Women on the Run

“Women on the run” is how the U.N. High Commissioner for Refugees describes the population of Central American mothers (and children) at the U.S. / Mexico border. In a recently issued report, UNHCR describes the “surging tide of violence in El Salvador, Honduras and Guatemala,” both domestic and gang-related, that is forcing thousands of mothers and children to escape to their great hope of refuge: the United States. In 2016, CBP apprehended more than 50,000 women and unaccompanied minors fleeing those three countries.

One would be hard-pressed to characterize these terrified women and children as national security threats, yet they have borne the brunt of some of our harshest border policies enacted in the name of “keeping America safe.”

In the summer of 2014, a dramatic increase in the number of asylumseeking families from Central America led the Obama administration to adopt a number of stringent policies, including rapidly expanding the use of family detention centers at the southern border and increasing the use of expedited removal proceedings. The stated rationale for these harsh policies was to deter others from making the trip. However, the number of women and children migrating has continued largely unabated. These women face a stark choice between saving themselves and their children by fleeing—or remaining in place to be attacked or killed. As case after case confirms, there is no in-between.

As recently as March 2017, President Donald Trump’s DHS secretary, Gen. John Kelly, announced his policy to separate women from their children as a deliberate “deterrent to other mothers” who would consider the U.S. as refuge. The ensuing outrage by virtually everyone who understands immigration and/or has a soul created pressure that discouraged Kelly from formalizing motherchild separation as standard ICE and CBP policy. But he continues to assert that “some circumstances” would still warrant its use.

And on April 11, 2017, Attorney General Jeff Sessions used a visit to the Arizona-Mexico border to double down on his position that anyone seeking entry be subject to the most vigorous enforcement, saying, “We will now be detaining all adults who we apprehend at the border.” He coupled that promise with a companion memo threatening felony prosecution for women who have made multiple attempts to enter the country—which puts them in the same category as felons and gang members. As it is, here are no legally binding requirements for how these women are treated, only recommendations. Complaints about sexual abuse, lack of medical treatment, overcrowding, shackling and solitary confinement abound. Sessions’ memo did not address these well-documented abysmal conditions.

Finally, despite adding $1.4 billion dollars to the ICE budget, it appears Sessions has not earmarked additional resources for asylum processing. The reason is clear: Any increase in asylum cases would cut into the statistics Sessions will cite to prove his “detention and removal” policies are working, since thousands of women behind those statistics would not be removed but would be applying for asylum if given the opportunity to do so.

A report by the Harvard Immigration & Refugee Clinical Program on the impact of President Trump’s executive order on asylum seekers recently summarized:

The Border Enforcement Order calls for a massive expansion of the existing system, greatly increasing the number of refugees and other migrants subject to detention. There are no exceptions made in any of its provisions for asylum seekers… The Border Enforcement Order mandates that offenses with a nexus to the southern border, such as unauthorized entry and re-entry into the United States, be priorities for enforcement.

This provision of the executive order will increase the number of mothers who face a terrible choice: either prolonged lockup in remote detention centers where they are cut off from virtually all contact with their children and the outside world, or “expedited removal” back to their abusers, with no hearing, no due process and no counsel. The choice is all the more draconian since, once taken, this type of deportation makes subsequent attempts to enter the U.S. subject to serious criminal penalties.

Ironic, then, that U.S. law clearly recognizes asylum claims made by women escaping domestic violence. Those who have the opportunity to make a successful claim can remain in the U.S. permanently, living in safety and peace. The key legal pillars needed to respectfully and compassionately treat the flow of women and children through our southern border are already in place.

This was not always the case. Indeed, the history of recognizing domestic violence as a basis for asylum in the U.S. is a tortured one. It took more than 20 years and many cases involving primarily Mexican and Central American women fleeing horrifying levels of violence before our government accepted that such women could fit into the framework of asylum law.

Karen Musalo, director of the Center for Gender and Refugee Studies at UC Hastings College of Law, led the way, litigating a series of pathbreaking cases on behalf of domestic violence survivors—each with a fact pattern of abuse more shocking than the one before it. While several cases resulted in individual asylum grants, these were not binding on other decisions. Each case had to reinvent the wheel. Finally, in 2014, the Board of Immigration Appeals, the highest administrative court in the immigration system, issued a precedent-setting decision that a Central American woman who fled severe persecution by her husband qualified for a grant of asylum. Today, a woman seeking asylum needs to show domestic violence so severe it amounts to persecution, an abuser motivated by her inability to escape the relationship, and a government unable or unwilling to protect her from the violence. Alas, these are not exotic criteria for thousands of women seeking help at our border.

Now that the law recognizes the right of domestic violence survivors to apply for asylum at our border, the response to the flow of women is clear: Just follow the law. We need to increase the number of U.S. asylum officers, training them in both U.S. asylum law and the specific country conditions in which Central American women find themselves the targets of sustained, government-facilitated violence. We need to adjudicate the women’s applications for relief in a timely fashion while the women remain outside detention. We need to provide timely immigration judge hearings as a de novo review. It is truly that simple, but only if there is the political will to do justice.

This is an excerpt from a longer piece in the Summer issue of Ms. Subscribe today to read the rest!

Nina Rabin is the director of the University of Arizona, James E. Rogers College of Law, Bacon Immigration Law & Policy Program.

Roxana Bacon has practiced, taught and written about immigration law for more than 40 years. She is a former chief counsel to U.S. Citizenship and Immigration Services.

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