Rape Survivors Seeking Asylum Have to Prove the Rape Happened or Be Deported

We often talk ruefully about how the U.S. judicial system will “put the victim on trial" in sexual assault cases. But when it comes to people applying for asylum in the U.S., that's literally what happens.
lustration of two guards looking at a woman through a chain link fence
Illustration by Hunter French

Linda* doesn’t know why she first agreed to move in with the man who would turn most of her teens and early twenties into a hell. “I wish I knew why I made the decision to go with him or could change it,” she said in a written statement, submitted as part of her application for asylum in the United States.

She was only 14 when the man who would become her partner began stalking her at a festival in her small Guatemalan village, and only 16 when he finally convinced her to move in with him. When she had his son, she was 17. “I did not have any experience with relationships; I was so young,” Linda stated, “Now I understand that when you are in a relationship, you should talk about your plans and what you would like, for example, how many kids you will have, or how you will live and will you build a house?”


After Linda had their first son, they didn’t have a proper home or enough money to live on, and her partner refused to save. She began to refuse sex because she didn’t think they could afford another child—that’s when he began to rape and beat her, more times than she could count. “After all of the beatings and blows to my head, I started to see stars and my vision would be blurry and I got very dizzy. One side of my body would fall asleep. Sometimes I would have to hold onto the wall to steady myself so I wouldn’t fall down,” she stated. The numbness on the left side of her body persisted long after the assaults.

Linda finally fled to the U.S. with her son when she was 22. Their harrowing journey took months. At one point they were separated from the group they were traveling with, and Linda and her son got lost in the Mexican desert. There she saw the bones of those who had failed to complete the same journey she’d undertaken. When she finally made it to the U.S. border, she claimed asylum, and the Center for Gender and Refugee Studies (CGRS) took and litigated her case in 2016. Her terrifying story alone wasn’t enough to compel the government to grant her asylum; she needed lawyers, mental health professionals, and experts on the conditions in Guatemala to prove her case.

We often talk ruefully about how the U.S. judicial system will “put the victim on trial" in sexual assault cases—about how someone who has experienced abuse shouldn’t have to bear the burden of proof, or be questioned about their role in the crime, and yet they often are. But when it comes to the asylum system in the U.S., that's literally what happens: Asylum seekers fleeing sexual violence must be able to convince a judge that what they went through actually happened, while at risk of being deported back to the place where they were persecuted. But because their trial is happening outside their home country, they are often unable to gather evidence to support their claim—so their entire fate hinges on how believable their testimony is.


Asylum seekers have to rely on experts to help them prove their case

Reena Kapoor, a forensic psychiatrist at Yale University, frequently performs evaluations for asylum seekers. She said forensic training can be vital for these cases, because it allows psychiatrists to understand how immigration officials think. “We're mindful of how carefully judges or asylum officers are going to pick apart a person’s story,” she said. Forensic psychiatrists can also help explain why asylum seekers who have experienced trauma might seem like inconsistent storytellers. “From a psychiatric perspective, [there] are there reasons why a person's memory may have been different at different times for the event,” she said.

Symptoms associated with trauma can make someone seem like an unreliable narrator, said Megan Berthold, a former forensic psychological evaluator at the Program for Torture Victims in Los Angeles. For example, many survivors dissociate—or become detached from their surroundings—when experiencing or remembering trauma. “Individual experiences vary, but the person may have dissociated at the time of the sexual trauma, particularly if it was one that

was repeated or extended over a long period of time,” Bertold said. She added that, if an asylum seeker dissociated during her assaults, she might not remember them well, and she might also have to dissociate in order to recount them and thus appear emotionless before a judge.


Evaluations that explain these types of symptoms can be make or break, according to Jean Reisz, an attorney who co-directs the immigration clinic at the University of Southern California’s law school, said Asylum seekers must tell a version of their story to immigration authorities at various times during the asylum process, and “if they're inconsistent, that is a reason to deny asylum application.” But, Reisz said, asylum seekers’ stories might be inconsistent for reasons even beyond the ways that trauma can affect memory. For example, a woman fleeing sexual violence might not feel comfortable or safe disclosing those experiences to male interviewers. “Psychologists really help kind of explain any perceived inconsistencies,” she said, which can then affect whether judges see asylum seekers as credible.

