Section Review

Gender asylum: Bringing the law into the 21st century

Asylum law provides relief to people fleeing persecution based on race, religion, nationality, membership in a particular social group or political opinion. Not surprisingly, gender is missing from the listed categories. However, over the last decade, immigration law has slowly been evolving to include some types of gender-based persecution under the social group classification, including female genital mutilation (FGM),1 women who oppose repressive gender-specific codes,2 forced marriage3 and domestic violence.

In 1995, legacy INS did issue a memorandum to its asylum officers on how to adjudicate women's asylum claims, but this memo is insufficient as the government fails to follow it in every case (see infra) and does not have the same effect as binding precedent or law. The interim step for achieving justice for immigrant women is to expand a particular social group to include women, but the highest order of protection would be to establish a sixth category for women. With a definitional category of their own, women would not have to go through the excruciating process of establishing their rights piecemeal, on a case-by-case basis.

Two areas, trafficking and domestic violence, exemplify the need for serious reform and adding women as their own recognized category in asylum law. In the area of human trafficking, current law provides a T visa (not gender specific) for trafficking victims but no redress for those who fear trafficking. Women who fear becoming victims of trafficking should the United States return them to their home countries can try to make the particular social group argument. Though the United Nations High Commissioner for Refugees (UNHCR) takes the position that persons at risk of being trafficked may qualify for refugee status, "Some victims or potential victims of trafficking may fall within the definition of refugee contained in Article 1A(2) of the 1951 Convention and may therefore be entitled to international refugee protection,"4 the particular social group argument for potential trafficking victims may be a difficult one to win. Thus, you can only benefit from our protection if you've already been victimized. This conundrum is analogous to U.S. domestic violence law circa 1980s: don't bother to press charges against your abuser unless you can show up at the police station with black eyes, lacerations and documentation of previous hospitalizations.

In the area of domestic violence, however, being a victim of violence is still no guarantee of asylum. Matter of R-A-, is the most recent case on record that deals with domestic violence.5 An immigration judge had granted asylum to a Guatemalan woman, Rodi Alvarado, who suffered years of vicious abuse by her husband. In 1999, the Board of Immigration Appeals (BIA) reversed the judge's grant of asylum.

Next, Attorney General Janet Reno vacated the BIA's decision. At the time, final regulations on gender-based claims were pending, and Reno wanted the case to be reviewed once the rules were issued. However, when John Ashcroft became attorney general, he sat on the case and regulations and never took action, and then the Department of Homeland Security (DHS) took jurisdiction, and, again, failed to issue the regulations. Only just last month, after 14 years of waiting, Alvarado finally won asylum - DHS informed the court that she was eligible. However, DHS' decision applies only to Alvarado and regulations have still not been issued, thus leaving many other women in limbo. These regulations would establish that women may comprise a social group, per se, that being a woman is an immutable characteristic, one that a woman cannot or should not be required to change.

The concept of the immutability of being a woman seems uncomplicated, yet opponents such as the Federation for American Immigration Reform (FAIR) define such an expansion of the definition of social group to include gender-based asylum as "ideological 'mission creep.'"6 Not only is FAIR's assertion biased by restrictionist and sexist motives, but it is also plain wrong on the facts.

First, only a misogynist could define women's lives as "ideological 'mission creep.'" If you were to replace "women" with the Somali Bantu or Serbian Muslims, their arguments would receive the immediate (and warranted) charge of racism. Second, the BIA's decision in Matter of R-A- only serves to display the majority's perplexing inability to understand domestic violence, and opponents of gender-based asylum fail to understand that women are targeted for domestic (and other) violence because they are women, a specific group targeted for persecution because of an immutable characteristic. Specious arguments that granting asylum based on gender would "open the floodgates" - and that women don't meet the definition of a particular social group absent the persecution and therefore don't meet the test of existing as a group separate and apart from the persecution - are wrong on the facts and inconsistent in the law. In Matter of R-A-, the BIA turned its back on its own precedential history in asylum jurisprudence. In Matter of Acosta, the BIA wrote:

Applying the doctrine of ejusdem generis, we interpret the phrase "persecution on account of membership in a particular social group" to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.7

DV victims are not members of a social group solely by virtue of their persecution. The inverse is actually the case: DV victims are persecuted precisely because they are a member of a social group - women. DV victims quite plainly meet both tests of being a "recognized segment of the population" and are "understood to be a societal faction."

