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Confronting the long, uneven path to gender-based asylum in the US

‘Regardless of where the law goes from here, that impact will be profound.’

Mayra, a 17-year-old asylum seeking mother from Guatemala, carries her 13-month-old son Marvin after they crossed the Rio Grande river into the United States from Mexico on a raft, 17 March 2021.
Mayra, a 17-year-old asylum seeking mother from Guatemala, carries her 13-month-old son Marvin after they crossed the Rio Grande river into the United States from Mexico on a raft, 17 March 2021. (Adrees Latif/REUTERS)

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Tens of thousands of women from El Salvador, Guatemala, and Honduras – collectively known as the Northern Triangle of Central America – have left their homes to try to reach the United States in recent years. 

Many are fleeing rampant gender-based violence. But those who are able to enter the US – often after undertaking long and dangerous journeys to the US-Mexico border – are confronted by a stark reality: It is exceedingly difficult for victims of gender-based violence to be granted protection in the US asylum system. 

The COVID-19 pandemic has only exacerbated the situation in the Northern Triangle, and violence against women – and a lack of government protection – is one of the factors driving a sharp uptick this year in the number of people from the region, and elsewhere, attempting to enter the US. 

In August, US Border Patrol carried out more than 210,000 apprehensions at the US Mexico-Border – the most in 21 years. The number includes people who attempted to cross more than once after they were expelled from the US under a controversial, pandemic-related public health order known as Title 42

“We hear those stories over and over again from women who are subject to years and years of physical, emotional, sexual violence,” Bill Holston, executive director of the Human Rights Initiative of Texas, an NGO which helps asylum seekers navigate the US legal system, told The New Humanitarian. 

“They go to the police, and they try to get protective orders. And the police will say, ‘Well, this is a private matter,’ or, ‘He's your husband; you need to go back to him,’” Holston added. 

Countries such as Canada, Sweden, and the UK have codified rules for gender-based asylum claims, setting a clear path for victims of gender-based violence to get protection. The US has not.



As a result, the circumstances under which victims of gender-based violence have been granted asylum in the US have fluctuated over the last few decades, depending on court decisions and different administrations’ policies on immigration. Cases often drag on for years, leaving women in a painful state of limbo with no guarantee that they will receive protected status in the end.

Legally complex, the topic has traditionally garnered little public attention outside of the small group of advocates working on it. But the Trump administration’s moves to restrict access to asylum – including specifically barring victims of domestic and gender-based violence from receiving protection – thrust the issue into the national and global spotlight and added urgency to the effort to solidify the legal basis for gender-based asylum claims in the US. 

The complicated process entangles women like María, a Salvadoran woman whose asylum case has already dragged on for five years. In 2015, when her ex-partner – who had abused her for years – found out she was pregnant with someone else’s child, she feared for her life and knew she had to flee. The day before María left, her ex-partner called. “[He] threatened me and told me that he was going to take away my daughter… [and] that he was going to kill me,” María told The New Humanitarian.

El Salvador has some of the highest rates of femicide and violence against women in the world – in 2018, one woman was murdered by a man in the country every 24 hours. Steps taken by the Salvadoran government aimed at protecting women mostly exist on paper. In reality, the violence persists with almost total impunity. In María’s case, government officials who she turned to for help told her to reconcile with her abuser because they had a child together. 

Now, María’s case is one of 17 selected by attorney Emily Heger and a team of immigration lawyers in Texas who aim to create a clear pathway to protection in the US for women fleeing gender-based violence. 

The administration of President Joe Biden – which has so far taken limited steps to undo parts of its predecessor’s legacy on migration while keeping others, such as Title 42, intact – is expected to issue new guidelines about how to treat gender-based asylum claims before the end of the year.

After decades of confusion, advocates hope the guidelines will provide concrete rules for gender-based asylum claims in the US. But some immigration attorneys, including Heger, argue that a strong body of case law is also necessary to establish legal precedent for cases in US courts. 

‘New found conviction’ 

Heger, 33, never intended to become an asylum lawyer. In 2017, she was in law school and planned to use the degree in her role as the chief operating officer of a non-profit organisation that provided jobs and skill training to women in Africa. But while she was on a public bus on the way to the airport at the end of a trip to Baja California, Mexico, her plans changed abruptly.

When the bus pulled over at a stop, the woman sitting across the aisle from Heger lunged out of her seat and tried to run. The man she was traveling with grabbed the woman and shoved her back into the seat. When the woman tried to run again, the man strangled her and pushed her head against the window of the bus. As the woman stopped struggling, she made eye contact with Heger.

No one else on the bus seemed to take notice or care. Heger approached the bus driver, the owner of a restaurant at a bus stop, and others for help, but they all dismissed her, and laughed at her efforts. 

After she flew home, images of the woman stayed with Heger. Although she couldn’t help the woman she’d seen on the bus, she started looking for ways to help women like her, which led her to begin working on immigrants’ rights.

“I just had this new found conviction that I need to become a lawyer; I need to take seriously this opportunity to have this skill set to do something for [women like the woman on the bus],” Heger told The New Humanitarian. 

An ambiguous approach

In 1985, the UN’s refugee agency, UNHCR, concluded that women who face harsh or inhumane treatment for gender-based reasons can qualify for protection under the Refugee Convention as members of a “particular social group,” setting an international precedent for countries to grant women asylum based on the fear of persecution or being targeted on account of their gender.

The same year, an asylum case in the US – called Matter of Acosta – paved the way for women to be granted asylum on account of their gender. But unlike countries that have codified clear rules, the US government did not recognise gender as an example of a particular social group under the refugee definition, leaving the pathway to protection for victims of gender-based violence ambiguous.

