A short history of gender asylum in the United States: Resistance and ambivalence may very slowly be inching towards recognition of women's claims

Refugee Survey Quarterly

Volumn 29, Issue 2, 2010, Pages 46-63

  Musalo, Karen ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; GENDER DISPARITY; GENDER ISSUE; REFUGEE; UNITED NATIONS; WOMENS STATUS;

UNITED STATES;

EID: 77957712130     PISSN: 10204067     EISSN: 1471695X     Source Type: Journal    
DOI: 10.1093/rsq/hdq026     Document Type: Article

References (86)

1. The term "gender-asylum" is generally understood to describe two types of claims: (1) claims in which the form of persecution is unique to, or disproportionately inflicted on women (for example, female genital cutting (FGC), domestic violence, rape, forced marriage) regardless of the 1951 Geneva Convention Relating to the Status of Refugees (Refugee Convention) ground for which it is inflicted and (2) claims in which the harm may or may not be gendered, but the reason (nexus) it is imposed is because of the victim's gender. A woman raped for political activism has suffered a gendered form of harm, imposed for non-gender reasons (political opinion), whereas a woman prohibited from attending school or working has suffered non-gendered forms of harm, which are imposed for gender reasons. It is not uncommon for claims to involve gendered forms of harm, which are also inflicted for reasons of gender. The clearest examples of such claims are those involving FGC.
2. Matter of Kasinga 21 I. & N. Dec. 357 (BIA 1996).
3. The correct spelling of Ms Alvarado's first name is "Rody". Court documents erroneously report the spelling as "Rodi" and it is this latter spelling which appears in the many decisions and commentary on the case.
4. Matter of R-A-22 I. & N. Dec. 906 (BIA 1999).
5. Asylum and Withholding Definitions, 65 Fed. Reg. 76588 (7 Dec. 2000).
6. Attorneys General Janet Reno, John Ashcroft, and Michael Mukasey all took personal jurisdiction over the case. Their respective actions in the case are discussed in Section 3.3.3.
7. By the time the IJ decided Ms Alvarado's case, the Department of Homeland Security (DHS), which represents the Government in these proceedings, had stated that Ms Alvarado was "eligible for asylum and merits a grant of asylum as a matter of discretion". The IJ's decision simply stated that: "Inasmuch as there is no binding authority on the legal issues raised in this case, I conclude that I can conscientiously accept what is essentially the agreement of the parties [to grant asylum]." Decision of the IJ, 10 Dec. 2009 (on file with the author).
8. In April 2009, shortly after the Obama Administration came into power, the DHS filed a brief to the BIA in the asylum claim of a Mexican woman, known as L.R. who had suffered extreme domestic violence. Department of Homeland Security's Supplemental Brief, 13 Apr. 2009 (DHS L.R. Brief), available at: http://cgrs.uchastings.edu/pdfs/Redacted%20DHS%20brief%20on%20PSG.pdf (last visited 9 Jun. 2010). The case had been denied by an IJ in October 2007; and prior to the Obama Administration, the DHS had fully defended the IJ's decision. In its April 2009 brief, however, it retreated from that defence, and stated that in some cases, women who are victims of domestic violence could qualify for asylum. This case is discussed in detail in Section 3.4.
9. Geneva Convention Relating to the Status of Refugees, 189 UNTS 150, 28 Jul. 1951 (entry into force: 22 Apr. 1954).
10. Protocol Relating to the Status of Refugees, 606 UNTS 267, 31 Jan. 1967 (entry into force: 4 Oct. 1967).
11. David Ray of the Federation for American Immigration Reform (FAIR) was quoted in an article as saying that asylum "was never meant to be divorce court [...]. To expect asylum law to address family issues is impractical and invites huge abuses of the system.".
12. K. Musalo, "Protecting Victims of Gendered Persecution: Fear of Floodgates, or Call to (Principled) Action", Virginia Journal of Social Policy and the Law, 14(119), 2007, 132 (footnote 36).
13. The disparagement of such claims is illustrated by a comment reported in Newsweek, where one anti-immigrant activist snidely commented, "You get a punch in the mouth, and you're home free.".
14. A. Quindlen, "Torture Based on Sex Alone", Newsweek, 10 Sep. 2001, 76.
15. David Ray of FAIR directly invoked the floodgates argument, commenting, "You can't just say, 'I'm in a bad situation and therefore I'm a member of some new social group.['] If the categories grow so large as to include millions of people, asylum policy is going to crumble.".
16. D. Stein, "Ashcroft Re-Considers Clinton-Era Asylum Rule", The Stein Report, 3 Mar. 2003, available at: www.steinreport.com/archives/001682.html (last visited 19 May 2010).
