ATEST Opposes Proposed Asylum Rule


Lauren Alder Reid, Assistant Director

Office of Policy

Executive Office for Immigration Review

RE:     Comments in Response to the United States Department of Homeland Security (DHS) United States Citizenship and Immigration Services (USCIS) and Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) (the Departments) Joint Notice of Proposed Rulemaking (NPRM or “proposed rule”): Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review; RIN 1615-AC42 / 1125-AA94 / EOIR Docket No. 18-0002/ A.G. Order No. 4714-2020

Dear Assistant Director Reid:

The Alliance to End Slavery and Trafficking (ATEST) is submitting the following comments to DHS/USCIS and DOJ/ EOIR in response and opposition to the above-referenced NPRM issued by the Departments on June 15, 2020. ATEST strongly opposes the proposed rule because it arbitrarily eliminates asylum protections for the majority of individuals fleeing persecution including highly vulnerable survivors of human trafficking and other gender-based violence (GBV). Additionally, decreased protections for individuals fleeing gender-based violence, a particularly vulnerable population to human trafficking, will lead to increased cases of human trafficking in the United States as opposed to the prior asylum regulations which created a better framework of protection.

Since 2007, ATEST has advocated for lasting solutions to prevent all forms of human trafficking hold perpetrators accountable, ensure justice for victims and empower survivors with tools for recovery. ATEST is a U.S. based coalition that advocates for solutions to prevent and end all forms of human trafficking and modern slavery around the world. Our membership includes twelve of the leading organizations in the fight to end human trafficking in the U.S. and around the world. The collective experience of ATEST members in providing direct survivor services, contributing guidance for comprehensive counter-human trafficking laws, training law enforcement and assisting trafficking victims in the immigration system uniquely qualifies us to comment on the effects of the proposed procedures on human trafficking victims. Our membership provides services for human trafficking cases within the immigration system, including assistance with applications for T-visa and Asylum claims for clients escaping trafficking from many regions of the world. They have seen first hand how delays in the application processes and changes to application criteria have been detrimental to survivors and even placed them in dangerous situations.

Our members’ daily hands-on involvement in immigration issues gives ATEST critical information about the real-life experiences of trafficking victims, including the need for increased protections against and methods of prevention from trafficking in our asylum proceedings. Our members’ experiences with the asylum and T-visa process have shown that securing legislated relief is both arduous and time-consuming, with the associated procedural hurdles causing many trafficking victims to forego this essential form of relief and remaining undocumented and therefore remaining vulnerable to exploitation and re-trafficking, ATEST hopes that DHS will reconsider its proposed new procedures and instead work to protect greater numbers of refugees fleeing to the United States and seeking asylum, which will, in turn, best prevent human trafficking.

As a procedural matter, the comprehensive, sweeping NPRM contains technical and complex regulatory changes spanning 63 pages. The stakes are tremendously high for asylum seekers whose lives and safety hang in the balance. Yet, the public has been given a mere 30 days to respond. At a minimum, under normal circumstances, 60 days are needed for the public to engage in meaningful review and analysis of such a comprehensive and nuanced rule per the Administrative Procedure Act. However, the public is at an even greater disadvantage now due to the COVID-19 global pandemic. For example, ATEST member, CAST, is documenting a 270% increase in requests for case management programs and legal services since March and its emergency shelter is serving 50% more survivors through added hotel rooms given the increasing needs of survivors due to the pandemic. Polaris, administrator of the U.S. National Human Trafficking Hotline, reported a 40% increase in reported crisis trafficking situations since the beginning of shelter-in-place orders.[i] ATEST members’ are overwhelmed by their necessary on the ground responses to COVID-19 as “essential services” in cities across the U.S., yet DHS is asking us to respond to these life-altering changes for clients seeking asylum during this same period.

Currently, there is no urgency for the passage of a rule restricting asylum when our borders are now closed to asylum seekers indefinitely. For this reason alone, ATEST asks the Departments to promptly withdraw the NPRM as a matter of fairness to stakeholders like ATEST. In the alternative, ATEST asks the Departments to notify the public that the comment period will be extended for an additional 30 days. If the comment period is not extended, we note that our comments below do not and cannot adequately represent the extent of our intended input and analysis and should not be construed as such.

For substantive reasons including but not limited to the following, the Departments should rescind the NPRM and instead implement policies that provide meaningful access to protection for refugees and asylum seekers in compliance with domestic U.S. asylum laws and our obligations under the 1951 United Nations Convention Relating to the Status of Refugees (the Convention). 