As the BIA demonstrated in Matter of R-A-, unfortunately, restrictionist arguments are not the only obstacle to justice for immigrant women. Moreover, our own government has been hostile to immigrant women. "Courts, however, have admonished government attorneys for failing to adhere to the principles set forth in the 1995 legacy INS memorandum."8 As recently as 2004, the U.S. government propounded the argument that rape is simply a matter of "forceful" sex, and the Ninth Circuit court chastised it for contributing to this noxious notion: "Furthermore, the DOJ's argument simply perpetuates the myth that "[r]ape is just forceful sex by men who cannot control themselves[.]"9 And there's more: "I was taken aback by the argument that a sexual assault like this one could be attributed to sexual attraction alone."10; a New York immigration judge "noting that legacy INS' closing argument, which referred to the domestic violence suffered by the applicant as a mere "family matter," is a position in direct contravention of its own gender guidelines)."11

Back to those scary "floodgates": in 1993, Canada was the first country to recognize gender-based persecution with formally issued guidelines. As USCIS itself states on its Web site, the "Immigration and Refugee Board of Canada reports that gender-related claims have actually dropped steadily since a peak of 315 claims in 1995." Furthermore, approval rates are extremely low - an average of 28 percent at USCIS from 1973-2004, average 28 percent,12 and 22 percent in the courts.13

Finally, once again, critics of gender asylum reveal their complete disrespect for refugee women by referring to them as "collateral consequences."14 The majority of women refugees seek refuge in countries such as Iran, Sudan, Pakistan and Gaza. The United States takes 80,000 refugees - a tiny fraction of the world's 16 million refugees (which does not include the 26 million IDPs).15 For asylum seekers, the United States has an estimated 49,000 new claims in 2008 (numbers are not subdivided by type), but "[c]ompared to the size of its national population, however, the United States had only one asylum seeker per 1,000 inhabitants, while the average in the European Union countries was 2.4 asylum seekers per 1,000 inhabitants. After the United States, the main countries of destination for asylum seekers in 2008 were Canada (36,900), France (35,200), Italy (31,200) and the United Kingdom (30,500).16

FAIR argues that United States recognition of gender asylum would only serve to give these countries a reason to withdraw from international conventions that aim to defend women's rights. It posits that withdrawal from such treaties would be a "collateral consequence" of recognizing women as legitimate asylum seekers. Does FAIR know why the majority of women refugees seek refuge in these countries? Simple geography - they can't just jump on their private jets and head for America. The fact that they flee to societies as repressive as their own does not discount their membership in a social group. Their flight merely reflects their desperation. We do not and should not base our humanitarian goals of asylum law on what may happen in the future should we recognize gender asylum claims as viable. Using the example of Saudi Arabian withdrawal from conventions is a disingenuous argument. Whether they are in or out, their treatment of refugees - of all its citizens, especially women - is still unacceptable. One thing is clearly certain, though: denying women asylum in the United States is certainly not going to make Saudi Arabia or any other such repressive regime start reflecting on their human rights crimes and suddenly become a beacon of humanitarianism.

Many people inanely argue that these countries' treatment of women is cultural, and it is not our place to question culture. Perhaps, if the international community were to challenge the legitimacy of such states' treatment of women (in the "How To" guide, see apartheid, not Iraq) - 52 percent of the population on Earth would be able to enjoy life without fear.