READ MORE: Qualifying for asylum in the US

The definition of who qualifies for asylum in the US is taken from the UN’s 1951 Refugee Convention and covers people with a well-founded fear of persecution because of their “race, religion, nationality, membership in a particular social group, or political opinion.” 

To receive protection, people need to be able to prove they were persecuted, or in danger, because of their membership in one of those groups. When the persecution is carried out by non-governmental actors, they also need to be able to prove that the government in their home country was unwilling or unable to protect them.

As a result, each gender-based violence asylum case had to be constructed from scratch and required nuanced and complex legal arguments, according to Holston. Over time, court decisions narrowed the grounds on which women could be considered part of a particular social group until it became standard for lawyers to argue domestic violence-based asylum cases along hyper-specific lines.

For example, a highly significant 2014 case granted asylum to a Guatemalan woman, whose abusive husband had pursued her around the country, beating her, on the grounds that she was part of the particular social group: “married women in Guatemala who are unable to leave their relationship.” 

The case was held up as precedent, and lawyers started arguing domestic violence-based asylum cases along similar, narrow categories to give their clients the best chance at receiving protection.

“People were timid to put out gender as the defining characteristic of the group, and kept trying to narrow it in various ways, which led to these convoluted groups and this circular reasoning,” Nancy Kelly, a lawyer at the Harvard Immigration and Refugee Clinic, told The New Humanitarian. 

Barred from protection

In June 2018, everything changed. Jeff Sessions, attorney general under the Trump administration at the time, used his prerogative as the country’s chief law enforcement officer to issue a ruling in the asylum case of a Salvadoran woman who had suffered 15 years of brutal domestic violence before being able to flee to the US. 

The move was part of the Trump administration’s wider effort to constrict access to asylum, and Sessions created a broad precedent, ruling that claims “pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum”. 

Following the ruling – known as Matter of A-B- – it became much harder for women like María to receive protection. Many lawyers offering pro bono legal support to asylum seekers stopped taking on clients with gender-based violence claims because they considered the cases unwinnable, according to Steven Schulman, a lawyer mentoring Heger and one of the leading experts on gender-based asylum in the US.

A memorial for victims of gender based violence in El Salvador. The country has seen a 33 percent increase in femicides this year compared to 2020.
Camilo Freedman/SOPA Images/via Reuters Connect
A memorial for victims of gender based violence in El Salvador. The country has seen a 33 percent increase in femicides this year compared to 2020.

“It didn’t grind them to a complete halt, but it certainly narrowed the available path to asylum,” Schulman said. 

Despite the setback, some immigration attorneys – including Schulman, Kelly, and Deborah Anker, founder of the Harvard Immigration and Refugee Clinic – saw an opportunity to make the argument that asylum could be granted solely on the grounds of persecution relating to gender, instead of the hyper specific categories that were previously the norm. Their approach achieved some success even with Sessions’ ruling on the books. 

Heger was also spurred to action by Sessions’ ruling. Borrowing from the long tradition of civil rights litigation in the US, she developed a plan to try to find a way around it and generate enough case law that women with gender-based asylum claims would be less vulnerable to the anti-migration policies of future presidential administrations.

Now based at the Human Rights Initiative of Texas, where Holston is executive director, Heger strategically selected 17 gender-based violence asylum cases, which she thought she had a good shot of winning. Like María’s, these cases all had clear documentation of the alleged abuses and of the failure of the governments in the women’s home countries to intervene and provide protection. Based on this, Heger can argue that the women are in need of protection because of specific acts of violence and persecution connected to their gender while also meeting the other criteria for asylum. 

“I am not familiar with anybody else being so strategic,” Schulman said of Heger’s approach. 

Pushing the ball forward

If Heger is able to win María’s case – which will likely still take years to conclude – María will be granted permanent residence and protection in the US. The same goes for the other 16 women Heger is representing. And, if the Board of Immigration Appeals – the government body responsible for reviewing and applying immigration laws – publishes its decision on one of Heger’s cases as precedent, that will help establish the framework for the approval of future gender-based asylum claims, according to Schulman.

But regardless of the outcome of the cases, Heger’s work has already helped push the ball forward. “[She] put a focus on the importance of recognising gender as a particular social group, and regardless of where the law goes from here, that impact will be profound,” Schulman said. 

The impact of Heger’s work – and that of dozens of other advocates around the country – can already be seen in an executive order on migration issued by Biden shortly after he took office this year. 

Among other things, it directed attorney general Merrick Garland to review whether the US provides protection to people fleeing domestic and gang violence in a manner consistent with international standards and to clarify the circumstances under which a person should be considered a member of a “particular social group”, opening the door for US immigration rules to recognise gender as part of the category. 

In June, in response to the executive order, Garland threw out Sessions’ 2018 ruling, paving the way for María’s case – and others like it – to move forward.

If Garland’s forthcoming recommendations do end up recognising gender as a particular social group, it wouldn’t eliminate the need for Heger’s work. Each woman on her roster still has to prove her protection claims in front of a court.

What might change is the way in which Heger and other lawyers argue cases. “It moves us from arguing about whether or not gender is a particular social group to arguing whether or not someone was persecuted on account of their gender,” Schulman said.

Regardless of the new regulations, or the eventual decisions in the cases Heger selected, seeking asylum in the US will remain a last resort for victims of gender-based violence, according to Heger. And a clear legal path for them to receive protection in the US won’t change the situations driving them to flee their homes in the first place, she added.

“I think the ultimate answer is that each of the countries where these women are living, sees them and acknowledges them and fights for their protection … [and] will no longer stand for this gender-based violence,” Heger said.

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