  1.     Introduction

As described above ATEST’s membership includes one of the largest service providers for trafficking victims in the United States and national-level programs essential to identifying and assisting survivors. Further, ATEST members have been active in training law enforcement partners, and social and legal service providers across the country on the dynamics of human trafficking that include human trafficking for forced criminality. The forced criminality that many sex and labor trafficking survivors are forced to engage in under our federal and state laws constitute the labor or service that is the crime of human trafficking. See UNITED STATES DEPARTMENT OF STATE, Office to Monitor and Combat Trafficking in Persons, THE USE OF FORCED CRIMINALITY: VICTIMS HIDDEN BEHIND THE CRIME (June 2014). Available at (U.S. Government Stating: It is important that governments develop and implement policies to identify trafficking victims who are forced to participate in criminal activity in the course of their victimization, and provide them with appropriate protective services. (Emphasis added)).[ii]

However, in ATEST’s experience, too often trafficking victims of forced criminality, instead of being recognized as victims, are prosecuted as criminals instead of receiving the protection of the U.S. Government through immigration-related services and/or criminal prosecution. This common occurrence for trafficking victims has also been regularly documented.[iii] Forced criminality involves victims who are often children, or other vulnerable migrants, forced to commit a range of crimes. In ATEST’s experience, these include forced theft or stealing, benefits fraud, check fraud, counterfeit DVD selling, forced drug transport, sales, or cultivation, pick-pocketing, forced begging, forced sham marriages, forced smuggling of other migrants and forced monitoring or posting of other victims for commercial sex. Victims are often subject to multiple types of criminal exploitation at the same time.

The fact that trafficking victims are often arrested for crimes or not seen as victims in need of protections in the immigration or criminal context creates a cycle of violence in the United States and abroad that allows human traffickers to act with impunity and escape prosecution under the law. It compounds existing fears that victims may have of the authorities and reduces the likelihood that they will assist in further investigations or access support and help.

ATEST opposes the proposed rule because it would expressly exclude from asylum eligibility those who suffer persecution on account of “resistance to or recruitment or coercion by guerilla, criminal, gang….” By definition recruitment and coercion of an individual into labor or sexual services meets the criminal definition of a human trafficking victim. The Trafficking Victims Protection Act of 2000 and its subsequent reauthorizations define human trafficking as:

  1. a) Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or


  1. b) The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. (22 U.S.C. § 7102(9)). [iv]

22 U.S. Code § 7102 (3) further defines Coercion to include: The term “coercion” means— (A) threats of serious harm to or physical restraint against any person; (B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or (C) the abuse or threatened abuse of the legal process.

For these reasons, the language proposed in the asylum rules directly contradict ATEST’s as well as our law enforcement’s efforts to identify and support all survivors of human trafficking—as by definition the rules exclude survivors recruited and/or forced to commit crimes by their traffickers from applying for relief.

ATEST further opposes the rule because it expressly excludes from asylum eligibility those who suffer persecution on account of “gender” such as female genital mutilation/cutting (FGM/C), “honor” crimes, forced marriage, rape, domestic violence, femicide, and human trafficking.  Denying asylum to survivors of GBV unfairly discriminates against them and unduly minimizes the atrocities they experience. Additionally, in ATEST’s experience, denying protections to this vulnerable group will increase the risk of recruitment into human trafficking. Survivors already face tremendous challenges in accessing safety. Particularly now, due to COVID individuals are at an increased risk of recruitment to trafficking given the high unemployment rates and increasing financial instability and well-documented evidence that trafficking increases during crises.[v]

It is with this framework and concerns in mind that we submit the additional more detailed comments below.

  1.     The Vast Majority of Survivors of Forced Criminality and GBV Will Never be Able to Present their Claims in Court: 8 CFR § 208.20; 8 CFR § 1208.20
  2.     More Survivors Will Now be Subject to Expedited Removal Proceedings

Expedited removal is now being expanded beyond the border, so that more and more asylum seekers are at risk of swift deportation. Upon apprehension, they must immediately request asylum and then pass an initial screening. The expansion of expedited removal proceedings after immigration raids prevents human trafficking survivors from meeting early U and T visa application criteria before removal from the U.S. Individuals who can prove presence in the U.S. for the past two years are not subject to expedited removal proceedings, however, establishing presence is particularly difficult for those continuing to experience GBV, including human trafficking in the United States (U.S.). Human traffickers and perpetrators of domestic violence notoriously withhold or confiscate survivors’ identity or other official documents to control them and keep them dependent. Abusers also prevent survivors from holding bank accounts, utility bills, bus passes, or even library cards, in their own name, that could help establish length of presence. Indeed in recognition of the fact that trafficking survivors often do not have access to this form of evidence, regulations around applications for T-visas do not require any such information and also do not even require identification documents.