17. The experience in Canada, which has accepted gender asylum claims since 1993, and in the US after the decision in Matter of Kasinga belie the myth of the floodgates: neither country experienced a surge of claims following their acceptance of the legitimacy of such claims.
18. For a discussion of the floodgates, see, Musalo, "Protecting Victims of Gendered Persecution", 132-133.
19. The reason that women have not deluged countries of asylum is explained as follows: "There are several explanations why the number of women asylum seekers has not dramatically increased with the legal recognition of gender claims for protection. First, women who would have legitimate claims for gender asylum often come from countries where they have little or no rights, which limits their ability to leave their countries in search of protection. Second, they are frequently -if not always -primary caretakers for their children and extended family. Thus they often have to choose between leaving family behind, or exposing them to the risks of travel to the potential country of refuge. [...] Finally, women asylum seekers often have little control over family resources, making it impossible for them to have the means to travel to a country where they might seek asylum".
20. The reluctance to define cultural norms as persecution is illustrated by the position taken by the US immigration authorities in Matter of Kasinga. In its brief to the BIA, the then Immigration and Naturalization Service (INS) argued that it was difficult to consider FGC as persecution since "most of its practitioners believe that they are simply performing an important cultural rite that bonds the individual to society".
21. Brief of the INS to the BIA in Matter of Kasinga, 28 Feb. 1996, 16-17, available at: www.justice.gov/eoir/efoia/kasinga3.pdf (last visited 17 May 2010).
22. EXCOM, Conclusion on Refugee Women and International Protection, EXCOM Conclusion No. 39 (XXXVI), 18 Oct. 1985.
23. The enumeration of UNHCR and EXCOM's Conclusions is not intended to be comprehensive; there are other UNHCR documents which speak generally to the issue of refugee women. The materials discussed herein are those most relevant to the interpretive issues.
24. See, D. Buscher, "Refugee Women: Twenty Years On".
25. A. Edwards, "Transitioning Gender: Feminist Engagement with International Refugee Law and Policy 1950-2010", contributions in this volume.
26. UNHCR, Guidelines on the Protection of Refugee Women, Geneva, UNHCR, 1 Jul. 1991.
27. EXCOM, Conclusion on Refugee Protection and Sexual Violence, EXCOM Conclusion No. 73 (XLIV), 8 Oct. 1993.
28. Immigration and Refugee Board of Canada (IRBC), Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution, Mar. 1993, updated version available at: www.irb-cisr.gc.ca/eng/brdcom/references/pol/guidir/Pages/women.aspx (last visited 20 May 2010).
29. US Department of Justice (DOJ), Considerations for Asylum Officers Adjudicating Asylum Claims From Women, memorandum from Phyllis Coven, Office of International Affairs, 26 May 1995 (Gender Considerations), published by INS in: 72 NO. 22 Interpreter Releases 771 at 771 (Jun. 1995).
30. The discussion of the national gender guidance of other States is beyond the scope of this article. For a list of countries and guidelines, see: http://cgrs.uchastings.edu/law/gender_guidelines.php (last visited 9 Jun. 2010).
31. UNHCR, Guidelines on International Protection No. 1: Gender-related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, UN Doc. HCR/GIP/02/01, 7 May 2002.
32. UNHCR undertook the Global Consultations on International Protection from 2000 to 2002 with three primary objectives: "to reaffirm State's commitment to the Refugee Convention, to resolve interpretative inconsistencies [...] and to devise new tools and approaches to situations not fully covered by the Convention.".
33. N. Kelley, "International Refugee Protection Challenges and Opportunities", International Journal of Refugee Law, 19(3), 2007, 401-439.
34. UNHCR addressed these objectives in three tracks. "The first track incorporated a Ministerial Meeting of the State Parties to the 1951 Convention and/or 1967 Protocol that culminated in a Declaration of the State parties to these human rights instruments. [...]. The second track [...] involved a series of expert roundtables that were held in various locations in Europe [...] and addressed specific issues on the interpretation of the 1951 Convention. [...]. The third track brought together States and other actors, including refugees, to examine specific or thematic refugee protection concerns.".
35. J. Simeon, "Exclusion Under Article 1F(a) of the 1951 Convention in Canada", International Journal of Refugee Law, 21(2), 2009, 199-200.
36. UNHCR, UNHCR Position Paper on Gender-Related Persecution, 1 Jan. 2000, available at: www.unhcr.org/refworld/docid/3bd3f2b04.html (last visited 21 May 2010).
