Women fleeing gender-based violence face an uphill battle in a U.S. asylum system that has long been perceived as largely geared toward victims of state persecution and has yet to absorb the #MeToo movement's cultural shift.

While the broader movement to believe survivors of gender-based violence has had some influence on both civil and criminal legal matters, asylum-seekers must navigate a system that requires exacting documentation and a near Herculean effort by attorneys to prove the violence they suffered makes them eligible to remain in the U.S.

These women must confront a public perception that fraud is rampant among those seeking safety, doing so during an ever-shifting landscape of executive actions and legal precedent that can either permit or restrict protections for gender-based violence depending on the administration in power. And they must provide corroborating evidence while proving their credibility to asylum officers and immigration judges who may lack adequate training on how trauma can affect memory.

With such a heavy load to carry to get survivors of gender-based violence across the asylum finish line, University of California College of the Law, San Francisco law professor Lindsay Harris said the #MeToo movement hasn't significantly influenced immigration law yet.

"My sense is that we haven't really made that leap," she said. "These cases are definitely winnable. I personally never lost one, but they require a lot of work and creative lawyering and resources."

Women who can show that law enforcement officials back home could not or would not protect them have better odds at meeting the legal standards, according to new research from George Mason University professor Carol Cleaveland and assistant director of the Immigration History Research Center at the University of Minnesota Michele Waslin.

"The women I saw who were successful were cases in which it was documented that the police did nothing, or at least there was testimony that the police did nothing. ... There had to be a strong connection to really show that law enforcement was either ineffectual, or actively corrupt and unwilling to intervene," Cleaveland said.

She and Waslin reached that conclusion after interviewing more than 40 asylum-seeking women from Latin America who fled gender-based violence and observing their immigration hearings. The scholars wrote about their findings in a book released last month, "Private Violence: Latin American Women and the Struggle for Asylum."

According to Harris, deeply invested attorneys who can go the extra mile are needed to show that victims of gender-based violence fit into one of the five qualifying categories for asylum, and that law enforcement officials in their home countries were unable or unwilling to protect them.

Harris said the work includes having the women undergo psychological evaluations in relation to their trauma, which she said can affect memory and present challenges to providing the kind of detailed accounts the U.S. asylum system requires to prove credibility.

Harris said she also conducts extensive research on the social dynamics and the cultural environment in other countries. Having experts testify on such conditions can illustrate that some governments would be ineffectual in protecting the women who are fleeing, she said.

The five categories that make one eligible for asylum are race, religion, nationality, political opinion and belonging to a particular social group. These groups are often overlapping, but Harris said that getting to the heart of which one is right for a woman fleeing gender-based violence may require extensive interviews with clients, which could be retraumatizing.

"That's where a lot of the creative lawyering comes in to get to the heart of [showing where the harm lies]," she said.

All of these steps take time, dedication and resources, something women without adequate representation lack.

Women fleeing gender-based violence must also navigate a U.S. asylum system that can shift with every change in administration, with some favoring the idea that the U.S. asylum system is largely geared toward protecting victims of state-inflicted violence.

For example, in 2018 Attorney General Jeff Sessions narrowed the availability of asylum for women fleeing gender-based violence, saying in a ruling that asylum claims "pertaining to domestic violence or gang violence perpetrated by non-governmental actors" generally won't qualify.

In doing so, Sessions described the "prototypical refugee" as someone fleeing government persecution.

According to Harris, the idea of the "prototypical refugee" likely stems from the global context when the 1951 Refugee Convention was drafted. U.S. law around refugees and asylum is derived from the convention, which was largely created in response to the atrocities of Nazi Germany and the Holocaust.

The law, however, says that protections should also be afforded in situations where governments are unable to protect individuals from private actors. Sessions did recognize that, but winning an asylum claim for gender-based violence during the Trump administration often depended on the judge, a phenomenon Harris likened to "immigration roulette."

The Biden administration reversed Sessions' ruling, opening the door once again for gender-based violence asylum claims. But the standards are still high.

Currently, putting forth an asylum claim as a member of a particular social group can be tricky for women fleeing gender-based violence. Victims of female genital mutilation constitute a particular social group, and the Board of Immigration Appeals has recognized "married women in Guatemala who are unable to leave their relationship" as a particular social group.

According to a 2021 U.S. Department of Homeland Security training module, courts have recognized other domestic relationships as grounds for inclusion in a particular social group, such as instances where women are viewed as property by a significant other or family member.

Both Cleaveland and Waslin said a dire need exists to designate women as a protected class for asylum, alongside race, religion, nationality and political opinion, a development Waslin said would modernize the decades-old U.S. asylum system.

"We're not living in the Cold War anymore," she said. "There are different types of threats that are causing people to leave their countries. And I think we need to shift from a system set up to exclude people and have a fundamentally different conversation about how to protect and include people."

--Editing by Adam LoBelia.

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