Trump Administration’s Latest Target: Women Seeking Asylum

Women and girls fleeing gender-based violence in their countries are now likely to face tough obstacles when applying for asylum in the United States and are at great risk of being returned to face persecution and even death. On July 18, the Justice Department ruled that citing gender as a reason for seeking asylum was “overbroad,” upending 30 years of protections. The applicant in the case, Ms. S.G., a woman from El Salvador, fled to the United States seeking protection after she had been stalked and threatened by gang members and the police there refused to protect her. The Board of Immigration Appeals (BIA), the division within the Justice Department that heard the case, Matter of K-E-S-G-, denied her request for asylum in a published decision, causing alarm among advocates.

“When the Board of Immigration Appeals decides to publish a decision, it takes on significance for their decision-making in the future, and that’s why we fear this will have such a vast and harmful impact,” said Robyn Barnard, senior director of refugee advocacy at Human Rights First, an international advocacy organization. This decision will now be factored into cases heard by “adjudicators from immigration judges all over the country to asylum officers. It will impact the initial screenings that asylum officers do of people who are in detention, and in those decision, the officers are looking to see if this person has a likelihood of success in their case. So if, say, an Afghan woman fleeing gender-based violence by the Taliban and the [BIA] has just said” gender can’t be taken into consideration in asylum claims, they are now “very unlikely to win their case.”

In the decision, the BIA stated that an individual’s “sex or sex and nationality” does not meet its requirements for constituting a “particular social group,” a category used in U.S. law to define a group of people who share a common characteristic that makes them identifiable and therefore vulnerable to persecution. “My thing that keeps me up at night is the thousands of women [seeking asylum] who are unrepresented and don’t know how to argue a ‘particular social group’ claim, let alone file an appeal, and when they hear a judge say, ‘Sorry, you’re denied, you’re not eligible,’ they’re going to believe that’s the end of it,” said Barnard. “They don’t know how to put forward the most precise legal arguments because they’re unrepresented, which is the vast majority of people who are seeking asylum. And when you’re dealing with a woman who is fleeing persecution, the violence without a doubt is always that much more awful.”

This decision comes at a particularly dangerous time for women and girls around the globe. For example, Afghan women and girls are being targeted by the Taliban precisely because of their gender. Yet the U.S. has ended Temporary Protected Status (TPS) for Afghans, a designation that protects from removal individuals whose home countries are considered dangerous. “At the same time as this decision, there are these other humanitarian protections that are being denied to Afghan women as well as other restrictions on a community that should otherwise qualify for asylum,” said Neela Chakravartula, associate director of litigation at the Center for Gender & Refugee Studies and co-counsel in Matter of K-E-S-G-. “This decision says that women can’t qualify for asylum by saying they are being targeted on the basis of their gender. But in this case, that is exactly what is happening. And It’s analytically clear that is exactly what’s happening on a lot of occasions.”

In contrast, the Court of Justice of the European Union ruled that the systematic discrimination against Afghan women by the Taliban is considered persecution under EU asylum law. “The same should really be the case here, of course,” said Laila Ayub, co-founder and co-director of Project ANAR (the Afghan Network for Advocacy and Resources), an Afghan community–based immigration justice organization formed and led by Afghan women. Instead, “this administration just has the goal of instilling fear and destabilizing our communities.” The K-E-S-G- decision also “impacts people who are already in the United States. They’ve had to go through so many hurdles to get here. Many of them had to wait months for permission to be here and seek asylum here. There’s historical precedent for wartime evacuee populations to have a pathway to permanent residency, but Congress hasn’t passed that kind of protection for Afghans, leaving the tens of thousands of people who came here through the evacuation [in 2021] as asylum seekers subject to all these constant efforts to restrict asylum protections.”

This is not the first time that the Trump administration has tried to roll back asylum protections for women fleeing violence. During his first presidency, the Justice Department severely restricted asylum eligibility for domestic violence survivors in 2018, although the decision was vacated by Attorney General Merrick Garland in 2021. “That was a similar situation in that the decision, like this one, was meant to scare people,” said Chakravartula.

This ruling on asylum is part of the Trump administration’s broader anti-immigrant agenda. “What we’re seeing is efforts by the administration to attack the system and make it unfair,” said Bridget Crawford, director of law and policy at Immigration Equality, which specializes in LGBTQ and HIV-related asylum claims. “They’re stripping away any type of due process on protections, firing judges who approve too many cases, intimidating attorneys. There is this really alarming, anti-democratic attempt to chill speech, to chill attorneys and judges from doing their jobs. With that as the backdrop, LGBTQ asylum seekers, who have faced unimaginable persecution, when their cases are heard, there’s a high likelihood that they’re going to win. But now what’s happening is they’re being cut off before they even have a chance to present their case — being denied their screenings and being deported before they can even plead their case.”

Tactics to intimidate asylum seekers have also included Immigration and Customs Enforcement officers arresting people when they show up for their court dates. “Why would [women] feel safe enough to go to court and argue their [asylum] case if they’re also hearing that their case is going to be that much harder to win and they face the risk of being separated from their family or their children being detained with them?” said Barnard, who said that now Human Rights First cannot guarantee its clients won’t be arrested when they show up in court. “Previously, we would have been relatively certain in saying to our clients, If you follow every rule, there’s no reason” you would be detained. “When you add all these things together, it’s basically like this campaign of terror against immigrant women and their families, underscoring that the U.S. government does not care if you’re fleeing any type of violence or persecution.”

Although the BIA dismissed the asylum claim of Ms. S.G.’s appeal, she is still pursuing other options in immigration court and may find other avenues for being able to remain in the United States. Advocates emphasize that U.S. courts for decades granted asylum to survivors of gender-based violence based on the established idea that women constitute a “particular social group.” “This is a frustrating attempt to take a step backwards in our clear understanding of who’s eligible for asylum,” said Kursten Phelps, litigation counsel at the Tahirih Justice Center and co-counsel in Matter of K-E-S-G-. “There’s a concern that this is going to create a chill factor and discourage women, girls, and others who have experienced gender forms of persecution from speaking out or even applying for asylum. Advocates and attorneys like myself want to really make clear that this fight is not over and people can still seek asylum and, in some circumstances, will likely be granted asylum.”