Two years ago, former Attorney General Jeff Sessions attempted to eviscerate refugee protection for women fleeing domestic violence, declaring that women were generally not eligible for asylum on that basis. Last month, in a significant win for survivors, a federal court of appeals recognized Sessions’ misguided pronouncement for what it was: “arbitrary and unexamined fiat.”
The decision, which recognizes gender as a basis for asylum, is an important development that advocates have spent decades fighting for. Yet, the victory has been lost on many: at a training on asylum law for medical and mental health professionals just a few days after the decision, attendees raised the same question that we have heard repeatedly in recent years: Didn’t the Trump administration change the law to exclude domestic violence survivors from protection?
The short answer, recognized by the appeals court, is that Sessions did not, and could not, unilaterally rewrite asylum law. But that is exactly what the Trump administration has attempted to convince the public, and the courts, that it can do. And the insidious narrative the administration has relentlessly pushed will unfortunately take more than a groundbreaking federal court decision to counter.
Denials of asylum claims are on the rise, and confusion over whether gender can serve as the basis of a claim is only one piece of the puzzle. In order to establish asylum eligibility, applicants must prove that they suffered or fear persecution on account of a protected ground, in this case gender. Demonstrating that past harm or fear of future harm and the connection between those experiences or fears and her gender requires an asylum seeker to recall and recount all of the worst experiences of her life. Adjudicators also often demand extensive corroboration to supplement asylum seekers’ testimony – corroboration that may be difficult, if not impossible, for people to obtain. These obstacles often further stymie an asylum seeker’s chance for a positive ruling in her case.
And as heartbreaking news story after story has documented in recent weeks, fear of immigration enforcement has prevented many people from coming forward to access even the basic medical care necessary to survive during this pandemic, let alone the legal assistance that is so critical in asylum cases. Despite the well-documented risks of the rampant spread of COVID-19 and ongoing advocacy and litigation efforts to end immigration detention, the administration continues to ignore social distancing guidelines and to prioritize deportations over health and safety.
Medical and mental health professionals are on the front lines – not only in tackling the current pandemic and public health crisis we’re facing – but also in identifying and treating women and children who have fled and fear returning to domestic violence. Social workers, doctors, and nurses are integral to connecting asylum seekers to resources, including to legal representation to pursue their claims for protection in the United States. And medical and mental health professionals regularly serve an important role in documenting the harms asylum seekers have suffered and in providing expert testimony to adjudicators, who often rely on that objective evidence in granting asylum or other immigration relief.
Increased collaboration among lawyers, medical and mental health professionals, and others is needed to promote greater access to and understanding of the byzantine and bureaucratic U.S. immigration system and the protections that it can offer. Partnerships between hospitals or community health centers and law school clinics and legal service providers help increase access for asylum seekers to free legal advice, information, and referrals. And pro bono clinics that provide training for medical professionals and students on how to conduct physical and psychological evaluations of asylum seekers serve an important function in documenting asylum claims and improving outcomes.
But purposeful miseducation by the government about the asylum process and related issues like the recent public charge rule has confused medical professionals and their patients alike. Strong medical-legal collaborations are needed to dispel myths, tease out the nuances of how particular laws affect certain patients, and ensure that both attorneys and clinicians are operating on the most up-to-date and accurate information when assisting asylum seekers.
Forty years ago, the United States incorporated international refugee law into domestic law with the Refugee Act of 1980 to “respond to the urgent needs of persons subject to persecution in their homelands.” In doing so, we committed not to return individuals, including domestic violence survivors, to countries where their lives or freedom would be endangered.
The court’s rejection of Sessions’ effort to deny safe haven in the United States for domestic violence survivors reaffirmed the principle of fair treatment under the law and our longstanding commitment to providing asylum seekers with the safety they need. The decision will hopefully open the door for the specific asylum seeker in that case. But lawyers and medical and mental professionals, alike will need to continue their advocacy in order to make sure that other survivors of gender-based violence can access legal protections and a path to permanent residence and citizenship.