The few survivors who do pass their initial screening interviews will then be put into “asylum/withholding only” proceedings. This will arbitrarily preclude those who fear an abuser in the U.S. from applying for VAWA Cancellation of Removal. Additionally, the normal processing time for T-visas is now over two years and to file applications for T-visas even by experienced practitioners can take 6 months or more given the extent of the trauma that clients have gone through and the difficulties in obtaining the lengthy declaration a petitioner must submit as evidence of the trafficking. Therefore, ATEST is concerned that requests for stays of proceedings to allow more time for adjudication of pending VAWA self-petitions or T or U visa petitions will likely fail.

  1.     In Expedited Removal Proceedings, Asylum Seekers will Rarely, If Ever, Pass their Initial Screenings Under Various Provisions of the Rule

8 CFR § 208.30 and 8 CFR § 1208.30 unlawfully heighten the statutory standards for establishing a credible/reasonable fear of persecution, respectively, for asylum and withholding of removal/relief under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). Survivors arriving at the border are ill-equipped to effectively communicate with immigration officials due to profound traumatization, hunger, exhaustion, lack of understanding of our legal process, and language and cultural barriers. They may have been separated from family and still be suffering acute physical effects of violence in addition to emotional trauma. With no time to collect their thoughts, let alone corroborative evidence to support highly fact-specific inquiries, it is highly inappropriate to expect them to meet restrictive standards of proof. Additionally, trafficking survivors can be fleeing trafficking in their own country, trafficked in route or trafficked at the border and these complex stories of abuse and traumatization are unlikely to be uncovered in this type of process. Further, most trafficking victims often do not realize their victimization and may feel complicit in their own trafficking and abuse as is often seen with victims of forced criminality who have been recruited by traffickers into gangs or forced criminal activity as discussed above. It is highly unlikely that these facts would be disclosed in the initial screening process.

In addition, per 8 CFR § 1208.30(g)(2), there is no review in immigration court of denials of fear screenings unless the applicant proactively requests such review. Due to pervasive social stigmas and accompanying fear of reporting GBV, especially to government officials, it is highly unlikely that survivors will 1) disclose key, required elements of their claims; 2) have sufficient objective evidence corroborating such claims; and 3) affirmatively request an appeal, or understand the consequences of declining to do so.

Finally, the factors described below must now be considered during initial fear screenings, unfairly front-loading highly fact-specific and nuanced legal questions at a time when asylum seekers lack the ability to put their best case forward and generally lack guidance from an attorney as to the potential claims for relief they can raise. Moreover, they would be required to make that case not to an immigration judge with experience in these complex issues, but to an officer less qualified to assess it. As screenings are increasingly conducted by minimally trained border agents with an enforcement rather than trauma-informed or legal background, more and more asylum seekers with meritorious claims are being unduly turned away. Mandated consideration of these factors during initial screenings is certain to shut survivors out of the asylum process before they ever have their day in court.

  1.     Legal precedents: 8 CFR 1003.42(f).

Currently, Asylum Officers conducting credible fear interviews are required to apply the most generous interpretations of law so as not to unfairly preclude relief for asylum seekers based on what jurisdiction they are initially detained in. However, the new rule would instead require Asylum Officers and Immigration Judges to apply the legal precedents of the jurisdiction where they sit. The rule would, therefore, allow many Immigration Judges, who improperly read Matter of A-B- as foreclosing domestic violence-based asylum claims, to apply that case during initial fear screenings despite the holding in Grace v. Whitaker to the contrary.

  1.     Internal relocation: 8 CFR § 208.13(b)(3); 1208.16; 8 CFR § 208.13(b)(3); 1208.16.

Per the rule, applicants who fear persecution from NSAs bear the burden of proving by a preponderance of the evidence that it is unreasonable for them to internally relocate. Adjudicators must also now consider the “size, reach, or numerosity of the alleged persecutor.” Survivors will rarely if ever meet these standards. A survivor of trafficking often fears persecution from one individual. A common tactic of perpetrators is to threaten to find and punish victims for escaping, wherever they escape to. A survivor would have to be harmed because her persecutor carried out his threats, and then have objective evidence of such harm, in order to even have a chance of meeting this burden, which is highly unlikely. It is unjust to impose such an unrealistic burden under these circumstances.

