As we commemorate Women’s History Month during this period of demonization of migrants, we turn our attention to the experiences of women asylum seekers and refugees, particularly the ways the U.S. treats their claims for protection based on gender-based persecution.
Modern U.S. asylum and refugee policies are shaped by the Refugee Act of 1980 which aligned US immigration laws with our obligations under international law. It recognizes as a “refugee” anyone who has been persecuted or has a “well-founded fear of persecution” on account of race, religion, nationality, political opinion, or membership in a particular social group (PSG); and, establishes clear pathways for people to seek asylum within the U.S. and refugee status abroad.
Refugees apply outside the country, and asylum seekers apply in the U.S. or at the southern border. Whereas there is no numerical limit on yearly asylum grants, each year the President and Congress set a cap on refugee admissions, divided among different world regions. For Fiscal Year 2025, President Biden set the refugee admissions ceiling at 125,000. Trump’s FY 2020 ceiling was 18,000, the lowest in history.
Fewer than 1% of refugees worldwide are referred for resettlement. Applicants for US resettlement undergo extensive vetting, more than any non-citizen applying for a benefit, including intelligence checks, FBI fingerprint databases, and medical exams. DHS US Citizen and Immigration Services (USCIS) Refugee Officers conduct in-depth interviews abroad to verify credibility and claims. Even before this step, applicants have been vetted by the UNHCR and typically have been waiting at least two years.
Under USCIS, the Asylum office receives affirmative asylum applications. which Asylum Officers adjudicate them after a non-adversarial interview, reviewing country conditions, a written decision, and thorough vetting. If the Asylum Officer grants asylum, there is no appeal; the applicant is an asylee. If not, the applicant is referred to the immigration court.
Defensive asylum claims are adjudicated in immigration court. They include cases referred from USCIS and new claims from immigrants placed in deportation proceedings, such as those who arrive at the southern border and express fear of persecution. After a prescreening interview, If they fail to demonstrate a significant possibility of success, they are deported. Immigration judges operating under the Department of Justice adjudicate these cases. While applicants can appeal to the Board of Immigration Appeals (BIA) and then to the Circuit Courts of Appeals, they do not have the right to government-appointed legal counsel.
Despite the complexity of asylum law and the often life-or-death stakes for applicants, because immigration is a civil matter, not a criminal one, indigent immigrants facing deportation are not entitled to a public defender the way that criminal defendants are. Without an attorney, asylum seekers stand little chance — only 18% of those unrepresented were granted asylum in FY 2022, compared to 49% of those with legal representation.
Gender-Based Persecution
For decades, gender-based persecution was not considered grounds for asylum. Survivors of domestic violence, rape, female genital mutilation, forced marriage, and sex trafficking were dismissed, their suffering relegated to cultural or private matters. The turning point came in 1995 when the U.S. Immigration and Naturalization Service (INS, the precursor to USCIS) issued Gender Guidelines to help adjudicators recognize the unique persecution women face. A year later, the landmark Matter of Kasinga case established that a woman fleeing genital mutilation in Togo could qualify for asylum under the PSG category. This ruling opened doors for future gender-based claims.
Yet, the issue of domestic violence remained unresolved. The case of Rodi Alvarado, a Guatemalan woman who fled severe abuse from her military husband, highlighted the gap in asylum law. After marrying a Guatemalan soldier at only 16, her military husband abused her, among other ways, by frequent forcible beatings, including one that nearly killed her, and brutal rapes. After a decade of horrific harm and many failed attempts to hide from her husband and to obtain government protection, Alvarado was left with only two choices: “flee or die.” Leaving her two young children with relatives, Alvarado fled to San Francisco in May 1995.
In 1996, a San Francisco Immigration Judge granted Alvarado asylum. On appeal, as the Matter of R-A-, the BIA refused to recognize female domestic violence victims as a particular social group and deemed it a private matter. Amid advocacy outcry, years of political interference by Attorneys General Reno, Ashcroft, and Mukasey, with different administrations either obstructing or supporting her domestic violence claim. It was not until 2009 that Alvarado was finally granted asylum, 13 years after fleeing for her life and without seeing her children.
Alvarado’s domestic violence asylum case ignited fierce debate in the US. Immigration restrictionists who warned that recognizing gender-based claims would “open the floodgates,” deluging the system with women, given gender violence’s global prevalence.