In the United States, asylum seekers literally carry the “burden of proof” when it comes to showing that they are in danger of persecution if they return to their home countries. Not only that, but they have to prove that they're in danger for one of a particular set of reasons: a political opinion, nationality, religion, race, or membership in a particular social group. According to Diana Blank, an attorney at the New Haven Legal Assistance Association and lecturer at Yale Law School, the “particular social group” category is the most malleable. In 2014, the U.S. Board of Immigration Appeals found that women unable to leave domestic violence in Guatemala qualified as members of a particular social group. The decision opened the door for asylum-seekers from other countries to make similar arguments.


In order to prove that she was one such woman, Linda had to relive her trauma by telling her story in detail. She sought a diagnosis from a forensic psychologist, who determined she had post-traumatic stress disorder (PTSD). The psychologist wrote in a sworn statement that Linda's symptoms were consistent with the story she told of sexual, physical, and emotional trauma. The psychologist also affirmed that “There was nothing about behavior or reports to suggest she was feigning or exaggerating symptoms at the time of this evaluation." In addition to having an attorney represent Linda, CGRS brought in a Guatemalan attorney to testify about the high levels of violence against women there and compiled documents from Amnesty International, the U.N. Human Rights Council, and a variety of other organizations to further illustrate conditions for women like Linda.

This level of expertise and more is often required to win an asylum claim, according to Muzaffar Chishti, director of the Migration Policy Institute’s New York office. Legal teams for asylum seekers call on doctors, mental health professionals (including forensic psychiatrists and psychologists), anthropologists, journalists, historians, and other experts to bolster their clients’ cases. All “for the simple reason that if the government disputes what you say, they will have to dispute the expert. On what basis are they going to say the expert doesn't know what he or she is talking about?” Chishiti said. It can be hard for asylum seekers, who are often fleeing their countries with very little, to keep records of evidence for their cases. So experts can help them “shift the balance of the evidence in their favor.”


Forensic psychiatrists receive special training in order to interact with legal systems. In many cases, they're responsible for explaining how mental health conditions could have influenced the behavior of people charged with crimes. But when they’re evaluating asylum seekers, forensic psychiatrists are often looking to see if mental health symptoms line up with their story.

Legal teams like Linda’s work hard to create the strongest case possible, but not all asylum seekers are able to get this kind of representation. Unlike people charged in U.S. criminal courts, asylum seekers don't have the right to legal representation—and only 37 percent end up getting representation, according to a 2016 analysis of Department of Justice data by the American Immigration Council. Asylum seekers with legal representation are twice as likely to be successful than those without legal representation. Linda was one of the lucky ones.

Seeking asylum under Trump is harder than ever

A number of policy changes under the Trump administration have made it even more difficult to seek asylum, especially for women like Linda who are fleeing sexual assault and domestic violence in Central America—and policies that have yet to take affect will add to their struggle.

A new rule, upheld by the Supreme Court in September, says that if asylum seekers cross through another country (like Mexico) before reaching the U.S., they must prove they’ve been denied asylum in those countries before they can apply for asylum here. Chishti said for a Guatemalan woman like Linda coming to the U.S. through Mexico, “Unless [she shows] an officer a denial, [she] just will be sent back to Guatemala.” But, Chishti said, Mexico’s asylum system isn't as robust as the U.S.’s, and the protection that Mexico can offer refugees who don't return to their home country could be limited. This rule is expected to take effect in the coming months. This rule will make even getting a meeting with an asylum officer more difficult.


The Trump administration has also created new standards for what immigration authorities must look for during “credible fear” interviews with asylum seekers—this interview is the first threshold immigrants must pass in order to continue the process. The credible fear interview has long been a relatively low bar; asylum seekers must simply establish that their fear of danger if they return to their home country is plausible.