37. The paper cautioned against "approaching refugee claims by women along the lines of the more traditional, and familiar, situation of refugee men." Ibid., sec. II, "A Gender-Sensitive Approach to Interpreting and Applying the Refugee Definition". It enumerated a number of harms unique to, or disproportionately inflicted on women, which could rise to the level of persecution. Included among these harms were sexual violence, punishment for transgression of law or policy, and discrimination -including State discrimination which resulted in women being abused with impunity by non-state actors. The paper notes that nexus could be based on any of the five 1951 Refugee Convention grounds, but that gender claims "have most often been analyzed" within the social group ground. "Membership of a Particular Social Group".
38. UNHCR, Guidelines on International Protection No. 1: Gender-related Persecution, para. 5.
39. UNHCR, Guidelines on International Protection No. 2: "Membership of a Particular Social Group" within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, UN Doc. HCR/GIP/02/02, 7 May 2002.
40. UNHCR, Guidelines on International Protection No. 1: Gender-related Persecution, paras. 28-29.
41. UNHCR, Guidelines on International Protection No. 2: "Membership of a Particular Social Group", paras. 12, 13.
42. UNHCR, Guidelines on International Protection No. 1: Gender-related Persecution, para. 21.
43. UNHCR, Guidelines on International Protection No. 2: "Membership of a Particular Social Group", paras. 21-23.
44. Islam v. Secretary of State for the Home Department [1999] 2 WLR 1015 (HL (1999)). Refugee Appeal No. 71427/99 (2000), available at: www.refugee.org.nz/Fulltext/71427-99.htm (last visited 21 May 2010).
45. Minister for Immigration and Multicultural Affairs v. Khawar [2002] 76 ALJR 667, available at: www.austlii.edu.au/au/cases/cth/HCA/2002/14.html (last visited 21 May 2010).
46. The Canadian Guidelines attempted to address the full range of issues implicated in gender claims -when is a harm persecution; how is nexus to be analysed; what evidentiary issues are intrinsically related to gender-related claims; and what are the special issues that may arise in refugee determination hearings.
47. IRBC, Guidelines on Women Refugee Claimants,6.
48. US DOJ, Gender Considerations,6.
49. In the US, asylum-seekers who are not in removal proceedings can affirmatively apply for asylum, and have their cases adjudicated in a non-adversarial forum before an Asylum Officer. Once they are in removal proceedings, claims for asylum are adjudicated by IJs, and may then be appealed to the BIA, and then to the federal circuit courts of appeal.
50. US DOJ, Gender Considerations, 2.
51. Ms Kassindja arrived in the US at Newark International Airport on 17 Dec. 1994 and was immediately placed in detention. She spent more than 16 months in detention while her case was being decided.
52. In finding Ms Kassindja not credible, the IJ held that her testimony lacked "ationality", "internal consistency", and "inherent persuasiveness". Matter of Kasinga, 364. The IJ's ruling was not based on generally accepted criteria in the determination of credibility, but arose from his disbelief regarding prevailing cultural norms in Togo. For instance, he found a contradiction in Ms Kassindja's testimony that FGC was pervasive, yet she had managed to avoid it until her father's death, and he found it not believable that Ms Kassindja did not know her mother's whereabouts after her aunt banished the mother.
53. In re Kasinga, No. A73 476 695 at 12 (Immigr. Ct. 25 Aug. 1995).
54. At the time Ms Kassindja's case was decided, the Government was represented in immigration proceedings by the INS, which was housed within the DOJ. In 2002, Congress enacted the Homeland Security Act which reorganized many federal agencies, and created the DHS.
55. Government's Brief In Response to Applicant's Appeal From Decision of IJ in Matter of Kasinga, 16-17 (on file with the author).
56. J. Mann, "When Judges Fail", Washington Post, 19 Jan. 1996.
57. C.W. Dugger, "Woman's Plea for Asylum Puts Tribal Ritual on Trial", New York Times, 15 Apr. 1996, A1.
58. C.W. Dugger, "U.S. Frees African Fleeing Ritual Mutilation", New York Times, 25 Apr. 1996, A1.
59. C. Shiner, "Persecution by Circumcision: Woman Who Fled Togo Convinced U.S. Court but Not Town Elders", Washington Post, 3 Jul. 1996, A1.
