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.