Administration’s anti-immigration stance could undo 2014 ruling granting a sliver of hope to women fleeing from harrowing violence to seek refuge in the US

When Elbia fled her tiny hamlet in Guatemala, she left behind years of abuse at the hands of her boyfriend. The breaking point came after he beat her so badly that she became wedged between the slats of their bed. Some time later, she and her four-year-old son walked into the mountains that loomed above the family’s house – the first step on her months-long path to the United States.



Now, she is at the end of that harrowing journey. Elbia, whose name has been changed to protect her identity, appeared recently before an immigration court in Eloy, Arizona, to plead for asylum.

“I am starting to learn that what happened to me was not my fault and that I have rights,” she said in her petition to the court. “This is my dream: to live a life free from violence.”

Immigration advocates have been doing battle over the fate of women such as Elbia for more than a decade. Arguing that people who are fleeing gender violence ought to qualify for asylum, they have notched critical court victories for victims of female genital mutilation, forced marriage and homophobic violence.

In 2014, the country’s immigration high court issued a landmark ruling that some women escaping pervasive domestic violence may qualify for asylum in the US.

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But under a president who rode a wave of anti-immigration sentiment into office, advocates fear these achievements, and the futures of thousands of women are in danger.

Taken together, Trump’s various executive orders on immigration will make it harder for asylum seekers to reach the US, force them to spend longer in detention, and make it harder for them to succeed in immigration court if they don’t give up first, say advocates. Trump’s original order on immigration – the travel ban – even led some Customs and Border Protection officials to refuse to allow asylum seekers to file new claims.

Another document, issued by the justice department, has already begun to transform what used to be a straightforward evaluation of an asylum seeker’s credibility into something more closely resembling a full-blown judicial hearing.

Asylum seekers coming over the southern border have always had to pass the credibility stage before making their case to a judge. But with the standard of evidence now ratcheted up in the credibility hearing, say advocates, it’s as if asylum seekers are having their case adjudicated twice – and in the credibility hearing, there’s no chance to present evidence or witnesses.

“The cumulative impact of the orders is to make it much harder for people to be successful,” said Karen Musalo, the director of the Center for Gender & Refugee Studies, which, along with the Florence Project, provided Elbia’s representation.

Jeff Sessions, the newly appointed attorney general and a longtime opponent of immigration, has the power to personally overturn the nation’s highest immigration court. And there are calls for him to decertify that landmark case of 2014.

Anti-immigration advocates have long desired no less than a wholesale reversal of decades of asylum policy. And now those groups have the ear of the administration.

‘Women do not find protection’

Elbia was 14 when a 15-year-old boy approached her at a village festival and pressed her to be his girlfriend. He persisted, refusing to accept no as her answer. By the time she was 16, she was living with him in his family’s home.

It was after she gave birth to their son that he began to abuse her. Aside from beating her, her boyfriend spent so heavily on his drinking problem that there was hardly money to feed their child. When she refused to have another, he raped her.

He made threats to kill her. Over three years, she recalled: “I can’t remember all of the times that [he] beat and raped me.”

Facebook Twitter Pinterest Women walk past the covered-up dead body of a woman in Guatemala City. Central America encompasses some of the countries with the world’s highest rates of femicide. Photograph: Jorge Lopez/Reuters

US asylum law protects people who are persecuted on the basis of their race, religion, nationality, political opinion or particular social group. It does not explicitly protect people who are persecuted because of their gender, but a series of court rulings has recognized specific groups of woman as protected “particular social groups”.

The ruling in 2014 recognized “married women in Guatemala who are unable to leave their relationship” and gave women firm ground on which to make their asylum claims.



The argument for the validity of that ruling goes like this: in Guatemala, domestic violence against women is a pervasive and societal problem. The country’s law enforcement is both unable to stand in the way of abusers and unwilling, because of attitudes about women’s rights. Domestic violence is not a private, household problem, but one that is nation and cultural, similar to female genital mutilation or forced marriage.

The argument against granting women such as Elbia asylum holds that there are just too many women like her.

“Our country is not a battered woman’s shelter,” said the rightwing provocateur Ann Coulter said on Sean Hannity’s radio show. “We’re not here to take in all the charity cases of the world.”

But immigration advocates note that it is already extremely hard for women to claim asylum in the US from domestic abuse.

Over the past six years, according to an analysis conducted by researchers into judicial trends at Syracuse University, the US immigration system has become increasingly polarized between judges who overwhelmingly approve asylum claims or deny them. The disparity has increased so sharply that today, the judge assigned to hear a case is single best predictor of the case’s outcome.

At the same time, the odds have tipped against asylum seekers. Denials rose at an unprecedented rate from 2015 to 2016. People from Mexico, El Salvador, Honduras and Guatemala, where a wide variety of violence forces people to flee, face the slimmest odds of winning their claims.

Elbia’s asylum claim was designed as the perfect test case in this hostile landscape. The facts of her case are almost identical to that landmark ruling of 2014, and her attorneys assembled an elite scrum of expert witnesses to testify to the danger – persecution, in their words – Elbia would face if she were returned to Guatemala. The case unfolded in a region of Arizona where immigration judges have a sky-high rate of denial.



A judge heard her case on 17 February, and a little under one week later, he called her attorneys to say he was granting her asylum. She could stay.

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But many others won’t be so lucky, one of her lawyers fears. “The fact that it took a national expert on this issue to come in, work on this case, develop the supporting testimony, and marshall pretty significant resources to win what should be a pretty straightforward case tells you everything,” said Blaine Bookey, a staff attorney for CGRS.

And those were just the hurdles she faced inside US borders. In her affidavit, Elbia described a months-long journey that nearly cost her her life. “I slept under the trees and in a cave,” she said. “I found bones of dead people in the desert.”

But the alternative, she said, was more horrific.



“My mother-in-law told me that she went to file a complaint a few times with the police against my father-in-law, but they did not do anything to help her,” she said.

If she had stayed in Guatemala, she anticipated that her partner would hire a gang member to find her. “The government wouldn’t give me any protection from Abuser no matter where I am in the country,” she said. “Women do not find protection. They have to keep suffering up until they are killed.”