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The federal government recently proposed sudden and threatening changes to longstanding U.S. legal and policy precedent by issuing the Notice of Proposed Rulemaking, Application of Certain Mandatory Bars in Fear Screenings. The proposed rule would provide asylum officers with the authority to reject asylum seekers during credible fear and reasonable fear (CF/RF) interviews based on certain factors that are currently considered only once an asylum seeker has a full merits interview or full merits hearing before an immigration judge. This change would make it harder for asylum seekers, especially survivors of gender-based violence, to pass these interviews, increasing the risk of erroneous denials.

The proposed rule will significantly harm survivors of gender-based violence, who already face unique barriers to articulating a credible or reasonable fear during the expedited removal process even where their asylum case is very strong. It is common for a survivor, in an act of self-preservation and protection, to have never spoken about the abuse they suffered at all prior to having to describe it to an immigration officer. Gender-based violence often carries severe social stigmas that silence survivors due to internalized humiliation and shame. Some carry a well-justified fear of retaliation for reporting abuse, including further violence and ostracization from one’s family and community. A survivor may have never disclosed sexual abuse to their spouse with whom they are now arriving at the U.S. border for fear of being blamed for “adultery” or “seduction” or otherwise forever altering the nature of their relationship. A survivor may be arriving at the border along with the very person who abused her – her persecutor – as a “family unit.” Finally, a survivor may hesitate to disclose abuse in front of her children who are present during the interview for fear of further traumatizing them. These fears compounded by trauma, language barriers, and a lack of counsel all make it even more difficult for a survivor to tell their full story and defend against mandatory bars during the CF/RF stage.

The Tahirih Justice Center has represented many survivors who are unable to fully express their fears of return or fully explain their circumstances during the CF/RF stage. For example, when she was still just a minor, Ava* crossed into the U.S. via a river after fleeing human trafficking in her home country. While being interviewed by CBP officers she expressed her fear of return but did not feel comfortable disclosing all the details as to why. It was not until she spoke with a counselor at the shelter where she was placed that she opened up about all the abuse that prompted her to flee. This included the fact that when she was a child in seventh grade her bus driver groomed her for human trafficking. The trafficker isolated and raped her while telling her parents that they were in a loving relationship, then – through violent beatings and threats – he forced her to assist him in selling drugs.

It took the approach of a trained counselor to uncover the trafficking, and it took the trauma-informed skills of Ava’s legal team to uncover all the details of her past abuse. Had her entire eligibility hinged on that first interview – where she spoke alone after exiting the treacherous river that she crossed – she may have disclosed her involvement in her traffickers’ drug sales without the full context of the duress that she was under because of the violent physical abuse and threats and would have lost the ability to seek the protections she was entitled to under the law.

It is abundantly clear that authorizing asylum officers to consider certain mandatory bars during the CF/RF stage will have a significant impact on the ability of survivors fleeing gender-based persecution to obtain asylum. To propose this change under the guise of purported “operational flexibility” so that the government can remove asylum seekers swiftly without regard to the meritoriousness of their claims for asylum is unconscionable.

On June 12, 2024, the Tahirih Justice Center and 46 national, statewide, and local organizations dedicated to supporting survivors of gender-based violence submitted a formal comment in response to the proposed rule. The comment can be found here in its entirety.

We are grateful to Arnold & Porter and to the survivors, advocates, and the national, state, and local organizations who collaborated with us to submit this comment. We thank them for their unwavering commitment to advocating for humane and workable solutions to the asylum system and ask the Administration to commit to withdraw the proposed rule in its entirety.

*Name changed to protect the privacy of the people involved