What is asylum?
Asylum is for people who are afraid to return to their home countries. It is like refugee status except that you apply from inside the U.S. as opposed to filing from your country of origin. It is not an easy or fast process, and it is not something you should do without help from a lawyer who knows how to do asylum cases. If you fear going to your home country because of domestic violence or sexual assault that you experienced there, make sure your attorney has experience applying for asylum for domestic violence and sexual assault survivors; not all immigration attorneys do.1
The biggest problem for getting asylum status for those who experienced domestic or sexual violence in other countries is that the law was created before violence against women was generally recognized as problems or crimes. Although our government has granted asylum on the basis of domestic or sexual violence that was committed in another country, it is still very difficult to win this type of asylum claim because of the way the law was written.
Because asylum is complicated and the rules change a lot, this section will not tell you how you can win an asylum case; it will only outline some of the main things the government says you must show.
1 The Center for Gender and Refugee Studies is a good resource for lawyers, domestic and sexual violence advocates, and asylum-seekers who have questions regarding asylum based on domestic or sexual violence.
Who qualifies for asylum? Will being a victim of domestic or sexual violence qualify me?
To be eligible for asylum, you must show that:
- you were or will be “persecuted” in your home country; and
- at least one central reason for the persecution is your race, religion, nationality, membership in a particular social group, or political opinion.1
It is not enough to just prove that you were the victim of domestic or sexual violence. You also must show that whoever abused you did it because of your race, religion, nationality, political opinion, or because you are in a group that is targeted for persecution (a “particular social group”). For example, perhaps you can show that the abuser justified his/her actions because of your race, religion, nationality, or political opinion.
In many cases, however, the abuser commits domestic or sexual violence because s/he believes that it is his/her right to treat the victim as property, as a second-class human being, or as a slave – and the abuse is one way to keep that person under the abuser’s control. If this is the case, this is not enough to get asylum. Our asylum system does not acknowledge that domestic and sexual violence are widespread weapons of “persecution” used against women to “keep them in their place.”
1 INA § 208(b)(1)(B)(i); 8 USC § 1158(b)(1)(B)(i)
What does "persecution" mean? How do I prove that the government was unable or unwilling to protect me from persecution?
Proving that you did or likely will suffer from persecution is a key element in proving asylum. However, the laws do not specifically define the term “persecution.” In past asylum court cases, it has been defined as causing (inflicting) suffering or harm upon those who differ in race, religion, or political opinion, in a way regarded as offensive.1
Another important part of proving your asylum claim is proving that the source of the persecution is the government, a quasi-official group, or a person or group that the government is unwilling or unable to control.2
If you are claiming asylum based on domestic or sexual violence, in order to show that your home country’s government is unable or unwilling to protect you, here are some points that you should discuss with your attorney and your domestic or sexual violence advocate:
- Did you report the domestic or sexual violence to the authorities in your home country?
- If you did report the abuse, what happened? What did the authorities do?
- If you reported the domestic or sexual violence, and the authorities did try to help you but the abuser still threatened or harmed you, then this could be an example of your government being “unable” to protect you.
- If you reported the domestic or sexual violence, and the authorities did not even try to help you, then this could be an example of your government being “unwilling” to help you.
- If you didn’t report the abuse to the authorities, why not?
- Sometimes it’s pointless or dangerous to report to authorities. If it’s well-known that they will do nothing for domestic or sexual violence survivors, for example, then the argument can be made that it’s pointless to report it and you should not have to do it.
- Sometimes reporting abuse to authorities is not just pointless, it’s dangerous. For example, if it’s well-known that the authorities will tell abusers and rapists about the people who report them, it’s dangerous. Especially if the person who abused you is a powerful person in your community or works for the authorities, it may be very dangerous to report the domestic or sexual violence.
- If you did report the abuse, what happened? What did the authorities do?
- If it was pointless or dangerous to report abuse to your local authorities, you can work with your attorney and advocate to show that this is because your government can’t or won’t protect you against the person who abused you.
1 See, for example, Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018)
2 See, for example, Avetova-Elisseva v. I.N.S., 213 F.3d 1192 (9th Cir. 2000)
Is being a woman enough to prove I am part of a "particular social group?"
In order to prove membership in a “particular social group,” it is important to know that our asylum system does not yet acknowledge “women” and “gender” as “social groups.” Instead, victims of abuse must show they are in a smaller “social group” than just women; but our asylum system keeps changing its mind on what people must show to be in a “social group.” This makes it very hard to do an asylum application on your own, and it is one reason why you must work with an attorney who is up-to-date on the latest government policies and federal cases. It is also why you may want to talk to your lawyer about whether you were abused or raped because of, for instance, your “political opinion” that the abuser did not have the right to control you. Even if you can show this, however, you will have to show:
- how you made that opinion clear;
- that this is why you were abused or sexually assaulted; and
- that your government would not or could not protect you. Note: This last requirement is an example of a requirement that was added by our government and is not in the statute.
If I plan on coming into the U.S. by crossing the border, how do I ask for asylum?
In order to ensure that people fleeing persecution who arrive at the U.S. border are not immediately turned away, Customs and Border Protection (CBP) officers are supposed to ask people without a valid visa or immigration status if they fear persecution in their homeland. If you say “yes,” you should get what is called a credible fear interview. During the credible fear interview, you will be asked a series of questions about what fear you have related to returning to your homeland. If you “pass” the credible fear interview, which means that the officer finds that there is a “significant possibility” of winning on a claim for asylum, then you should receive a Notice to Appear (NTA) in immigration court and will be placed in removal proceedings before a judge where you can ask the immigration judge for asylum and try to prove your case.
However, the government frequently makes changes to this system. Do not assume that anyone in our immigration system will ever ask you if you fear going back to your home country. Instead, be ready to say it for yourself, more than once if necessary, and say why you fear being sent back to your home country. Ideally, you should have the name and phone number of a lawyer handy who you met prior to arriving in the U.S. – if so, ask to call your lawyer or tell the officers to call your lawyer if they won’t let you call her or him.
You can read more information about how to pass a credible fear interview on the Immigration Equality website.