dispatchers, because the bus company was balking at paying a tax to the gang.
Soon the killers came to L.C.’s house, threatening to abduct her daughter for the sex trade and demanding that L.C. pay the gang for her child to be spared.
But that story of fear was not what persuaded the immigration judge that L.C. had met the legal standard for asylum. Rather, it was her account of sixteen years of beatings and sexual assault by her husband. In one of the last episodes before she fled, he had pressed a pistol to her temple to show how easy it would be to kill her.
Women in an exodus from Central America since 2014 have succeeded in winning asylum or other protections in the United States as victims of a pandemic of domestic abuse in that region. Because of recent cases that established fear of domestic violence as a legitimate basis for asylum, those claims often found more solid legal grounding in immigration court than claims of people who said they were escaping from killer gangs.
Now the Trump administration, determined to stop the stream of people to the border from Central America, is moving to curtail or close the legal avenues to protection for abused women like L.C. While the #MeToo movement has swept the country, bringing new legitimacy to women’s stories and consequences for men who abused, on immigration President Trump is going the other way.
Attorney General Jeff Sessions, from his position as the top official in charge of the immigration courts, is leading a broad review to question whether domestic or sexual violence should ever be recognized as persecution that would justify protection in the United States.
The president launched a new immigration blitz earlier this month in response to an Easter season caravan of migrants that was trekking across southern Mexico, which included hundreds of women and their children. In a fiery memorandum, Trump said they were a “drastic surge” of gang members and illegal migrants that “threatens our safety” and posed a challenge to “our American way of life.” Trump insisted in a volley of tweets that he had to shore up the "weak laws border." While authorizing the dispatch of National Guard troops, he also ordered immigration officials to take new steps to end a policy he called "catch and release."
In a speech in West Virginia on April 5th, Trump decried the rampant sexual assault endured by women in the caravan, saying they were "raped at levels that nobody's ever seen before.” He did it not to arouse sympathy or extend a humanitarian welcome, but to insist he had been right all along when he said, in announcing his presidential run in 2015, that many Mexican migrants were rapists.
Sessions joined in with the president, instructing federal prosecutors along the border to show “zero tolerance” by bringing criminal charges against anyone caught crossing illegally. In a speech on April 11 to border sheriffs meeting in New Mexico, Sessions said crossings by asylum seekers were increasing this year because of “loopholes in our laws being exploited by illegal aliens and open border radicals every day.”
The attorney general had a blunt message for the migrants: “If you break into this country, we will prosecute you.”
Under current American law, migrants who come to the border saying they fear returning home have a right to an interview by immigration authorities and in many cases to be heard in immigration court. The spread of vicious gang violence in El Salvador, Honduras and Guatemala has put them at the top of lists of the most murderous countries in the world. But Trump administration officials say most border crossers from the region present flimsy asylum claims to get into the country and game the system.
An April 4 information sheet from the Department of Homeland Security identified “the problem” as the surging numbers of women and children seeking asylum. Before 2011, it reported, over 90 percent of migrants who asked for refuge were “single adult males.” Now, 40 percent are “families and children.” (Most of the parents in what border officials call “family units”—parents apprehended with their own children—are mothers.) Border agents caught 104,999 people in family units in fiscal 2017, but only 2,605 were deported, a balance that administration officials say they are determined to reverse.
Refugee groups and women’s organizations have been worried by the review Sessions has undertaken since January to revise asylum case law that has been favorable to women. Since the immigration courts are part of the Justice Department rather than the independent federal judiciary, the attorney general has the authority to reach in and pick out cases he will decide on his own. If upheld on appeal, the attorney general’s decisions become binding precedents for the immigration courts.
Sessions has expressed his suspicion of asylum claims based on domestic abuse or gang predation. In a speech in October to immigration judges, Sessions said asylum was meant to protect people who fled their home countries “because of persecution based on fundamental things like their religion or nationality.” He said the immigration courts were “overloaded with fake claims.”
One case Sessions assigned to himself is a decision in 2016 by the immigration appeals court concerning a woman from El Salvador who was psychologically demeaned and sexually attacked by her husband, even after she divorced him. She presented statements from neighbors and a protective order from El Salvador. The appeals court, reversing a lower immigration judge, found she should be granted asylum.
Sessions said he would use the case to resolve a fundamental question: whether “being a victim of private criminal activity,” such as domestic violence, could ever fit the legal requirements for asylum.
In another case he took over, Sessions posed a procedural question—about when immigration judges can suspend certain deportation cases—which could have significant consequences for female migrants. He could make it more difficult for them to apply for visas as victims of trafficking, or to become permanent residents if they had been abused by a spouse or relative who might sponsor them. In all, Sessions has taken over four cases since January, an unusual number in a short period.
“You put all these cases together and the potential impact on vulnerable women is magnified,” said Toni Maschler, a lawyer in Washington, D.C. who has handled many asylum claims.
Sessions asked lawyers and immigration advocates on all sides to weigh in on questions he posed. But, in a move lawyers find baffling, he declined to open the underlying cases, which are confidential, specifically rebuffing requests from the American Immigration Lawyers Association to be allowed to study them. In one case, the lawyer for the asylum-seeker from El Salvador, Andrés López of Charlotte, N.C., stepped forward to share the appeals court decision with other lawyers, redacted to protect his client’s identity.
In other changes that will affect women seeking refuge, Department of Homeland Security officials want to re-frame the initial interviews immigration officers conduct with migrants, to make it more difficult to pass the first hurdle for asylum.
To end “catch and release,” Trump last week ordered border authorities to detain virtually all asylum-seekers and speed the opening of new detention facilities, using military bases if necessary. Officials are exploring ways to circumvent federal court orders that have allowed most women with children to be released after no more than three weeks in detention. Last month Immigration and Customs Enforcement announced it was ending a policy of generally releasing pregnant women.
This week the Justice Department said it would halt at the end of April a program run by the Vera Institute of Justice of legal rights presentations in 38 detention centers. For many women, the orientation sessions were the first time they learned they could seek legal help to fight to stay in the United States.
Trump and Sessions have strong support from conservative Republicans in Congress for their efforts to trim the number of asylum cases going before the courts and to hasten deportations of asylum-seekers. Rep. Bob Goodlatte of Virginia, the chairman of the House Judiciary Committee, introduced a bill in January that would codify many changes the administration wants. But it has not garnered enough support to advance.
The case of L.C. (who asked that only her initials be used, as she and her daughter build new lives in Chicago) shows what women stand to lose. She recalled in an interview how her husband woke her in the morning pulling her hair and punching her. He lashed her with his belt to “teach her to be a good woman,” and forced himself on her sexually. She often went to her job as an accountant in a flour mill with visible bruises and lacerations.
L.C. won her case based on a 39-page brief painstakingly crafted by a team of volunteer lawyers led by the firm Kirkland & Ellis and the National Immigrant Justice Center. Without them, she said, she wouldn’t even have known to mention her history of abuse to immigration authorities.
“I feel peace,” she says, something she had never experienced in Honduras. “I want women who came here from my country to know that they are not kitchen utensils,” she said.
Some protections Trump is seeking to roll back are long established in international refugee law, said Karen Musalo, a professor who is director of the Center for Gender and Refugee Studies at the University of California Hastings College of the Law. She led the protracted legal battle that resulted in the courts recognizing that women who suffered domestic violence could gain asylum.
“If you put it all together,” Musalo said, “he is trying to cut back in every way on access to protection.”
