July 1, 2020

Stopping the Trump administration from stopping gender-based asylum claims

[Cross-posted from ImmigrationProf Blog]

By Brian Soucek

The comment period is now halfway done for the Trump Administration’s new Proposed Rule Dismantling the Asylum System (not its official title). As I said in a comment submitted on June 29, the “the Proposed Rule is misguided and legally infirm in almost too many ways to count,” but I decided to focus just on one thing: its attempt to end gender-based asylum claims.

The Rule proposes a change to the nexus standard: the part of refugee law that says what it means for persecution to be “on account of” one of the five protected grounds—race, religion, nationality, membership in a particular social group, or political opinion. The Rule would add regulatory language, under the heading “Nexus,” saying that the Departments of Justice and Homeland Security, “in general, will not favorably adjudicate the claims of aliens who claim persecution based on … gender.”

There are at least six things wrong with this. The full comment spends 12 pages detailing them, but here’s a summary:

1.   The Rule confuses nexus analysis, which is about the reasons behind persecution, with membership in a particular social group, which requires adjudicators to determine whether particular groups (like women in a given country) should be recognized for asylum purposes. A general nexus bar would require evidence that women, for example, are not generally persecuted because of their gender. The Rule makes no such showing.

2.   The Rule doesn’t understand why courts require case-by-case judgments about what groups to recognize. In the olden days, when groups were judged based only on the immutability of their shared traits, categorical answers could be given about whether, say, “homosexuals in Cuba” should be recognized. Not anymore. The new test, which requires “social distinction” and “particularity” in addition to “immutability,” is now inherently fact-bound, and results can vary by time and place. The Departments don’t seem to recognize this important change, brought about by their own case law.

3.   Amazingly, the Rule offers one single citation for its sweeping exclusion of gender-based claims: a Tenth Circuit opinion from 2005, which has language suggesting that gender-based social groups might be too big to qualify for asylum. But—get this—the one case cited ultimately reaches the exact opposite conclusion! Using a citation this misleadingly in court would clearly be sanctionable. Here it just leaves the proposed gender bar utterly devoid of support.

4.   The Rule isn’t just wrong about the Tenth Circuit, it’s wrong on the merits: size doesn’t matter to whether a particular social group (like women) qualifies for asylum. Allowing gender-based claims is no more of a slippery slope than allowing claims based on race and national origin, which the statute requires. Since the five grounds are supposed to be interpreted in tandem, it would be unreasonable to impose a size limit on social groups that isn’t imposed on, say, religious, political, or racial groups.

5.   The bar on gender-based claims is clearly an attempt to thwart claims by women who have been abused by their partners, and to do so even more effectively, the Rule adds a new bar on “evidence promoting cultural stereotypes about an individual or a country.” But the bar only applies to evidence from asylum seekers, not the government! The Rule offers one example of stereotyping: evidence suggesting that “Guatemala has a culture of machismo and family violence.” It’s hard to know how applicants can show evidence of widespread and systemic harms in a country—the kind of pattern-or-practice evidence that even this Rule still allows—without having it rejected for promoting stereotypes. Regardless, the one-sided application of this evidentiary bar likely violates the Due Process Clause.

6.   Finally, the Proposed Rule was published on the same day as the Supreme Court’s historic LGBTQ-rights decision in Bostock v. Clayton County. Bostock makes clear that discrimination based on sexual orientation or gender identity is necessarily discrimination based on sex. That’s great news for LGBTQ employees, but bad news for LGBTQ refugees, at least if this Rule goes into effect. For substitute “persecution” for “discrimination,” and under the logic of Bostock, a general bar on gender-based persecution claims must generally also exclude claims from people persecuted for their sexual orientation or gender identity—despite the fact that U.S. asylum law has recognized LGBTQ claims for decades. The Trump Administration hasn’t acknowledged this implication of its Rule, much less made any attempt to justify such a dramatic change to asylum law.

There are overwhelming humanitarian and political reasons for not ending our protection of refugees who flee gender violence. But there are also at least six legal reasons why the Trump Administration’s attempt to exclude these refugees should be doomed to fail. For more on any of these reasons, you can read my full comment here. And there are still two weeks left to submit your own comment on the Rule here!