  1.     Asylum bars: 8 CFR 208.30(e)(5).

Survivors of human trafficking who were forced by their traffickers to engage in crimes such as commercial sex/prostitution, drug smuggling, etc. will be unduly barred from asylum under the “serious non-political crime” bar. Case examples of human trafficking survivors forced to engage in crimes include:

Maria, 16, from Mexico, is forced to carry drugs over the Mexico border for her “boyfriend;” She is also sold for commercial sex in Mexico. She is arrested for drug trafficking at the border.

Brandon, 17, from a Central American country, was forced to sell drugs in the United States. He was eventually charged with drug trafficking in juvenile court. The Juvenile Justice System eventually found Brandon guilty of selling drugs.

  1.     Grounds of Persecution
  2.     Membership in a Particular Social Group 8 CFR § 208.1 General

The new proposed rule highlights at 8 CFR § 208.1(1) that social groups consisting of or defining the following circumstances will not receive favorable determination:

“Past or present criminal activity or association (including gang membership)…being a subject of recruitment efforts by criminal, terrorist or persecutory groups; the targeting of the applicant… for private criminal acts of which the government was not aware.”

ATEST believes that this language eliminates a particularly vulnerable group of individuals who may be seeking asylum—human trafficking survivors—and this distinction is inconsistent with U.S. federal law on protecting human trafficking survivors. ATEST believes this language should be completely eliminated to encourage the greatest number of vulnerable survivors to come forward. However, if DHS continues to utilize this language in the new rule, ATEST proposes the following update to the language:

“Past or present criminal activity or association (including gang membership)…being a subject of recruitment efforts by criminal, terrorist or persecutory groups; the targeting of the applicant… for private criminal acts of which the government was not aware. These provisions do not apply in the cases where an individual meets the definition of a victim of severe form of trafficking or recruitment into a severe form of trafficking as defined in 22 U.S.C. § 7102(9).”

  1. Membership in a Particular Social Group (PSG): 8 CFR § 208.1(c); 8 CFR § 1208.1(c).

PSGs cannot be circular and “must have existed independently of the alleged persecutory acts” under the rule. FGM/C was recognized as a basis for asylum in Matter of Kasinga, in which the cognizable PSG was “Young women who are members of the Tchamba-Kunsuntu Tribe of northern Togo who have not been subjected to FGM, and who oppose it.” Subsequently, many cases involving Intimate Partner Violence (IPV) have been brought by members of PSGs defined in part by elements of domestic abuse itself; eg, Matter of A-C-R-G: “Married women in Guatemala who suffer domestic abuse but are unable to leave their marriages due to cultural and legal constraints.” Neither PSG would be acceptable under the rule.

PSGs also cannot be based on “interpersonal disputes” and/or “private criminal acts” “of which governmental authorities were unaware or uninvolved” with exceptions in “rare circumstances.”  This framing reverts us back several decades, prior to the passage of the Family Violence Prevention and Services Act and the Violence Against Women Act (VAWA).  Domestic violence in the U.S. was dismissed as a private family matter, meant to stay behind closed doors with victims suffering in silence. It is noteworthy that the government remained on the sidelines precisely for this reason, yet this was circularly used to justify its failure to intervene. The rule’s retrogressive framing of family violence as a “personal dispute,” even when an asylum seeker can document that it is severe, pervasive, and widely tolerated by authorities and others in her country, runs afoul of the U.S.’ own domestic laws and policies. A core function of the government is to protect individuals from GBV—this function cannot simply be abdicated by deliberately obscuring GBV from view.

Nonetheless, the new standard would require survivors to report NSA persecution to authorities.  Laws against GBV are limited or non-existent in many countries. Or, prosecutors may fail to bring charges, and judges and juries may render weak verdicts or acquittals in cases involving GBV. Reporting GBV in and of itself can even be life-threatening due to retribution for doing so. While some law enforcement officers ignore or dismiss reports of GBV, others may even be complicit in harming survivors. A law enforcement officer may himself be a perpetrator, and fellow or supervising officers may turn a blind eye or help cover up violence. Officers may have a family or personal relationship with perpetrators.

