Recognizing Gender-Based Persecution as Grounds for Asylum

Edita Pojani was a student in Professor Birdsong’s Refugee Law seminar last spring. She wrote a very well written paper that examines the issue of gender bias in asylum law. Ms. Pojani is an advocate for a better U.S. immigration policy that explicitly recognizes violations inflicted upon women as a valid grounds for asylum. She has given her permission to post her paper on my blog. Read and learn.

Recognizing Gender-Based Persecution as Grounds for Asylum

Edita Pojani

Refugee & Asylum Seminar

I. Introduction

The image that comes to mind when thinking about a refugee or a human rights victim is that of a male figure, persecuted on account of his political or religious beliefs, nationality or ethnicity.[1] For far too long the world seems to have forgotten about the thousands of women who flee their country of origin due to persecution they have suffered on account of their gender.

This paper will consider the issue of gender bias in asylum law, and will advocate for a U.S. immigration policy that explicitly recognizes violations inflicted upon women as a valid grounds for asylum. While recognizing that gender based persecution can be inflicted on both women and men, the discussion in this paper will focus mainly on the challenges that women face as they battle with a system which so far has done little to take under consideration their unique claims that stem from persecution imposed upon them because they were born of the female sex.

In addition, this paper will address the central themes critically important in the determination of claims for asylum made by women fleeing gender persecution. It will advocate that gender specific abuses against women should be recognized as a fundamental human rights violation and be considered as a legitimate ground for the granting of asylum protection.

The paper is divided in several sections. Part two will examine the phenomena of domestic violence on women and the politics of gender based asylum. Part three, will provide a historical overview of the development of asylum law in the international arena and the issues associated with it. Furthermore, part four will provide a broad overview of asylum laws in the United States as provided in the Immigration and Nationality Act and the specific requirements than an alien must meet to obtain asylum. This section will also address the unsettled ground regarding gender-related claims in the U.S. and how this results in continued denial of asylum for women and girls who seek protection.

Next, part five will cover asylum laws of other jurisdictions, namely the European Union, Canada and United Kingdom, and the treatment that they give to gender based persecution. Finally, part six will explore the possibility of recognizing gender-based persecution as a valid ground for asylum by amending the Immigration Naturalization Act.

II. Violence on Women and Gender Based Asylum

Although women are persecuted against for the same reasons as men, women also frequently face gender based persecution.[2] The United Nations states that “‘gender-related persecution’ is a term that has no legal meaning per se.”[3] Rather, it is used to encompass the range of different claims in which gender is relevant in the determination of refugee status.”[4]Thus, gender based asylum refers to asylum applicants who have been persecuted for reasons directly relating to their gender, such as in the cases of rape, female genital mutilation (FGM), or domestic abuse.[5]

In particular, women have traditionally been relegated to the private sphere of life, giving them a subordinate status in society, and have “generally been excluded from recognized definitions and interpretations of human rights.”[6] Often times such persecution is suffered at the hands of husbands and members of their family, and the persecution is “inextricably tied to the notion that men, and by extension, the family, own the bodies of the women in the family.”[7]

Another element associated with gender-based persecution is an association of shame with women who have been raped or subjected to spousal abuse when they try to seek help in the community.[8] Often such women are ostracized and treated as “ruined property, unworthy of marriage” by members of the community or their families.[9] Further, when dealing with women who have been domestically abused, Professor Nancy Lemon, who has been a leading authority on domestic violence for more than 25 years, believes that based on her background and experience with women, gender is one of the main factors, if not the primary motivating factor, for domestic violence.[10]

Some of the typical harms that women suffer around the world include female genital mutilation, forced marriage, domestic violence, sexual violence (including as a weapon of war), so called “honor” crimes and killings, acid burnings, dowry deaths, widow rituals, human trafficking and pervasive gender segregation and oppression amounting to “gender apartheid”.[11] Amnesty International reports that “violence in the family is the most common form of gender-based violence experienced by women worldwide.”[12] Further, it is estimated that one in three women is subjected to physical violence by an intimate partner during their lifetime.[13]

Although women represent the majority of the world’s refugees and displaced people, international laws do not specifically provide for asylum based on gender related persecution.[14] Consequently, despite the fact that women comprise the majority of refugees, they are a minority in terms of those whose claims for asylum are successful.[15]

In a report by Amnesty International attention is called on the fact that torture of women is a phenomenon which occurs on a daily basis and is deeply rooted in pervasive discrimination that still denies women full equality with the opposite gender.[16] Yet, claims like rape, domestic violence and other forms of violence on women, are generally considered private rather than public matters, even in the instances when they are perpetrated by a government agent or occur during a political conflict.[17]

