In innumerable ways, the second Trump administration jeopardizes the U.S.’s world leadership on human rights and democracy. In particular, immigrants’ rights and women’s rights are being severely tested. Perhaps nowhere is this more evident than in the administration’s treatment of women seeking asylum. Women fleeing gender-based violence are especially vulnerable to the anti-immigrant actions taken by the Trump administration.
Asylum Seekers Fleeing Gender-Based Violence
In our recently published book, Private Violence: Latin American Women and the Struggle for Asylum, we interviewed 46 female asylum seekers from Mexico and Central America to understand better how the immigration system adjudicates cases involving claims of gender-based violence. One respondent, a Honduran woman named Teresita, described how her boyfriend began beating her shortly after they moved in together: “He said I’m now his property and I have to obey him.” She later went to the police—only to be told that she needed to make nice with him. “They said I should go back home and fix it there because it’s a domestic issue . . . When I got home, he was waiting there, and he wanted to know why I went to the police.” She told the court that he beat her harder than he ever had before.
The women we talked to had experienced horrific violence at the hands of gang members or intimate partners in their home countries and had made the desperate decision to come to the United States to seek protection.
They had been victims of brutal beatings, death threats, rape, kidnapping, murder of loved ones, extortion, and efforts to recruit their children into gangs. After fleeing their homes, often leaving children and loved ones behind, they made the dangerous journey through Mexico and turned themselves into Border Patrol agents at the southern border. They were then detained and often mistreated.
The women we spoke to were fortunate to be released and allowed to proceed with their asylum applications. We also attended dozens of closed-door asylum hearings and interviewed immigration attorneys and former immigration judges to offer a clear picture of the struggles women face as they apply for asylum in the US. We learned just how difficult it is to win asylum, and we fear that it is becoming nearly impossible under the Trump administration.
Navigating the US Asylum System
The US asylum system was largely designed to protect people who had been persecuted in the public sphere by state actors such as agents of authoritarian governments. Gender-based crimes committed by spouses or gang members do not easily fit within asylum laws, imposing an onerous burden on women who seek protection. Acts of gender-based or intimate partner violence are often dismissed as “private violence,” or violence perpetrated by non-state actors.
Asylum cases based on “private violence” have a difficult time meeting the stringent legal criteria required in asylum hearings. But given the factors informing gender-based brutality in women’s home countries, we question whether these acts can be accurately characterized as solely private.
Decades of military and government unrest have led to deep poverty and structural inequality in Latin American nations—often instigated and encouraged by American policies. In these countries, male dominance is often the norm and is exacerbated by political and economic inequality. Police and gangs are often co-conspirators when it comes to terrorizing and subjugating women, and so when women are threatened and abused, they have no trusted authorities to turn to. Some muster what scant resources they can and head north. But rather than acknowledging that they are seeking protection, the US public, encouraged by political leaders, labels them as “illegals” or “criminals.”
Contrary to popular belief, applying for asylum is not easy. Like all asylum seekers, a woman has to prove that she has suffered harm or fears future harm that rises to the legal definition of persecution; that she cannot obtain protection in her home country because her government is unwilling or unable to protect her; that she falls into one of the protected groups recognized by US asylum law; and that she suffered persecution because of her membership in a protected group. She must also convince an immigration judge that she is a credible witness. The women we talked to waited years for hearings and paid significant legal fees. Through it all, asylum seekers must hold down jobs, provide for any children, and cope with the lasting trauma of the physical or sexual abuse they suffered. In the end, only a very small number of women are granted asylum; the verdict often depends on whether the assigned judge believes their story.
Moreover, the immigration courts where asylum hearings take place are not like the courts to which Americans are accustomed. Immigration courts are not in the judicial branch of the government and are not independent.
They are part of the US Department of Justice and ultimately report to the US Attorney General, who supervises the judges and has the power to fire them. The Attorney General may insert themselves into specific cases and rewrite the law. Immigrants in immigration court are not eligible for court-appointed lawyers, and most conversations are conducted through an interpreter.
In the last three decades, US asylum officers have been encouraged to be sensitive to women’s unique trauma, and the courts have slowly widened the avenues through which women may qualify for asylum. But then, in his first term, Trump shut the door to female asylum seekers, undoing much of the progress that had been made in previous years. Trump and his various Attorneys General reshaped asylum policy through a combination of regulatory changes, internal memos, and executive orders, and by setting legal precedents. They targeted female asylum seekers specifically, ruling that cases based on domestic- or gang violence would not merit asylum. “The asylum statute does not provide redress for all misfortune,” wrote former Attorney General Sessions. Severe domestic and gang violence was deemed merely, “private.”
The Biden administration’s policy toward asylum seekers largely continued Trump’s policies. Attorney General Merrick Garland, however, did vacate the previous written opinions on gang and domestic violence, and Biden signed an executive order promising new regulations for women fleeing so-called “private violence.” Unfortunately, these regulations were never finalized.
Trump’s campaign was clear that he would target immigration, including asylum. The GOP’s “Project 2025” playbook envisions a complete disruption of the legal immigration system, including the decimation of asylum. This administration wishes to further codify that domestic and gang violence will not be grounds for asylum, and that assumes that anyone is allowed to apply for asylum in the first place. Most would-be asylum seekers have been stopped at the border. There have already been reports of asylum seekers being deported before they had their day in court.
Justice for Women Asylum-Seekers
The United States has historically protected people fleeing persecution, but this American legacy is under attack.
Certainly, the US could exert pressure on Central America to counter the persistent structural and symbolic violence that renders women subject to violence and fails to protect them. Furthermore, the US could re-open Regional Processing Centers in Central American countries that allow migrants to be screened for eligibility to migrate lawfully rather than risking the journey to the southern border to apply for asylum. The need for strong guidelines that clarify how women can meet the asylum criteria in cases of domestic and gang violence remains necessary. Congress could codify that asylum seekers fleeing persecution by non-state actors may meet the criteria for asylum and modify the criteria so that they are easier to satisfy. More immigration courts and judges are needed to address the backlog. Female asylum seekers also need access to low-cost legal assistance and social services, including mental health services.
Unfortunately, the current administration and Congress are unlikely to reform our asylum laws and enshrine protections for women into the law. The women we interviewed only want safety and the chance to rebuild lives torn apart by unspeakable violence. They want to work and the chance to raise children free of violence from gangs or domestic partners.
We know that this administration will not stop at immigrant women, and the rights and safety of all women are under threat. If we want to protect the rights of women, we must not be indifferent to the government’s treatment of foreign-born women. All women merit the right to be free of gender-based violence and persecution.