Current asylum law permits submission of evidence as to why reporting was not possible or dangerous. There is no legitimate justification for prohibiting an applicant from even presenting such evidence, and rather, requiring her to show that she potentially risked her life to do so. Indeed in ATEST’s experience, many survivors of human trafficking are not identified as victims and face further trauma and abuse by the criminal justice system. This is especially true of those involved in sex trafficking who face criminal liability of their own in every case, given the criminal nature of the work they were forced to engage in. Survivors should be able to seek asylum as victims of systemic human rights abuses, sanctioned by the state. Survivors should not be punished twice: first by the failure of their own government to protect them, and second by our asylum system’s refusal to accept evidence of that failure.

In addition, the “rare circumstances” exception to this provision is meaningless, because applicants won’t be able to assert an exception at all – their cases will be first deemed frivolous or pretermitted as explained below. And finally, PSGs not raised before the immigration court cannot be raised later, even on a finding of ineffective assistance of counsel. Survivors notoriously face many barriers to access to counsel to help them frame their cases, such as economic and social isolation due to IPV as noted above.

  1.     Political Opinion:  8 CFR § 208.1(d); 8 CFR § 1208.1(d).

A political opinion as grounds for persecution under the rule must involve a “discrete cause related to political control of a state or unit thereof.” This exceptionally narrowed definition would exclude asylum seekers targeted for trying to advance equal access to education, employment, marriage, property ownership and inheritance, legal systems, and even the political process. Persecution on account of “feminism” as a political opinion—the right to equality under the law for women and men—would not be accepted, no matter how extreme the harm inflicted on activists.

  1.     Severity of Persecution: 8 CFR § 208.1(e); 8 CFR § 1208.1(e).

Persecution has traditionally been understood in our domestic asylum laws and under international refugee protection principles to mean a ‘threat to life or freedom.’ The rule proposes to drastically limit the definition of persecution to harm so severe that it “constitute[s] an “exigent” threat.” There is no discussion of the vastly different forms of harm experienced by different asylum seekers and the primacy of a case-by-case analysis. For survivors of IPV, for example, persecution may consist of relentless cumulative harassment, intimidation, threats, or acts of violence to oneself or one’s children, resulting in chronic, extreme, and debilitating PTSD. Under this provision, such harm will be arbitrarily dismissed regardless of the devastating impact on the individual who must endure it.

  1.     Nexus: 8 CFR § 208.1(f); 8 CFR § 1208.1(f).

Alarmingly “resistance to recruitment or coercion by guerilla, criminal, gang, terrorist or other non-state organizations” and/ or “criminal activity” is explicitly deemed invalid as a basis for establishing a nexus between persecution and a protected ground (New 8 CFR § 208.1(f)(iv)&(vi)). In ATEST’s experience, some of the most vulnerable children its members serve are recruited and then forced to commit crimes for gangs or other criminal actors. Furthermore, since their trafficking happened in other countries they are not eligible for T-visas, and Asylum might be their only viable form of immigration relief and protection. For example, Pedro fled his home country after threats that if he did not work for the gang, the gang would sell his sister into prostitution. Then at the border, Pedro was forced to carry a backpack of drugs by another criminal gang. He witnessed his friend refuse to carry the backpack, shot in the head and burned in a garbage can as an example to others about what would happen if they too refused. Pedro did not refuse but was stopped at the border with drugs. He was 14 at the time.

ATEST worries that cases involving children who are perhaps the most vulnerable to the exploitation of organized crime and gangs are being categorically denied protection in the United States for crimes their traffickers force them to commit. This is contrary as discussed above to the U.S. Governments work around human trafficking and recognizing trafficking survivors as victims, not criminals. It also seems at odds with the United States’ own federal definitions of human trafficking and who is deserving of specialized protections in the United States as a victim of trafficking also discussed more in detail above. Therefore ATEST supports striking New 8 CFR § 208.1(f)(iv)&(vi) from the proposed rule.

If DHS chooses not to strike these provisions ATEST suggests the following language:

“iv. Resistance to recruitment or coercion by guerilla, criminal, gang, terrorist or other non-state organizations except that which meets the definition of severe form of trafficking except as defined in 22 U.S.C. § 7102(9).”

  1. Criminal Activity except criminal activity that is a labor or service or commercial sex act as defined in 22 U.S.C. 22 U.S.C. § 7102(9).”