A hard-fought victory finally arrived in 2014 when the BIA ruled in another woman’s case, Matter of A-R-C-G-, that “married women in Guatemala unable to leave their relationship” constituted a valid PSG. This was the first precedential decision recognizing domestic violence as a basis for asylum. Yet, this progress was short-lived.
In 2018, Trump’s Attorney General Jeff Sessions overturned this precedent in Matter of A-B-, asserting that domestic and gang violence victims “generally” do not qualify for asylum. This rollback had devastating consequences for women fleeing brutalities. In 2021, however, Biden’s Attorney General Merrick Garland reversed this, reinstating the ruling in Matter of A-R-C-G- and protections for survivors. This ongoing legal battle highlights how US asylum policies remain subject to shifting political agendas.
During the first Trump presidency, policies disproportionately harmed women and families, including the “zero tolerance” policy. The “zero tolerance” policy, implemented in April 2017, mandated the criminal prosecution of all undocumented border crossers, leading to widespread family separations. Desperate mothers remained in detention, unaware of their children’s whereabouts, while some Border Patrol agents cruelly told children they would never see their mothers again. Many women and girls, already traumatized from violence in their home countries and harrowing journeys through Mexico, where many, if not most, experience severe sexual violence, faced further devastation upon losing their children.
By the time the policy was rescinded, approximately 5,000 children had been separated from their parents at the U.S.-Mexico border. As of December 2024, around 1,360 children remained separated, with reunification efforts ongoing but hindered by inadequate DHS records and the challenge of locating deported parents. On the first day of his second term, Trump dismantled the task force created to reunify parents and children separated under zero tolerance.
The “Remain in Mexico” policy (formally known as the “Migrant Protection Protocols,” or “MPP”), implemented in 2019, forced asylum seekers to wait in perilous Mexican border towns while their U.S. cases proceeded. Women trapped under MPP faced horrifying abuses — kidnappings, sexual assault, and trafficking at the hands of Mexican cartels and officials, and the Texas National Guard. Human rights organizations have documented over 2,500 cases of violent attacks against those returned to Mexico. Biden ended MPP in 2021, but instituted rules that effectively banned asylum at the southern border in 2023 and 2024.
In his second term, as in his first, President Trump has taken aggressive steps to restrict asylum, calling it a “hoax” rather than a legal right. His Executive Order, “Guaranteeing the States Protection Against Invasion,” effectively bars asylum for women and children “invading” the southern border, exposing them to extreme danger. Meanwhile, his order “Realigning the U.S. Refugee Admissions Program” has halted refugee admissions entirely, leaving 22,000 ready-to-travel refugees stranded in life-threatening conditions and another 220,000 in processing limbo. The impact on Afghan women is especially dire—many are facing deportation from Pakistan while awaiting relocation to the U.S.
Despite a federal judge overturning the refugee suspension on February 25, the administration has yet to comply, effectively freezing the entire program, including funding for resettlement agencies in the US. Among many additional orders, Trump has reinstated MPP, cancelled asylum appointments for 30,000 applicants waiting in Mexico, and revoked Temporary Protective Status (TPS) status for Cubans, Haitians, Nicaraguans, and Venezuelans, rendering many Ukrainian and Afghan recipients of humanitarian parole and these TPS recipients undocumented.
Regarding domestic violence claims, Matter of A-R-C-G- is still good law, although Trump’s team in Project 2025 called for reinstating the Trump-era precedent Matter of A B , which had sharply limited asylum eligibility for survivors of domestic abuse. While the administration can issue regulations to interpret asylum laws restrictively, it cannot change the law itself without Congressional approval. Therefore, any attempt to categorically deny asylum claims based on domestic violence again would likely face legal challenges.
Women refugees and asylees have overcome significant challenges and made important contributions to the US in advocating for human rights, education, and policy reforms. In a time when there is an all-out assault on migrants, it is critical to advocate for the rights of women fleeing violence, oppression, and discrimination. Ensuring that gender-based persecution is firmly recognized within asylum law and that policies remain grounded in humanitarian principles, rather than anti-immigrant right-wing ideologies, is essential to upholding the rights and dignity of women seeking refuge in the U.S.
