Women with their kids at the U.S. Mexico border. (Photo courtesy Reuters)

WASHINGTON D. C. ­– In June 2021 Attorney General Merrick Garland reversed a Trump era policy that routinely denied asylum to female victims of domestic violence. Unless they could show a well-grounded fear of persecution by a government actor, women were not offered protection. 

Garland’s reversal of that policy has given female immigrants seeking political asylum new hope to obtain visas to stay in the U.S.

Refugees are stateless people who are afraid to return home because of their race, nationality, religion, political opinion, or membership in a particular social group.

Immigrants who have a fear of prosecution based on any of those grounds can make their case in a U.S. immigration court if they are already in the country. If they are stuck in Mexico that is much more difficult to do.

The legal definition of a refugee hasn’t changed much since the United Nations Refugee Convention of 1951 but who fits the definition has been the subject of much debate. Since the 1990s there has been growing recognition that gender abuse and domestic violence should be accepted as grounds for asylum.

“Many countries including the United States starting in the 90s adopted guidelines on how women’s claims could fit in with the Refugee Convention, “ said Blaine Bookey, Legal Director at the Center for Gender & Refugee Studies at the Hastings School of Law in San Francisco.

However, countries define ‘”a particular social group” differently. 

“What qualifies as a “social group” is a contested issue and is viewed differently by the United Nations High Commissioner for Refugees (UNHCR) and the United States’ Immigration and Nationality Act (INA),” wrote Dr. Aimee Heitz in a recent study of the “women as social group” debate.  

Although the United Nations Convention on Refugees considers women a social group, the U.S. is not a signatory to the convention. 

Violence by criminals or by domestic partners in the U.S. have been considered issues that did not rise to the level of human rights violations. But gang violence and gender abuse and even things like environmental disasters are so common these days, people who flee from them are widely considered to be refugees even if they don’t strictly meet the definition. 

“There have been many cases across the country that have recognized different forms of gender-based violence as persecution. That might be female genital cutting, sexual violence, forced marriage, honor killings, and also domestic violence,” Bookey said. 

In 2014, the Board of Immigration Appeals issued a ruling called the “The Matter ARCG decision” named by the initials of the asylum seeker. The landmark case explicitly recognized domestic violence as a basis for asylum.

The Obama administration allowed asylum claims by women who suffered extreme violence from their domestic partners. But the Trump administration ignored the ARCG decision and denied many other applicants who sought asylum for other reasons. 

Garland’s reversal of Trump’s policy is already impacting peoples’ lives. The Department of Justice has sent many immigration cases back to lower courts for “another bite at the apple” and the original cases are being heard anew.

Bookey said the Biden administration has a friendlier attitude towards women seeking asylum and it’s working on new regulations to align U.S. policy more closely with the U.N. Refugee Convention. Bookey doesn’t expect to see new rules before the end of the year. Currently, women seeking asylum are asked why they were targeted. 

“Right now the standard for that is so difficult so that even if a woman is recognized as a protected group… you have to also show that the reason why you were targeted was because of your gender and that can be very difficult the way the standard is established now,” Bookey said.

Blaine Bookey is Legal Director at the Center for Gender & Refugee Studies at the Hastings School of Law in San Francisco.

She said the new regulations should make things clearer and easier for applicants to show why they were being persecuted without having to get into the mind of their persecutor.

The Biden administration has tried to cancel Trump’s Migrant Protection Protocols (MPP). Commonly known as “Remain in Mexico “, the program makes it very difficult for refugees to access the U.S. immigration courts. 

Homeland Security Secretary Alejandro Mayorkas formally terminated the MPP program in June but in August Texas-based US District Judge Matthew Kacsmaryk ordered it reinstated. Right now, Biden’s cancellation of the program is hung up in federal court.  (See What’s Happening at the Border, Tennessee Tribune, August 10, 2021)

Bookey said detentions are increasing along the border and those conditions are incredibly re-traumatizing for immigrants. She said that it is difficult for people to litigate and win their cases from detention.

Another problem is the cadre of Trump-appointed immigration judges who are almost all former prosecutors and who denied 90% of applicants seeking visas during the Trump years. 

“The most egregious policies of the Trump administration are still being carried out by this administration that are having a huge impact on women and also are just completely cutting off access to the U.S. asylum system for anybody who is coming to the U.S. seeking safety right now,” Bookey said.

Biden has not cancelled a Trump program, called Title 42, that expels asylum seekers on the border based on public health grounds due to COVID-19. More than 1 million people have been turned back at the border and could not apply for asylum status.