Just as alarming is that “Gender” is explicitly deemed invalid as a basis for establishing a nexus between persecution and a protected ground under the rule except in unspecified “rare circumstances.” Furthermore, claims will fail that involve persecution where the alleged nexus includes the following, among other things:

  • personal animus or retribution;
    • interpersonal animus in which the alleged persecutor has not targeted, or manifested an animus against, other members of an alleged particular social group in addition to the member who has raised the claim at issue; and
    • generalized disapproval of, disagreement with, or opposition to…non-state organizations absent expressive behavior in furtherance of a discrete cause against such organizations related to control of a state or expressive behavior that is antithetical to the state or a legal unit of the state.

GBV such as “honor” crimes often involves these scenarios, alone or in combination with one another. Another example is where an abuser has either not committed acts of IPV, or there is no evidence of such acts, prior to abusing the applicant. Thus, this provision also serves to shut out most GBV claims.

The rule also notes that “pernicious cultural stereotypes—machismo as the example—have no place in the adjudication of applications for asylum and statutory withholding of removal.” This provision conflates allegations of negative stereotypes with objective country conditions information. In doing so, it disparages the very submission of key corroborative evidence in support of gender-based claims; eg, documentation of the prevalence of honor crimes, the practice of forced marriage, tolerance or encouragement within a society of punishing women through IPV, rape, and femicide, etc. Indeed, it would require Asylum Officers to selectively ignore significant content in the very country conditions reports they are mandated to consult and apply.

  1.     Convention Against Torture (CAT): 8 CFR § 208.18; 8 CFR § 1208.18.

Under the proposed rule, torture only qualifies as a basis for CAT relief if perpetrated under color of law—ie, if it is not inflicted by “rogue officials.” It must also be intentionally inflicted “by or at the instigation of or with the consent or acquiescence of a public official or person acting in an official capacity.” “Acquiescence” means actual knowledge or willful blindness and “requires an omission of an act that the official had a duty to do and was able to do.” These changes under the rule will make it near impossible for survivors of GBV to succeed in CAT claims. For example, a survivor would have to show that her policeman-husband tortured her deliberately to further an official purpose, despite her utter powerlessness because of his position of authority. And, in countries where certain forms of IPV, sexual assault, and “honor crimes” are either legal or not illegal, there would be no affirmative duty of an official to protect a survivor from this harm. A government official could be enlisted by a woman’s family to torture her to compel her to submit to a forced marriage. The official would be considered “rogue,” yet she would still suffer at the hands of authorities with absolutely no possibility of recourse at all.

III.      For the Few Survivors of GBV Who Pass Their Initial Fear Screenings, Failure on the Merits of Their Asylum Claims Is all but Guaranteed

The few, if any, survivors who do manage to pass their initial screening must still meet the rule’s newly restrictive substantive standards for asylum and withholding of removal when presenting their claims on the merits.

  1.   Survivors Will Likely be Denied Relief as a Matter of Discretion: 8 CFR § 208.13; 8 CFR § 1208.13.

Among other things, the failure of an applicant to seek asylum in a country through which she transited will be deemed “significantly adverse” to her claim and must be considered. Yet, survivors of GBV are often followed by their persecutors wherever they try to escape, including neighboring countries. Persecutors may also enlist proxies to pursue, capture, punish and return survivors to them. A survivor might also face threats to her safety as a woman traveling alone in a country of transit, or without permission from a male relative.

ATEST appreciates DHS’s special exception to these provisions if the person meets the definition of a “victim of severe form of human trafficking,” however, feels strongly that for the same reasons victims of severe forms of trafficking are exemption other victims of GBV should be given this same explicit exemption if the provision is not deleted in its entirety.

Further, ATEST does not understand the logic of DHS specifically exempting trafficking victims from certain significant adverse discretionary standards but not exempting them specifically in (d)(1)(iii)(D-H) as often traffickers prevent victims from fulfilling the obligations listed. The standard that Asylum is also barred, except in “extraordinary circumstances” places unreasonable barriers on all applicants of GBV, including human trafficking. In ATEST’s experience, almost all survivors its members serve might have at least one if not all the following list:

  • accrued more than one year of lawful presence before applying;
  • failed to timely file any required tax return;
  • failed to satisfy any tax obligation;
  • withdrew a prior asylum application with will or abandoned a previous application;
  • missed an asylum interview; and
  • had a final order and did not file a motion to reopen based on changed country conditions within one year of the changed conditions.

