In federal court on Monday, a lawyer for the American Civil Liberties Union squared off against the federal government, arguing that the Trump administration's decision to reject asylum claims in the case of domestic abuse and gang violence is illegal. The administration's decision was announced in June, when then-Attorney General Jeff Sessions declared that victims of "private violence" like domestic abuse no longer had a valid claim for asylum. This decision upturned years of United States refugee policy.
The ACLU is challenging the decision on a variety of legal grounds, including the constitutionality of Sessions interpreting the law instead of the judicial branch. But at the root of the case lies a central question: Are victims of sexual abuse in countries like El Salvador, where many of the case's plaintiffs fled from, victims of "private violence," or are they victims of a broader, societal form of prosecution?
"What this decision does is yank us all back to the Dark Ages of human rights and women's human rights and the conceptualization of it," Karen Musalo told the New York Times when Sessions announced the new policy.
The organization Musalo directs, the Center for Gender and Refugee Studies at the University of California's Hastings College of the Law, is joining with the ACLU to argue the current case, Grace v. Sessions. Drawing on many years of research, experts at the Center argue that calling domestic abuse "private violence" obscures the reality that, in many countries, individual instances of abuse are part of a broader wave of violence against women. In other words, asylum seekers aren't just fleeing domestic abuse—they're fleeing gender-based violence.
The subdued proceedings on Monday contrasted with the drama and high stakes surrounding the court case. In August, the ACLU and the Center filed the lawsuit on behalf of a group of 10 women and children fleeing sexual violence in Guatemala, Honduras, and El Salvador—three of the most violent countries in the world. Less than two days after the ACLU and the Center filed the lawsuit, a scandal exploded when the government promptly deported one of the women and her child back to El Salvador, where the two faced threats of rape and violence from the woman's ex-husband and a violent local gang. "Turn the plane around," U.S. District Judge Emmet Sullivan ordered, calling it "outrageous" for the Trump administration to deport someone currently seeking justice in the U.S. court system.
The woman, Carmen (a pseudonym used by the ACLU), and her daughter have since returned from El Salvador. But the sort of violence the two escaped in the country is not unique. Multiple studies reveal that Guatemala, Honduras, and El Salvador—known together as the Northern Triangle—have some of the world's highest rates of femicide and abuse against women. In El Salvador, over 67 percent of women reported experiencing gender-based violence at one point in their lives.
"It's not hard to allege the existence of gender-based violence, especially when you're talking about countries from the Northern Triangle of Central America," says Anne Dutton, an attorney and fellow at UC Hastings. "It's very clearly documented and there's wide research and reporting on the prevalence of violence against women."
Proving that the violence many women face in Central America stems from persecution based on gender is critical to validating their asylum claims, Dutton explains. This is because Sessions justified his new policy by arguing that existing asylum law only protects "persecuted groups," not victims of individual misfortune. However, if victims of domestic abuse are able prove that they suffered violence because of their gender—an immutable characteristic—they could qualify as a protected group under existing asylum law and judicial interpretation.
This is one of the fundamental issues with Sessions' policy, Dutton says. By categorically rejecting all domestic violence-related asylum claims, the Trump administration is blocking the opportunity of domestic violence survivors to argue that they are also the victims of societal or government-enabled gender-based violence.
Dutton says that decades-old U.S. legal precedent clearly explains that asylum claims based on characteristics like gender need to be "evaluated in a case to case basis, to see if they have the qualifying immutable characteristics that would form a basis for asylum." To make an asylum claim founded on gender-based violence in court, an asylum lawyer will first take an individual's testimony and try to discover telling details (like gendered slurs accompanying the violence they suffered, or gender being given as a justification for abuse). Those individual claims will then be backed up with deep research into the current conditions of the country the person is fleeing, as well as qualified expert testimony.
Dutton believes that, in many cases involving women from the Northern Triangle, this constellation of testimony, research, and expert opinion will reveal that governments are either unwilling or unable to protect women from gender-based violence. Because police forces in countries like El Salvador often condone misogynistic violence or actively support it, women fleeing what might look like, on paper, an individual case of domestic abuse may be able to argue that their abuse was facilitated by a broader form of societal persecution.
Depending on how the federal court rules on Grace v. Sessions, victims of gender-based violence could face a major hurdle toward asylum claims in the future. In its current form, the Trump administration's rule would lead the government to automatically dismiss all claims of domestic abuse—without first evaluating the possibility of gender-based violence.