If there is one theme to the Trump administration’s immigration rules, largely crafted by Jeff Sessions and the White House policy adviser Stephen Miller, it is this: target the most vulnerable.
We saw that at play in the egregious policy, reversed on Wednesday after a public outcry, of separating children from their parents at the border, and warehousing them in cages where they cry for their parents. And we see it in a less-remarked-upon policy shift, too: Sessions’s directive to refuse grants of asylum to women fleeing domestic violence.
To hear Trump tell it, these increasingly authoritarian immigration rules are to protect Americans from the “bad hombres” coming across the border. And transnational gangs like MS-13 are a real threat and do real violence. It’s telling, though, that the Trump immigration policies don’t do anything to target these potentially dangerous men. Instead, they pick off the lowest-hanging fruit: women and children.
What else, other than out-and-out hostility and a desire to hurt the most vulnerable, justifies Sessions’s decision to remove asylum protections from women suffering violence at the hands of their partners? Well, there’s one other thing: misogyny, and the attendant lack of understanding of how domestic violence works.
In his opinion on the matter, Sessions classifies intimate partner violence as “private”, and leveled against women “for personal reasons”. That’s significant because obtaining a grant of asylum requires that the asylum seeker show they are persecuted for their race, religion, political views, national origin, or membership in a particular social group. While of course some men suffer domestic violence as well, and some women are perpetrators, overwhelmingly it is women who are abused at the hands of men – it’s not just “domestic violence”, it’s gender-based violence, perpetrated because men believe they have a right of absolute control over women, and often ignored by law enforcement because, like Sessions, police and governments all over the world considered raping and beating your wife or girlfriend a private, personal matter.
Women who are unable to leave abusive relationships are a particular social group who face particular forms of mistreatment and persecution, which immigration courts have recognized, and which the Board of Immigration Appeals (BIA), which more or less sets broad rules for the immigration court system, also formally recognized in 2014 (even before 2014, many immigration judges found domestic violence to be grounds for asylum; the BIA decision simply formalized it). Sessions used his position to change the rules.
The Trump administration casts itself as a law and order government made up of people who are just enforcing the rules. That’s not true. They are creating new, crueler, tighter rules, including this one.
Years ago, I was a lawyer who did a significant amount of pro bono work on asylum cases. I focused on cases that turned on questions of gender, representing clients who were transgender, lesbian, attempting to escape forced marriage, had undergone female genital mutilation, were HIV positive, and who were escaping domestic violence. I saw firsthand how broken our immigration system is – the years-long backlog of cases, the fact that immigrants aren’t entitled to attorneys and only a lucky few get reliable representation. And I saw why it’s so crucial that we provide safe harbor to those fleeing persecution.
Make no mistake, women who suffer domestic violence in places where the government refuses to protect them are being persecuted. That is what asylum law requires: membership in a particular social group, and a government that is either the persecutor or unwilling or unable to protect you. Women in abusive relationships are a distinct social group. Law enforcement in many nations routinely refuses to protect them.
The reason Sessions offers for removing these protections is the same one that police officers give when they treat partner violence differently than nearly all other forms of violence: it’s personal and private. That law enforcement officers used “it’s private” to shirk their responsibility to protect women is exactly why those women were entitled to asylum protections in the first place. How awful and scary that now, our own chief law enforcement agent uses the same reasoning to draw the same conclusion: that violence against women is personal, private, and none of our business. That reasoning is precisely why intimate partner violence continues to stalk women around the world, and why feminist groups routinely focus on bringing that violence out of the shadows and demanding accountability.
Not every victim of a crime is entitled to asylum – most are not. But when a particular kind of crime is leveled against a particular group of people because of their membership in that group, and when a nation’s government refuses to get involved, that is what asylum is for. Sessions, because of his deep antipathy toward immigrants and his misogynistic worldview that domestic violence is a private family matter, has undercut this promise of safe harbor – and taken a law meant for protection and turned it into a cudgel of sexist cruelty.