We should base our laws on legal precedent and what is fair and just under the Constitution and laws of Congress. It is not a leap of jurisprudence to recognize women as a social group or to extend the five groups to six in order to delineate one for women. The premise at issue in gender asylum laws is basic. By analogy, if a Black South African came to the United States during apartheid, he would have a clear claim of asylum under race (naturally social group, and/or political opinion would also apply, but for purposes of my argument, race is the most analogous). Yet, if a woman came from Afghanistan during Taliban rule, she would have no such protection, even though gender is every bit as immutable as race. Because sexism is one of the last bastions of bigotry, it prevents groups such as FAIR from seeing the two "isms" on the same continuum of hatred and persecution. Women are treated as the mules of the world, and they certainly don't need facile philosophies, drafted in insular office suites, when they are face to face with U.S. asylum law and a return to their country is tantamount to a death sentence.

Opponents of expanding the social group category to include gender-based claims may have one point. Let's not expand social group. Although the premise of women as a social group is on strong legal ground and should be the short-term solution, a better answer does exist. The truly equitable solution would be to add gender as a sixth recognizable category in asylum law. Women are targeted and persecuted because they are women, whether the persecution involves attempted murder, torture, domestic violence, FGM, rape or rape as a weapon of war. They deserve the protection of asylum law on the basis of the immutable characteristic of gender, the characteristic for which they are persecuted on the same level of someone who is persecuted on the basis of race or national origin. Recognition of women as their own group has firm grounding in our civil rights law - Title VII recognizes women by prohibiting discrimination on the basis of sex. Our asylum law should mirror our civil rights law and carry forward our commitment to liberty and justice for all.

Notes

1.  Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

2.  Fatin v. INS, 12 F.3d 1233, (3d Cir. 1993).

3.  Matter of [name withheld], A76 512 001 (IJ Oct. 18, 2000)(Chicago, IL)(Zerbe, IJ), 77 Interpreter Releases 1634 (November 20, 2000).

4.  See UNHCR, Guidelines on International Protection: "The application of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked (2006) at ¶ 12"

5.  Matter of R- A- , Int. Dec. 3403 (BIA 1999).

6.  Hethmon, Michael, The Acosta Doctrine And Gender Asylum: An Immigration Reform Perspective On Matter of R-A-, ILW.com, March 13, 2003.

7.  Matter of Acosta, 19 I&N Dec. 211, 223 (BIA 1985).

8.  Germain, Regina. AILA's Asylum Primer, 59 (5th ed. 2007).

9.  Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1076 (9th Cir. 2004) (citations omitted).

10.  Angoucheva v. INS, 106 F.3d 781, 793 n.2 (7th Cir. 1997) (Rovner, J., concurring)

11.  Germain, Regina. AILA's Asylum Primer, quoting Matter of Sharmin, A73 556 833 at 20 (IJ Sept. 27, 1996) (New York, NY) (IJ Bukszpan).

12.  USCIS Yearbook of Immigration Statistics: 2004, Table 16.

13.  FY 2008 Statistical Year Book, U.S. Department of Justice, EOIR.

14.  Hethmon, Michael, The Acosta Doctrine And Gender Asylum: An Immigration Reform Perspective On Matter of R-A-, ILW.com, March 13, 2003.

15.  http://www.unhcr.org/4a2fd52412d.html.

16.  Briefing Notes, 24 March 2009. "This is a summary of what was said by UNHCR spokesperson Ron Redmond - to whom quoted text may be attributed - at the press briefing, on 24 March 2009, at the Palais des Nations in Geneva." http://www.unhcr.org/49d479dd6.html.

The Author

Marisa A. DeFranco has more than 12 years of experience specializing in immigration and nationality law. In her Salem practice, she serves the immigration needs of both businesses and individuals. DeFranco is a member of the American Immigration Lawyers Association (AILA) and served as the New England Chapter chair in 2006. In 2008, she was appointed to the Massachusetts Commission on the Status of Women.

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