Re-Emerging Nationality and Gender Preferences in Trump’s Refugee Policy Rollback

By Sara L. McKinnon | September 28, 2017

With yet another announcement of changes to the U.S. refugee program, it is necessary to assess the program and what Trump’s policy changes will likely mean in the lives of refugees and asylum seekers, including their specific implications for women.

The passage of the 1980 Refugee Act established two processes by which displaced persons can gain legal recognition as refugees to the U.S.—refugee resettlement and asylum. Refugee resettlement happens when groups of people from the same place flee their homes because of long-term conflict and are granted the right to come to the U.S. Asylum seekers arrive as individuals or families within or at the country’s borders to make legal cases that their experiences or fears have rendered them refugees. Prior to 1980, the asylum system was haphazard and the President, through parole powers, had significant discretion in determining which groups and how many people would be welcomed as refugees. This pre-‘80s approach is making a return, both in the discretion of the executive office to determine the details of refugee admittances and in a narrowing of asylum processes to the detriment of women applicants.

The policies implemented by President Trump in less than a year are impacting the ability of both asylum seekers and refugees in the resettlement program to make their homes in the U.S.

The January 27th Executive Order, “Protecting the Nation from the Foreign Terrorist Entry into the United States,” for example, reduced annual admittances through the refugee resettlement program from 110,000 to 50,000. It also introduced a 120-day suspension of refugee resettlement activities, and indefinitely halted programs to resettle refugees from Syria. Under the new travel ban issued on September 24, 2017, individuals from Iran, Libya, Syria, Yemen, Somalia, Chad, and North Korea are prohibited from travel into the U.S., and reports indicate that they will also be banned from refugee resettlement opportunities. Just today, the president announced that he would limit refugee resettlements even further, the cap moves from its current 50,000, introduced in January, to the lowest cap in the history of U.S. refugee resettlement—45,000 refugees a year.

And when it comes to the asylum system, preferences for particular types of refugees seem to be creeping back into the process.

First, there continues to be a preference for particular nationalities. For example, if you are an asylum seeker from Guatemala, El Salvador, or Honduras you have about a 4% likelihood of having your case approved. If you are from China, your chances of approval are closer to 50%. Second, formal and informal policy are negatively impacting women asylum seekers. Starting on June 20, 2017 the executive office ended a program that kept asylum seekers with particularly challenging circumstances out of detention centers while awaiting their asylum determination. This means that more children, pregnant women, persons with severe physical and mental health, and families with small children are to be detained in prison-like conditions for the months and years it may take for their cases to be heard by immigration judges. Third, at the U.S.-Mexico border, reports of an administration-level informal policy have arisen: according to Human Rights Watch, migrants with claims to asylum have been denied entrance, with border agents insisting that the U.S. asylum program has ended.

Attorneys General have significant influence over the asylum process.

In addition to appointing judges to the immigration courts and the Board of Immigration Appeals, the Attorney General—currently former Congressman Jeff Sessions—has the right to take charge of individual case decisions as well as broader policy decisions. In the past, this discretion has had significant consequence for gender-based claimants, such as Guatemalan domestic abuse survivor Rody Alvarado. Alvarado was first granted asylum in 1995, but attorneys for the immigration and customs office appealed and her asylum status was revoked. Six years later, just before leaving office, then-Attorney General Janet Reno vacated the denial, giving the lower courts instructions for re-approving Alvarado’s case. Reno’s successor, Attorney General John Ashcroft, took the case back from the lower courts, only to sit on the decision for the entirety of his term in office. Alvarado wouldn’t finally receive notification of her asylum until 2009—14 years after her first asylum application. If Attorney General Sessions’ history on gender and sexuality issues is any indication, future asylum seekers making gender-based claims will likely share Alvarado’s experience and more individual asylum cases will be repurposed to guide U.S. refugee policy.

The particularly poor record regarding the U.S.’s acceptance of women refugees is not surprising.

Almost as soon as the 1980 Refugee Act was established, immigration courts began to hear the asylum cases of women fleeing sexual and gender-based violence (SGBV) from countries around the world. They testified to social repression and castigation, fear of genital cutting, severe intimate abuse, forced abortions and sterilization, and sexual violence at the hands of military and police, as detailed in my book, Gendered Asylum: Race and Violence in U.S. Law and Politics. Save for rare exceptions like Rody Alvarado, women fleeing gender-based violence run up against a very basic problem: the way gender, as a category, is defined and understood.

Like most countries, the U.S. draws on the United Nations definition of a refugee as someone who is outside of their home country and has a well-founded fear of persecution on account of their race, religion, nationality, political opinion or membership in a social group. Gendered asylum seekers are an awkward fit since, under this definition, gender is only ever given segregated and contingent protected status. Each woman making a claim to gender-based asylum must start from the basis of developing a unique description of her social group membership. There is no a priori recognition that gender counts as a “social group,” and immigration courts have asserted that it’s too broad a category on its own.

Gender-based asylum claimants consequently find themselves maneuvering significant rhetorical hoops and hurdles before they are even able to assert that they are, in fact, refugees.

Including gender or sex as a protected category in the refugee definition might reduce one barrier for these applicants, but it is clear from more than three decades of asylum case law that there are other significant hurdles. For example, asylum seekers must demonstrate that their persecutors identified them as a member of the named social group and persecuted them because of that identity. That is, immigration judges demand a type of evidence that is unlikely to exist: the assertion, by an abuser, that “I am violating you because you are a woman who resists male domination” before or during the abuse. Claimants must also show that their persecution is political. Not only are women asylum seekers all too frequently seen as private actors without connection to the political, but the violence that women experience—often sexual in nature—is commonly accounted not as a political act of power or control but as the result of an individual’s personal desires or opinions. If immigration judges hold these beliefs about women and sexual violence it can be hard to demonstrate a clear political connection for the persecution and make a case for gender-based asylum.

The discretionary powers of the executive branch meant, in the pre-1980 era, that there were vast discrepancies in who could access the U.S. asylum system. Under Trump, gender and nationality are poised to revive and exacerbate such discrepancies. Those concerned about international human rights must insist that who “counts” as a refugee cannot depend on setting parameters around categories such as gender or nationality as preconditions for protection.

Sara L. McKinnon is Associate Professor of Communication Arts at the University of Wisconsin-Madison. You can follow her @saralmckinnon

Photo of the Nyabiheke Refugee Camp by Elisa Finocchiaro