DHS must take into account that many asylum seekers, including survivors of GBV, suffer from Post-Traumatic-Stress-Disorder (PTSD) as a result of persecution.  PTSD can severely disrupt day-to-day life and interfere with basic administrative tasks. On top of this, survivors of IPV in the U.S. who are seeking asylum contend with threats from perpetrators for asserting independence—financial or otherwise.  This can take the form of abusers thwarting survivors’ attempts to file paperwork or pay bills, attend key appointments or meetings with service providers, communicate with potential witnesses who can corroborate their claims, and learn about their legal rights.

  1.     Survivors of GBV Will Be Unfairly Deemed Firmly Resettled if They Must Travel Through Other Countries En Route to the U.S.: 8 CFR § 208.15; 8 CFR § 1208.15.

Firm resettlement under the rule encompasses, among other things, whether an asylum seeker “resided or could have resided in any permanent legal immigration status or any non-permanent but potentially indefinitely renewable legal immigration status (including asylee, refugee, or similar status, but excluding a status such as a tourist) in a country through which the alien transited prior to arriving in or entering the United States.”

Limited access to financial resources might make flights directly from a home country to the U.S. very challenging for women and girls. Their escape will be circuitous and arduous; they might be more likely to need false documents or to leave under false pretenses, if they would otherwise need the permission of an abusive male relative to exit their country. Once a survivor has reached a country of transit, resettlement may be unsafe despite an offer of refugee or asylee status. As noted above, persecutors are known to pursue survivors in neighboring countries after they try to escape, and a survivor might also face threats to her safety as a woman residing alone in the country, or even in a refugee camp where there is little if any protection from sexual assault.

  1.   For the Few Survivors of GBV Who Pass Their Initial ‘Reasonable Possibility’ Screenings, Failure on the Merits of Their Statutory and/or CAT Withholding of Removal Claims is All but Guaranteed: 8 CFR § 208.18; 8 CFR § 1208.18.

Please see above for discussion of substantive elements of asylum claims, for impacts of the rule on survivors’ applications for statutory and CAT withholding of removal.

VIII.    The Proposed Rule’s Harsh and Sweeping New Definition of “Frivolous” will Prevent Survivors from Pursuing Relief: 8 CFR § 208.20; 8 CFR § 1208.20.

“Frivolous” under the rule includes cases where “applicable law clearly prohibits the grant of asylum” and applications are “filed without regard to the merits of the claim.” “Knowingly” includes willful blindness, not just actual knowledge. Asylum officers can find applications frivolous and refer cases to immigration judges on that basis. There are no warnings about frivolousness beyond the statutorily required notice (8 USC 1158(d)(4)(A)). Survivors of GBV, including those appearing pro se, will have their claims deemed frivolous if based on such abuse for any or all of the reasons described above. The rule’s prohibition on “gender” as a nexus between persecution and a protected ground does contain an exception in undefined “rare circumstances.” However, the broad definition of “frivolous,” and its harsh consequences will deter and prevent anyone from successfully arguing that their case meets the exception. Also, a survivor whose case is deemed frivolous under the rule will be permanently ineligible for any relief (other than withholding of removal), including VAWA cancellation of removal, or a VAWA, U, or T visa petition. As explained above, survivors applying for asylum who are also experiencing IPV in the U.S. are often blocked by abusers from accessing counsel and other service providers. Traumatized and isolated, they are in no position to learn about their legal rights or access or pay lawyers to help them frame their claims in order to preserve their right to seek other relief.

  1.   Survivors Will Be Unable to Seek Relief Because Their Cases Will Be Largely Pretermitted: 8 CFR § 1208.13 (e).

Survivors of GBV, like all asylum seekers, will suffer swift pretermission for failing to establish a prima facie claim. Again, along with the new “frivolous” standard, pretermission will prevent even those who might ultimately meet the “rare circumstances” exception in gender-based cases from framing and presenting evidence of such circumstances in court. The parameters of the unexplained “rare circumstances” exception will go untested. Those who simultaneously have pending VAWA or U visa petitions will likely be deported in the meantime before decisions on their petitions have been rendered that could have permitted them to remain in the U.S. Upon deportation, petitioners will not only face challenges in responding to Requests for Evidence and other critical correspondence about their cases; they will be vulnerable to life-threatening violence and other harm that will prevent them from ever safely returning to the U.S. even if their petitions are ultimately granted.

For trafficking survivors petitioning for T visas, the results are even more severe. Petitioners who are deported (i.e. those who do not have “continued presence”) will be denied T-visa status for failure to maintain presence in the U.S. These results undoubtedly violate the bipartisan will and express intent of Congress in enacting these remedies for survivors.

