On February 23, the Department of Homeland Security formally issued a proposed rule that would make most people seeking safety at the southern U.S. land border ineligible for asylum. If a survivor of gender-based or other violence does not apply for protection in a country they passed through on their way to the U.S. southern border, and crosses the southern border between ports of entry, they will be presumed ineligible for asylum, with very limited exceptions.
How will this rule impact access to asylum?
Full implementation of this rule will prevent countless survivors of violence from accessing the asylum system. Those who enter the U.S. without inspection after failing to seek protection in a transited country will almost certainly be ineligible for asylum and quickly deported to face further harm—despite U.S. and international laws that assure asylum access for survivors regardless of how or where they enter the country.
The rule carves out exceptions for unaccompanied children and people who have been pre-approved to seek parole. Another narrow exception applies to those who can prove that, at the time of entry, they (or a member of their family with whom they were traveling) faced an acute medical emergency or an imminent and extreme threat to life or safety, or they qualified as a survivor of a severe form of human trafficking.
But these exceptions are not nearly sufficient to provide survivors with meaningful access to asylum. Instead, the practical effect of the rule will be to shut our doors to the most vulnerable. It requires people to apply for asylum in countries that have no functioning asylum system or ability or willingness to protect them from harm. And it subjects them to illegal metering by requiring them to apply for an appointment via flawed, inequitable technology. Those who remain unsafe in Mexico or other transited countries will be the very people who must wait indefinitely in dangerous conditions at the border just to preserve their chance at asylum in the United States.
What is at stake?
Policies that, like this asylum ban, aim to stop migrants from coming into the U.S. rarely succeed at deterring migration and do not protect immigrant survivors of gender-based violence. Instead, they put people seeking safety at increased risk of further harm. And they violate our moral and legal responsibility to provide access to asylum to those who fear persecution in other countries.
Our recent report, Surviving Deterrence, found that policies like the asylum ban greatly exacerbate the risk and prevalence of gender-based violence at the border, re-victimizing and re-traumatizing the most vulnerable groups of people, including women, girls, and LGBTQIA+ individuals already fleeing for their lives. Sixty-eight percent of the service providers we surveyed indicated that their clients have been raped and/or sexually assaulted frequently at the border.
Although there is a narrow exception in the proposed rule language for “an imminent threat of rape,” the proposed rule requires migrants to prove “by a preponderance of the evidence” that an immediate, specific threat of rape existed at the time they crossed the border. It is extremely unclear what would be considered sufficient evidence to meet this requirement. And without a lawyer, a survivor of gender-based violence is highly unlikely to be able to articulate their need for asylum on the spot in a way that is acceptable to CBP due to both acute and/or prolonged trauma.
The previous Administration issued a similar ban that was repeatedly struck down by the courts as unlawful. While the current Administration claims its asylum ban is different, the effect of this proposed rule will be the same – preventing vulnerable people from exercising their legal right to seek protection in the U.S. and putting them at risk of further harm.