The Obama Administration Pledged to Fix the Asylum System for Women. 6 Years Later…

The legal hellscape where persecuted women beg for protection.

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I meet Melanie, 23, at the DC office of the immigration attorney who’s been handling her quest for for asylum here in the United States. She is zaftig and chic. Her fingernails, big enamel earrings, and the tips of her Afro are all the same brilliant shade of scarlet. From our chitchat, I can tell that on a normal day, she is calm, and collected. But not today. We’re here for her to recall the worst hours of her life.

It started when she was 19, Melanie tells me. Josef, a powerful friend of her father’s who is the head of her sub-Saharan country’s intelligence service, began sending her lascivious text messages: I love you. Will you go out with me? You have to see me.

When she changed her number, she says, he used his power as intelligence chief to find her new number. (At her request, we have changed both their names and withheld the name of her country.) When she ignored him, men in street clothes pulled her into a car and drove her to his office, where he threatened her with death if she didn’t sleep with him. Her father soon lost his position with a national company, Melanie says, and he spent weeks in jail. How about the police? I ask. Melanie snorts. “There’s no calling the police. The police work for him.”

“There’s no calling the police. The police work for him.”

Last summer, according to the account Melanie provided in her asylum application, Josef called her while she was jogging. He said he would see her soon. Two men appeared and dragged Melanie into a car as she writhed and screamed for help. They drove her to the outskirts of the city, where Josef was waiting. “Now you understand that I get what I want,” he said, Melanie recalls. He kicked her in the stomach and raped her.

In the summer of 2013, two months after her rape, Melanie obtained a student visa to attend college in the United States. But she didn’t have the money to go to school. Instead, upon getting off the plane, she petitioned the government to grant her asylum.

And with that, Melanie became part of a roiling dispute over the place of women in asylum law.

In order to win asylum in the United States, it’s not enough to have suffered, or even to have suffered at the hands of your government. Asylum seekers have to show that their persecution is the result of their membership in a racial, religious, national, political, or social group. This last category functions like a catch-all for groups that aren’t captured in the language of the law. Immigration attorneys have had success using the “social group” designation to protect gay and lesbian asylum seekers, for example, going back to the 1970s. But US immigration courts are furiously divided over what this means for someone like Melanie: Should being a woman count?

Melanie’s future depends on how the immigration judge she’s assigned answers that question.

“The law is a mess,” says Simona Agnolucci, a California patent attorney who represents asylum seekers pro bono. “There’s huge variation among which women will do best before immigration judges.”

Immigration advocates like Agnolucci have agitated for US courts to recognize that women in many countries are persecuted because their governments won’t or can’t protect them. Some Western countries already consider gender in asylum claims. Canada issued guidelines for granting asylum from gender-based persecution in 1993, and several European countries have done the same. In the US, Congress, the Department of Homeland Security, the Justice Department, and the country’s top immigration court all have the power to settle this issue. But so far, none of them has done so.

“It’s not because these judges are sexist. It’s because they haven’t received any guidance.”

Melanie’s reasons for fleeing her country are unique. But so are most women’s. In the past decade, courts have heard from women claiming membership in groups like “Salvadoran women unable to leave domestic relationship,” “Christian women in Iran who do not wish to adhere to the Islamic female dress code,” and “female members of the Bulu tribe who oppose polygamy.” There have been victims of rape, forced marriage, and domestic violence, women threatened with honor killings, and women accused of witchcraft. Whatever their different circumstances, they all face the same problem: Without membership in a protected class, their chances of winning asylum are doomed.

In a few circumstances, the law is well established. Most of the nation’s courts recognize women who fear female genital cutting as members of a group who may qualify for asylum. But only one federal appeals court has similarly recognized victims of forced marriage.

“It’s not because these judges are sexist. It’s because they haven’t received any guidance from on high,” says Bruce Einhorn, a retired immigration judge and part of a Justice Department team that Congress consulted when writing the US asylum statute in the 1980s. Today, he runs a nonprofit group that advocates on behalf of asylum seekers.

Without that guidance, it’s common for judges to conclude that the horrors women experience in other countries are just crimes; they’re not targeted at women as a group. “Some judges say, ‘This man didn’t beat his wife because she was part of a protected class—he did it because he was drunk,'” Agnolucci says. “But the authorities don’t do anything to help these women. And that’s why these women are entitled to asylum. There is no judge, no police officer, no court, nobody to help them. They live in a society where there is no recourse under the law.”

