Survivors Will Suffer Under Asylum Rule

Survivors Will Suffer Under Asylum Rule

Protections for trafficking survivors are being steadily eroded. 

From cuts in funding to clandestine attacks on immigration rights for survivors, the current administration has celebrated their anti-human trafficking work in front of cameras while undercutting the very foundation of protections for survivors.

This administration is actively harming survivors, yet again, with the most recent attack on the institution of asylum in this country. 

Asylum allows individuals to flee their countries and seek refuge in the United States because of persecution.

The proposed rule changes to asylum will make it nearly impossible for people fleeing persecution to gain refuge in the U.S. 

We can go on about how this rule harms and could cause the death of women, children and people who are LGBTQ+ but we will focus our energy on the affects it will have on trafficking survivors for this piece.


Gender Violence Deemed Invalid Basis

Under the proposed rule, gender-based violence is explicitly ruled out as a basis for establishing a person’s persecution in an effort to obtain asylum. 

As we know, women are disproportionately trafficked, especially when we look at sex trafficking.

Having gender-based violence prohibited as a type of persecution reduces a trafficking survivor’s ability to obtain asylum.

To further frustrate efforts, the rule also excludes interpersonal violence (which also removes survivors of intimate partner violence, sexual assault, forced marriage) which is the basis of abuse for most trafficking survivors.

Under this prohibition, the home country’s climate and views toward women and people who are LGBTQ+ are not taken into account, either. 

For instance, if the home country’s culture actively harms women and LGBTQ+ people, it will no longer be a basis for successfully seeking asylum should this rule go through as proposed.

That means exploitation in sex and labor run rampant and unchecked because of cultural norms in the home country, but will not be considered a basis for asylum in the US. 

This rule will harm survivors of trafficking who were exploited simply because it is a culturally accepted abuse, but also survivors of honor crimes, forced marriage, and people who are punished in a country’s society for being a woman or LGBTQ+.

That kind of punishment typically consists of beatings, intimate partner violence, rape, femicide, murder of people who are LGBTQ+, etc., etc., etc.


What happens when everything can be deemed frivolous

The proposed changes make it easier for an immigration judge to deem a claim frivolous.

Currently, frivolous claims are claims that go out of their way to be deceptive.

Under the proposed rule, frivolous is a whole new beast.

For instance, under this rule, something will be deemed frivolous if it includes any non-factual element – even if it wasn’t deliberate. 

To understand how this could impact trafficking victims, we must acknowledge the nature of trauma.

Trafficking survivors have endured incredible trauma and because of that trauma, their brains have difficulty processing memories.

Memories are often inconsistent and include gaps. 

If they recount their experiences, and the survivor describes anything that is deemed fabricated, then their case will be considered frivolous and there is no other immigration relief available for them.

Also, a case can be deemed frivolous if any application is filed without regard to the merits of the claim.

Unfortunately, “without regard to the merits of the claim” is not defined.

When the rule doesn’t explicitly outline what that means (and if even attorneys don’t know what it means), those claims can be deemed frivolous based on the whims of an immigration judge.

The rule change increases the likelihood that nearly every case has the capability to be deemed frivolous.

This broad approach to what “frivolous” can be is absurd, and the implications for trafficking survivors are life altering and life threatening.

If a case is deemed “frivolous,” that asylum seeker cannot get any type of immigration relief, including a T-visa.

T-visas are afforded to trafficking survivors under the Trafficking Victims Protection Act and that visa is the cornerstone of protection for trafficking survivors who are immigrants in the United States.

The T-visa allows them to remain in the U.S. while the case is adjudicated and allows them to receive a work permit, so they can have a stable income.

Under this new rule, that possibility would be snatched away from them. 

And while it seems like common sense that if a case is frivolous, then it should not be considered as a basis for asylum, this proposal changes the nature of the term “frivolous” under the law. 

These proposed changes give too much latitude to individual judges and not enough guidance on what should be truly considered “frivolous.”

If this becomes policy, it becomes much easier for the United States not to fulfill its duty to protect victims of trafficking.

Bars to Asylum

Another impediment to being granted asylum under these proposed rules is that people who committed a crime would not be eligible.

On its surface, that makes sense. Of course, we don’t want to grant asylum to criminals.

But when we look deeper, this is a clear attack on trafficking survivors.

That means if a woman was forced into commercial sex – prostitution is a crime, by the way – then they would not be eligible for asylum. 

If a trafficker forced someone to smuggle drugs for them, that survivor is then ineligible for asylum under this new proposed rule.

If they even filed for asylum it would be deemed as frivolous, likely, and they would then be ineligible to apply for the T-visa, which is their right.

The knowledge that trafficking survivors are typically compelled to perform illegal acts while under the control of a trafficker is well known and even codified in many state laws, including North Carolina, which allow for the expunging of criminal records of victims.

Yet the bar for relief for asylum is so abjectly high and unreasonable in this proposed rule, that basic rights for human trafficking victims would not be available in our immigration laws. 


Asylum is under attack

Call to Action:

These are just a few instances of assault on trafficking survivors’ rights in the U.S. under this proposed rule. And let’s be clear, this rule proposal is an assault on human rights.

Submit your comments

It is not too late, however.

The government is obligated to read every unique comment submitted on rule changes.

Today, we are asking you to submit a comment opposing this proposed rule. You can pull some of the points highlighted here, or you can look at other resources available through the Tahirih Justice Center, the Alliance for Immigrant Survivors, Immigrant Women Too, Interfaith Immigration , and Immigration Equality to learn more about how many egregious attacks this rule contains – and there are many.

Hopefully, the more comments that are submitted, the more likely this rule will be changed or scrapped all together. 


Share with everyone   

Make sure people know that this rule change is out there. Make sure everyone knows. The more comments that are submitted in opposition of this appalling proposal, the more voices that are heard, the more likely this rule will not go into effect. 

The Tahirih Justice Center has an entire social media toolkit available for you to use.


Melinda Sampson is the community outreach coordinator of NC Stop Human Trafficking. You can contact her at melinda@ncstophumantrafficking.org


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