Immigrant victims of rape or gang violence now have a better shot at getting asylum

Starting when she was 5 years old, Areli said, her father raped her and took money from other men so they could do the same. She said he told her she deserved her lot in life because she was “a girl and not the boy he always wanted.”

After years of moving from town to town in Guatemala to elude him, she immigrated to the U.S. in 2018 to ask for refuge.

But her odds of attaining asylum grew dismal during the Trump era. Immigration rulings issued during the administration made it nearly impossible for people such as Areli to seek asylum in the U.S. over credible fears of domestic abuse or gang violence.

Areli, 41, whose surname is being withheld because she is a rape victim, had a difficult time finding an attorney to take her case. She worried U.S. officials would deport her to Guatemala, where she believed her father would find her.

“I know he would have killed me,” she said. She almost lost hope.

That’s now changed. In June, the Department of Justice reversed rulings by Trump administration attorneys general that had made the asylum process more difficult for those fleeing violence by private actors, including domestic partners, gangs and those persecuted “due to family ties.”

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The rulings by Jeff Sessions and William Barr broke with precedent and overturned decisions made by immigration appellate judges, who had for years allowed asylum claims based on domestic abuse or gang violence. Current Atty. Gen. Merrick Garland’s orders restored the precedent, allowing the possibility of asylum protections for victims of domestic abuse or gang violence.

The change has dramatically improved the chances for Areli and tens of thousands like her with applicable cases in the system — including in appeals — to gain asylum.

“God willing, I’ll win my case,” Areli said.

Areli said she did everything she could to survive in her country before deciding to flee.

After her father sold her into marriage at age 12, she thought she’d finally escaped her situation. Areli said her husband turned out to be supportive, and she started her own family. But then her father started coming around and looking for her when he discovered that Areli had given birth to a baby girl.

“He wanted to do the same with my daughter that he’d done to me,” she said. “He told me I owed him.”

She and her husband moved around for years to try to elude him. Her mother — who Areli said was also abused by her father — would sneak a call to her daughter to warn her of her father’s next move.

But when Areli’s mother unexpectedly died three years ago, Areli said she knew she was no longer safe in Guatemala. For years she had gone to police officials to report her father, but they always told her they couldn’t do much because “it was a family dispute.”

“Women in my hometown didn’t have a voice,” she said. “They don’t have the same worth as a man.”

A few months after burying her mother in the fall of 2018, she and her family fled Guatemala and gave themselves up at a U.S. port of entry near Reynosa, Texas, where they asked for asylum.

After a time in detention, she and her family were released and allowed to follow their immigration case while living in Los Angeles, where she has a relative who has helped her. Since then, she has had permission to legally work. But her case and thousands of others are winding through backlogged immigration courts.

Areli’s attorney, Aaron Chenault, who’s based in Los Angeles, describes his client as a textbook example of someone who deserves asylum. “But in immigration court, her case still looked bleak because of these rulings,” he said.

Both of the precedent cases at issue — known as Matter of A.B. and Matter of L.E.A., designating the initials of the two Central American women involved —were made by the attorney general’s unique certification power. Immigration courts, unlike the rest of the federal court system, fall under the direction of the Justice Department. The certification power enables attorneys general to overturn decisions made by immigration judges and set precedent, as Sessions and Barr did.

Asylum applicants must establish a well-founded fear of persecution because of “race, religion, nationality, membership in a particular social group, or political opinion,” according to U.S. Citizenship and Immigration Services guidelines.

Asylum seekers also have to prove that their home government is complicit in their persecution or unwilling or unable to stop it.

The legal argument over who should qualify for asylum hinges on the interpretation of which seekers belong to a “particular social group.” Past administrations had agreed that persons fleeing domestic abuse or gang violence could be regarded as being persecuted on the account of being in a “particular social group.”

Since 2014, when the Board of Immigration Appeals granted asylum to a 41-year-old Guatemalan mother of three who was repeatedly beaten and raped by her husband, immigration judges have recognized domestic violence as a basis for granting asylum.

But when Sessions became attorney general, he argued that asylum claims had been mistakenly expanded to include victims of “private violence” such as domestic or gang violence.

Chenault, the immigration attorney, said that although Areli will be able to benefit from Garland’s order, others aren’t so lucky. He said he has had many clients who were protected under one administration but then suddenly found themselves out of luck by the time their case made it before an immigration judge.

“Anything related to a domestic violence or gang violence case was pretty much met with a blanket denial,” he said. “I’m very much happy that we are going back to allowing immigration judges to issue a decision on a case-by-case basis.”

Although Garland’s decision will carry weight for many cases backed up in an overburdened immigration court system, the effect on new asylum seekers is essentially moot for now because the Biden administration has kept in place the Trump-era measure known as Title 42, which invokes the threat of the COVID-19 pandemic to expel most asylum seekers as soon as they arrive at the U.S. border.

For some, the policy shift came nearly too late.

Jose, a 20-year-old from Guatemala, was denied asylum in June 2019, despite making the case that he was fleeing gang initiation and violence in his home country.

Jose, who asked that he not be identified by his last name for safety concerns, said gang members started harassing him when he was 15 years old; they shot him twice in the stomach and left him for dead after he refused to join their gang.

After he left the hospital, the then-17-year-old moved in with his aunt in Guatemala City.

“They found out I wasn’t dead,” he said. “And the gang has members in all of Guatemala and Central America. I didn’t feel safe. I knew they would find me and kill me.”

Jose’s case was denied by the Board of Immigration Appeals and then appealed to the U.S. 9th Circuit Court of Appeals. About a month before oral arguments, government officials placed his case in mediation, where he is likely to get some immigration relief.

Jose’s attorney, Meeth Soni, who works at Immigrant Defenders Law Center in Los Angeles, said that although Garland’s order is a “huge” win for many, obtaining asylum based on domestic abuse or gang violence is still a challenge and far from a guarantee.

“My client was at the brink of being deported,” Soni said, “and really having the door slammed in his face forever.”