60. The INS argued that in order for a harm to constitute "persecution" it must be inflicted on the victim with malignant or punitive intent. (Brief of the INS to the BIA in Matter of Kasinga.) Following from its own premise, the INS posited that FGC cases are difficult because "[i]f malignant or punitive intent on the part of the actor were always required before persecution is found, then FGM would rarely be considered persecution. Presumably most of its practitioners believe that they are simply performing an important cultural rite that bonds the individual to society." The INS then suggested that the requirement of malignant or punitive intent be waived where the type of harm "is so extreme as to shock the conscience of the society from which asylum is sought." According to the INS, in order to "shock the conscience", (1) the harm must be extreme; (2) the harm must be inflicted on an "unconsenting or resisting" individual; and (3) the individual must actually be "seized and subjected" to the conscience-shocking violation, and not "merely" suffer the consequences, "albeit burdensome," for refusal. In what is a disturbing proposition to many human rights and children's rights advocates, the INS asserted that FGC victims who were mutilated as children are presumed to have consented to it.
61. Matter of Acosta 19 I. & N. Dec. 211 (BIA 1985).
62. The particular social group was defined as "[y]oung women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by the tribe, and who oppose the practice." Matter of Kasinga, 365.
63. INS v. Zacarias 302 U.S. 478 (1992).
64. The BIA did not analyse the individual motivation of the individual or individuals who would inflict the FGC. Instead, it looked to the evidence showing that FGC is practiced "to overcome sexual characteristics of young women" of the described social group, and on that basis concluded that it was "on account of" status in that group. Matter of Kasinga, 367.
65. Matter of R-A-(BIA 1999).
66. In re Alvarado, No. A73753922 at 8 (Immigr. Ct. 20 Sep. 1996).
67. The IJ found that Ms Alvarado had resisted her husband's brutal "acts of domination." This resistance constituted the expression of a political opinion against male domination, or could be interpreted as such by her husband. Mr Osorio's increasingly violent behaviour toward his wife was meant to punish her for the actual or imputed political opinion that men have no right to treat women in the manner in which he treated her.
68. The IJ's nexus analysis analogized FGC to domestic violence, and ruled that both are forms of oppression imposed upon women to maintain male domination; therefore the persecution is for reasons of a gender-defined social group. Specifically, the IJ's decision stated: "The Board recently held that an asylum applicant who was unwilling to undergo female genital mutilation (FGM) had a well-founded fear of persecution on account of her membership in a social group of 'young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who opposed the practice.' [...] The Board recognized FGM as a form of sexual oppression to assure male dominance and exploitation. In similar ways, the acceptance of spousal abuse assures male dominance and exploitation by enabling men to exert control over their female companions through threats or acts of violence.".
69. Matter of R-A-(BIA 1999), 910.
70. Matter of C-A-23 I. & N. Dec. 951 (BIA 2006) affirmed Castillo-Arias v. U.S. Attorney Gen. 446 F.3d 1190 (11th Cir. 2006). Social visibility requires that the members of the group be visible to the society at large, while particularity requires that the group not be large or diffuse.
71. Matter of R-A-(BIA 1999), 923.
72. Asylum and Withholding Definitions.
73. 8 CFR 1003.1(h)(1)(i) (2009).
74. Matter of R-A-22 I. & N. Dec 906 (A.G. 2001; BIA 1999).
75. DHS's Position on Respondent's Eligibility for Relief at 43, Matter of R-A-23 I. & N. Dec. 694 (A.G. 2005) (A 73 753 922), available at: http://cgrs.uchastings.edu/campaigns/alvarado.php (last visited 9 Jun. 2010).
76. Matter of R-A-23 I. & N. Dec. 694 (A.G. 2005).
77. Matter of R-A-24 I. & N. Dec. 629 (A.G. 2008).
78. Matter of C-A-.
79. Gatimi v. Holder 578 F.3d 611 at 615 (7th Cir. 2009).
80. UNHCR, Guidelines on International Protection No. 2: "Membership of a Particular Social Group", 960.
81. See Brief of the UNHCR as Amicus Curiae in Support of the Petitioner, Valdiviezo-Galdamez v. Att'y Gen., 14 Apr. 2009, available at: http:/unhcr.org/refworld/docid/49ef25102.htm (last visited 23 May 2010).
82. According to the DHS brief, a group based on a common-law relationship could also meet the "particularity" requirements, since such a relationship is quite susceptible to being defined "in a manner that entails considerable particularity." DHS L.R. Brief, 19.
83. The cognizability of the social group, and proof of nexus are not the only matters at issue, but they are the ones most germane to this article.
84. The CGRS provides technical assistance to attorneys with gender cases and attempts to track outcomes. CGRS's database, which includes 4,900 cases, allows an analysis and comparison of outcomes, and reveals inconsistent and seemingly arbitrary decision-making.
85. Under the DHS' approach, proof that a group is not accorded protection equivalent to other members in society can establish social visibility and provide circumstantial evidence of nexus. UNHCR has long endorsed an analysis which looks to whether women are not provided protection from abuse in analysing social group and nexus.