Who Gets to Stay?

The courts are finally granting asylum to victims of domestic abuse. Victims of gang violence are still out of luck.

Central American immigrants await transportation to a U.S. Border Patrol processing center after crossing the Rio Grande into the Texas on July 24, 2014, near Mission.

Photo by John Moore/Getty Images

What kind of violence abroad should allow women and children to win asylum in the United States? The recent influx of both families and kids traveling on their own from Central America is adding the urgency of large numbers to this question. So far, the prospects for asylum look better for women and children who are victims of domestic violence than for kids who enter the U.S. alone to escape the net of gang recruitment. Does the distinction make legal sense?

The wave of unaccompanied minors pouring over the border was the summer’s immigration crisis. It turns out that families entered in almost identical numbers. Through August, the U.S. Border Patrol counted just over 66,000 unaccompanied minors for fiscal year 2014 and also just over 66,000 kids entering with one or both parents. The Obama administration has struggled over how to handle both groups. The government’s first move was to speed up the deportation process with rocket dockets, turning people around at the border rather than affording them more legal process. Immigration lawyers fought back, arguing that in the rush, valid claims for asylum could be swept away. The American Immigration Lawyers Association has spearheaded an effort to represent immigrants in detention centers like Artesia, a makeshift shelter for women and young children 200 miles from El Paso. And a long-awaited ruling on domestic violence in August has given the lawyers a new tool.

To be eligible for asylum in the United States, an immigrant crossing the border has to pass two initial tests in interviews. She has to convince both a border agent and a second immigration officer with more training that she has a credible fear of persecution if she is sent home. If she fails to persuade the first agent, she doesn’t get to the second one—she is quickly deported. If she passes both interviews, she has to prove to an immigration judge that she is part of a particular social group, such as “Chinese women subjected to forced marriage,” that merits recognition as persecuted and that she was abused because she is in the group.

In 1996, the Board of Immigration Appeals, which functions as the country’s central immigration court (with review by the federal appeals courts) “broke new ground” on gender-related claims by “granting asylum to a Togolese woman who fled her country to escape female genital cutting,” as Blaine Bookey, a staff attorney for the Center for Gender and Refugee Studies, explains in this 2012 article. The idea was that the risk of cutting both depended on gender and was widespread in some African countries.

Domestic violence, however, didn’t easily get the same kind of recognition as a basis for persecution worthy of asylum. In 1999, the Board of Immigration Appeals rejected the asylum claim of Rody Alvarado Peña, a Guatemalan woman whose husband, she testified, treated her “as something that belonged to him and he could do anything he wanted.” Alvarado said she spent 10 years suffering frequent abuse, including the dislocation of her jawbone and a kick in the spine when she was pregnant. She was dragged by the hair, pistol-whipped, and raped. When she tried to run away, the Guatemalan police and the courts did not protect her. The BIA accepted that Alvarado had been abused but ruled that she was not part of a recognized social group—“Guatemalan women subjugated by their husbands” didn’t make the list—and that she had not shown she was abused because she was a Guatemalan woman living under male domination.

The BIA’s ruling was controversial—then–Attorney General Janet Reno stepped in to vacate it. But Alvarado’s case and many others remained in legal limbo for years. Some women were allowed to live in the United States in the meantime; others were locked up or sent home. Alvarado was finally granted asylum in 2009, and the Department of Homeland Security acceded to that decision. But without a ruling from the BIA or the federal courts on the larger, systemic questions, immigration judges made case-by-case decisions that were “contradictory and arbitrary,” Bookey wrote in her 2012 article. Bookey analyzed 206 domestic violence asylum cases beginning in 1994, and found 140 grants of relief and 63 denials. She concluded, “To put it plainly, whether a woman fleeing domestic violence will receive protection in the United States seems to depend not on the consistent application of objective principles, but rather on the view of her individual judge, often untethered to any legal principles at all.”

That’s why it was a big deal last month when the BIA ruled in favor of another victimized Guatemalan woman who’d previously lost before an immigration judge. The BIA recognized a new group for purposes of asylum: “married women in Guatemala who are unable to leave their relationship.” That means immigration judges across the country will now also recognize that group. Crucially, the BIA recognized that women could not leave their abusive partners because their local police and courts were failing to protect them. In other words, it’s not enough for a country to have laws on the books that address domestic violence—countries also have to enforce them.

Bookey and other lawyers took the new ruling to Artesia and won two grants of asylum for victims of domestic abuse earlier this month. One was for a Honduran woman. The other was for a woman from El Salvador and her daughter. The victories showed that immigration judges would apply the new BIA ruling beyond Guatemala, and when I spoke to her on the phone, Bookey pointed out that the judge who granted asylum in the Honduran case had one of the lowest grant rates in the country—a sign that the system is changing.

This doesn’t mean, though, that there will suddenly be a huge surge in women receiving asylum based on domestic violence. Victims still have a lot of facts to prove. “Getting hold of hospital records, police reports, and corroborating witnesses is exceedingly difficult for women who flee here,” says Nina Rabin, who directs the immigration law and policy program at the University of Arizona and represents women in detention. “You also have to show you couldn’t relocate to another part of your country, and that will be a hurdle for a lot of women. To bring a successful domestic violence–based asylum claim really does take time and resources.” Yet victims have no right to a lawyer as they try to prove they deserve asylum.

At least they now have clear legal footing to bring a claim, though. That is far less true for kids who seek asylum to escape the gangs whose power is pushing many of them across the border. In 2008, the Board of Immigration Appeals refused asylum for El Salvadoran teenagers who were trying to resist joining the gangs that ruled their neighborhoods. The group of kids targeted by the gang wasn’t “particular” enough, the BIA said. In February, the board rejected two more bids for asylum by teenagers. One was an El Salvadoran who said he’d been shot in the leg after trying to leave a gang called the Mara 18. The second had been beaten and kidnapped by a Guatemalan gang he said threatened to kill him if he refused to join. “The board’s decisions are incredibly results-oriented,” Bookey said. “This is about denying gang-based asylum claims across the board,” though she added that immigration lawyers should still try, since each case is decided on its own evidence.

International law shields refugees from being sent home to protect them from the kinds of harms the world has decided people have an unalienable right to be free from. This is also a tenet of American asylum law. Asylum is far from the only answer to problems like domestic abuse and gang violence. As Bookey pointed out to me, “The real response should be improving conditions in the home country.” But in the meantime, gangs and abusive husbands and fathers wield frightening, unchecked power. It doesn’t take a war to create a serious fear of persecution. That’s the lesson the recent wave of immigration teaches. But it’s a lesson the U.S. government, and legal system, is way too slow to learn.