But in May, Reuters obtained new guidance on how immigration officials should conduct these interviews, and the training document deleted previous advice that interviewers consider that people seeking asylum might not have all the evidence to make their case when they first arrive in the U.S., as well as advice to consider people's trauma and cultural background when assessing their credibility. And, according to Buzzfeed News, certain asylum seekers along the Texas border now have those interviews within 48 hours of their arrival.

“Anecdotally, what we're seeing is, the credible fear interviews are not as thorough as they should be because of these kinds of higher standards," Reisz said. "A woman from a village in Guatemala is not going to know what the law is around how to establish membership in a particular social group [per the 2014 ruling]. And the asylum officer is not developing that testimony thorough enough to allow her to be able to establish that.”

In June 2018, Attorney General Jeff Sessions made a unilateral change intended to exclude women like Linda specifically from seeking asylum. He overturned the 2014 ruling which said that “married women in Guatemala who are unable to leave their relationship” qualified as members of a particular social group and thus eligible for asylum. “AB,” the woman to whom Sessions personally denied asylum, had fled an abuser in El Salvador who tracked her down every time she tried to run away. He had raped her repeatedly; one of her three children was a product of rape. When she asked for a restraining order against him, the police ordered her to deliver it herself; he tore it up in her face.


Blank said immigration lawyers must now use different arguments to support the claims of women fleeing domestic and sexual violence. “We've had to establish a political opinion claim showing that, for instance, this woman would be beaten, sexually assaulted, and all kinds of horrors would be inflicted on her by her husband or her partner. And in the face of that she would declare, over and over 'you can't treat me like this, just because I'm a woman, I have some dignity,'” said Blank, “So is that a political opinion claim?” She said that in different cases, sometimes the judge will say it is, sometimes he’ll say it isn’t. In Connecticut, where she works, all the immigration judges are men.

Taken together, these policies and structures amount to additional hurdles for rape survivors, for whom the asylum system can be exceptionally difficult. Kapoor said asylum seekers who are survivors of rape face similar skepticism as rape survivors in the U.S. who have come forward in the criminal justice system.

She compared what she’s seen in the immigrant court system to the recent Netflix series Unbelievable, based on the true story of a teenager who was charged with filing a false police report after coming forward about her rape. In the end, it turned out the man who raped her had also raped several other women. “It reminds me very much of the way that the court looks at asylum seekers,” Kapoor said, “Particularly in that context of having experienced sexual trauma or other kinds of trauma, the skepticism that comes with that.”


Blank said the asylum-seeking process can also be retraumatizing in many ways; women must recount their sexual trauma over and over to different people, including to their lawyers in preparation for their court date. Many of them complain of mental distress or poor sleep during this process, Blank said. She’s also had to convince asylum seekers to undergo invasive medical examinations so doctors can report that vaginal scarring is consistent with their reports of repeated rape. “That’s a very hard thing to push on a client,” Blank said, adding that she often must explain to her client that this kind of scrutiny is for the sake of their ultimate safety.

Even waiting for a court date is becoming more harrowing for many asylum seekers. Under the Trump administration, asylum seekers are less likely to get “humanitarian parole” from immigration detention, meaning they're often detained by Immigration and Customs Enforcement (ICE) for the entirety of the asylum-seeking process, which could last months or years. The detention system can be traumatizing in itself, and according to Reisz, more immigrants are simply choosing to give up and be deported rather than appeal negative asylum decisions and stay in detention while they wait for the appeal hearing.

One of Reisz’s client at the USC immigration clinic—a trans woman from Mexico fleeing rape—decided not to appeal and stay detained, but chose instead to be deported after her asylum claim was denied. “Within I want to say 48 hours of her being in Mexico, she was raped again, and went back to the border to again seek asylum,” said Reisz. The second time she was successful in her asylum application.

Despite the possibility of this type of consequence, according to the U.S. immigration law, deportation is not a punishment, which is why asylum seekers must prove their cases to such a high standard.

“It’s just absolutely maddening,” Blank said, “it would be much easier to have a kind of 'until proven otherwise,'” which would at least put asylum seekers on the same level as people charged with crimes, who are considered by law to be innocent until proven guilty.

*Details from “Linda’s” story come from a redacted case file provided by CGRS. Her real name is unknown.

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