  1.     The Rule’s New Broad Information Disclosure Provisions will Put Survivors’ Safety at Risk: 8 CFR § 208.6; 8 CFR § 1208.6.

The rule expressly allows disclosure of information in an asylum application “as part of a federal or state investigation, proceeding, or prosecution; as a defense to any legal action relating to the alien’s immigration or custody status; an adjudication of the application itself or an adjudication of any other application or proceeding arising under the immigration laws; pursuant to any state or federal mandatory reporting requirement; and to deter, prevent, or ameliorate the effects of child abuse.” Abusers frequently lodge false accusations against victims to retaliate if they report abuse, or to manipulate and wreak havoc on their lives to reinforce control. Asylum seekers simultaneously experiencing DV in the U.S. will be at the mercy of abusers who report them to law enforcement or DHS for fabricated allegations of crime, child abuse, immigration violations, etc.

Release of information about asylum applications can also put survivors at grave risk of harm, which is precisely the reason why the release of such information other than in exceptional circumstances is currently strictly prohibited. Survivors might be deterred from disclosing critical details of their claims if they fear disclosure of such information. Yet, withholding any information about their fear of harm will damage their claim and could potentially—unjustly—impact a determination as to their credibility. Confidentiality is critical to full disclosures, and full disclosures are critical to a survivor’s chances for protection.

Finally, for child trafficking victims, cooperation with Law Enforcement is strictly not required for T-visa immigration status. INA § 101(a)(15)(T)(III)(cc). Additionally, for adults complying with any reasonable requests from a law enforcement agency, assistance in the investigation or prosecution of human trafficking is also exempted if a victim is unable to “cooperate due to physical or psychological trauma.” INA § 101(a)(15)(T)(III)(bb);8 CFR § § 214.11(b)(3)(ii) and (h)(4)(i). If DHS goes ahead with the harmful broad information disclosure requirements in the proposed rule, given the history of protecting those traumatized and who have not reached the age of majority in the INA, DHS should consider at least adding these specific exemptions for all asylum seekers in the rules’ disclosure terms for third-parties.

  1.   Conclusion

Thank you for considering ATEST’s comments submitted on behalf of the survivors we serve. As explained above, ATEST firmly opposes the proposed rule because it will close the door on the most vulnerable asylum seekers in dire need of a safe haven. The rule is an unlawful and inhumane attack on all asylum seekers and also arbitrarily targets survivors of GBV and fails to protect survivors of human trafficking and prevent additional trafficking from happening in the future. The Departments should immediately rescind the rule. Please contact Stephanie Richard, Senior Policy Advisory at ATEST member, CAST, at [email protected]; 213-365-1906 x 115 to provide any additional information you might need. ATEST looks forward to your response.


The Members of the Alliance to End Slavery and Trafficking (ATEST)

ATEST member organizations include: Coalition to Abolish Slavery and Trafficking (CAST), Coalition of Immokalee Workers (CIW), Free the Slaves, Human Trafficking Institute, National Network for Youth (NN4Y), Polaris, Safe Horizon, Solidarity Center, T’ruah: The Rabbinic Call for Human Rights, United Way Worldwide, Verité, and Vital Voices Global Partnership.

 [i] Polaris, “Crisis in Human Trafficking During the Pandemic,” Available at

[ii] See also Overlooking Men and Boys in Forced Criminality at the Border: A Content Analysis of Human Trafficking Training and Awareness Materials, University of San Francisco (Spring 2018). Available at; Victim or Criminal?

Trafficking for Forced Criminal Exploitation in Europe, (2017). Available at;; Organized Crime Taskforce UK: Training Handout. Available at

[iii] Id.; See also National Survivor Network Members Survey: Impact of Criminal Arrest and Detention on Survivors of Human Trafficking (August 2016).

[iv] See also 8 U.S. Code § 1589.Forced labor, including in the criminal definition “coercion” and 8 U.S. Code § 1591.Sex trafficking of children or by force, fraud, or coercion. (Emphasis added)

[v] CAST factsheet on COVID impact and need for more resources. Available at; See also UNDOC, IMPACT OF THE COVID-19 PANDEMIC ON TRAFFICKING IN PERSONS.; UN News, COVID-19 crisis putting human trafficking victims at risk of further exploitation (May 2020). Available at

Media contact: Terry FitzPatrick: 571-282-9913 | [email protected]