In 2000, then-Attorney General Janet Reno proposed rules to address this problem by clarifying that gender is an acceptable basis for creating a protected social group. But the rules went nowhere during the final days of the Clinton administration, and the incoming Bush administration did little to advance them. When Obama took office, though, a monumental policy change seemed imminent. That year, the Justice Department promised to issue a new version of Reno’s rules, and congressional Democrats piled on by holding a hearing on the issue. The Justice Department has spent the past several years drafting rules based on Reno’s proposal. But those rules appear to be stalled now. Immigrant rights activists suspect that the Obama administration has been cowed by the politics of immigration reform. A spokeswoman for the DOJ declined to comment on the rules.

Immigrant rights activists suspect that the Obama administration has been cowed by the politics of immigration reform.

Lacking clear rules, immigration judges have rendered wildly diverging decisions—setting different precedents—on cases involving very similar circumstances. Take the cases of Johana Cece and Vitore Rreshpja, two twentysomething women who narrowly escaped kidnapping by sex traffickers in Albania. Because they applied for asylum in different states, their cases eventually ended up before two different federal appeals courts, which made opposite rulings. The rulings established two wildly different precedents in the 6th and 7th circuits. Now, a sex-trafficking victim who lands in Indiana has a much better chance of winning asylum than a victim with an identical case in Ohio, who has almost no chance.

In the absence of executive or legislative action, the nation’s top immigration court, the Board of Immigration Appeals, is starting to take action on its own. In August, in response to one Guatemalan woman’s asylum claim, the BIA ruled that “married women in Guatemala who are unable to leave their relationship” are a social group under the law. The ruling gave hundreds of Guatemalan women who flee domestic violence the legal right to ask for asylum, although not a guarantee they will get it; immigration judges still weigh factors like credibility, and whether the treatment rose to the level of persecution.

This was the BIA’s first decision on matters pertaining to female asylum seekers in 14 years. Immigration courts are expected to apply this ruling to women from other troubled countries who are fleeing domestic violence. There is no telling, though, when the court, which has more than 20,0000 other immigration cases pending, will get around to ruling on other categories of women. There is intense political pressure from conservatives against “opening the floodgates”—the idea that each new protected category would cause a tidal wave of asylum seekers to enter the United States. Steven Camarota, a member of the far-right Center for Immigration Studies, summed this argument up when he groused that BIA’s August ruling was so broad that “tens or hundreds of millions” of women will soon be pouring over America’s border.

Advocates for clarifying the law chafe at this notion. Lisa Frydman, the director of the Center for Gender and Refugee Studies, notes that immigration judges, the BIA, and US federal courts have recognized many broad groups, including Coptic Christians living in Egypt, a group of at least 4 million people. And there is a category for practically anyone who defects from Cuba, an island of 11 million.

“The reality is that most women who need asylum never get to the US,” Einhorn says. “They just don’t. We are dealing with only a fraction of women and girls who need protection.”

“We are dealing with only a fraction of women and girls who need protection.”

Melanie, because she wasn’t in a domestic relationship with her rapist, isn’t going to benefit from the BIA’s recent ruling. But she has powerful evidence for her argument that she was not just abused, but persecuted. Josef’s intelligence agency has been singled out in several international human rights reports. When Melanie was younger, in order to avoid Josef, she went abroad for school. Melanie says that Josef let her know, when she returned, that he had tracked her movements outside the country.

Josef raped Melanie in that house over the course of two days, she says, until she couldn’t walk. Once Melanie was in the United States, her mother reported Josef to the police. Her mother knew it was a bad idea, Melanie says, but she couldn’t stop herself: “She was like, ‘I cannot just sit here.'” In late 2013, Melanie’s father received a summons to go to their local police station. He hasn’t returned.

I ask Melanie what she expected when she came to the US. “Just a safe country,” she says. “Somewhere I can hide and get a life.” But without knowing how her asylum case will be decided, she says, she can’t relax. “You never know what time they may call you and say, ‘No, we don’t believe you.'” When Melanie sleeps, she is wracked by night terrors. Last summer, an anxiety attack sent her to the hospital. She lives with strangers—her mother’s friend or a friend of a friend. On many days—especially before she obtained her work authorization, and had nothing to distract her—she locks herself in the room where she sleeps and lies on the floor.

On the walk from her lawyer’s office to the Metro station, Melanie tells me about the person she used to be. The student who kicked ass in math class. The person who loves languages, and taught herself English as a little girl from books and movies. Back then she liked romance movies. “Not anymore. Now I like horror movies,” she says. Movies like The Exorcist, with demons and evil spirits. “Because those are real.”