A. Maria’s Story

Maria[18] is a 41 year old woman from Mexico, who has lived a life defined by persistent violence, resulting from mental and physical aggression inflicted upon her by her own husband all because: 1) She was not a virgin at the beginning of their relationship due to the rape and sexual abuse she sustained from her uncle; 2) She was in a marital relationship, where her husband believed that women, especially those not virgins at the beginning of a relationship, should occupy a subordinate position within the relationship; 3) Because of her status as a non-virgin she was considered to be the chattel of her persecutor, whom he could physically, sexually and mentally torment; and 4) Finally, Maria could not leave the relationship due to the control exerted upon her by her husband, her lack of resources, as well as the customs and traditions of her Mexican-Zapotec culture.

Sometime in 1999 Maria fled to the United States in order to escape her abusive husband. She had lived with him for 11 painful years during which time she sustained brutal beatings causing her to bleed on numerous occasions, a broken nose, permanent physical and emotional scars, involuntary abortion/miscarriage during the eighth month of her pregnancy, and threats to her life, all of which were done by her husband and abuser, a military official in Mexico.

Maria had eight children with her husband, seven of which survived to birth. Apart from the first pregnancy, she did not have any medical attention during the pregnancy or at the time of delivery. The reason for this, was that her husband would not allow anyone to see her private parts. This meant that Maria had to deliver on her own seven of her babies, cut their umbilical chord and eject her own placenta. On one occasion the baby was born with the umbilical chord wrapped around his neck which made it difficult for him to breathe and Maria had to act fast and save her child’s life. One a different occasion part of the placenta did not eject her body, and she suffered a serous infection from which she later recovered. Most of her pregnancies were unwanted, due to the ongoing physical, sexual and mental abuse she sustained and the inability to provide for them financially, however her husband forced himself upon her and made sure she was always pregnant.

On numerous occasions Maria tried to escape her husband’s reign of terror and abuse by going into hiding in various parts of Mexico. Unfortunately, each time her husband was able to track her down due to his government connections and take her back to his home. She is currently being represented by the Immigration Clinic at Barry University School of Law and has applied for Withholding of Deportation and Relief under the Convention Against Torture, because she has suffered past persecution and cannot be returned to Mexico.[19] Maria’s future remains uncertain because current United States immigration laws do not explicitly recognize gender oppression as a legitimate ground for asylum or withholding of deportation.[20]

Maria’s story is shared by many other refugee women from all over the world who come to the United States with the hope of seeking asylum after escaping the particular harms of gender persecution. It is unfortunate enough that many women throughout the world face unlimited forms of gender discrimination which impact their ability to advance their education and career. Women also suffer a form of discrimination and bias when it comes to being able to obtain asylum based on persecution which has been gender specific.

III. Development of Asylum Law and Refugee Definition

In 1938, there was the creation of the Intergovernmental Committee on Refugees, which was mainly concerned with aiding German and Austrian citizens to immigrate to other countries.[21] Specifically, it provided aid to “[p]ersons…who must emigrate on account of their political opinions, religious beliefs [or] racial origin.”[22]

Later the 1952 Geneva Convention relating to the Status of Refugees (hereinafter Refugee Convention) was enacted, and to this day it is the authoritative basis for most countries’ refugee and asylum practices.[23] The Refugee Convention defines a refugee as a person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence.”[24]

Evidently, gender is not a recognized ground for asylum under the Refugee Convention, and for this reason women who have suffered gender related violence have often tried to fit under any of the five protected categories, and most commonly under “a particular social group”.[25] While the lack of a gender specific ground of asylum within the Refugee Convention does not necessarily reflect a belief by the drafters that it is acceptable to harm women, it is probably indicative of the belief that such acts of violence against women do not rise to the level of persecution.[26]

Furthermore, such a definition of the term “refugee” probably originates from a somewhat male-centric notion that persecution is something that generally occurs in the public sphere and that acts in the private sphere, which has traditionally been the domain of women, are somehow of less concern.[27] Additionally, it is also important to recognize the historical background which gave rise to the Refugee Convention, which also gives light into the reasons for the absence of a gender specific ground of asylum in this international instrument.[28]

The United Nations Guidelines on the Protection of Refugee Women encourage “acceptance of the principle that women fearing persecution or severe discrimination on the basis of their gender should be considered a member of a social group for the purposes of determining refugee status.”[29] Furthermore, the UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) states that “discrimination against women shall mean any distinction, exclusion restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political economic, social, cultural, civil or any other field.”[30]

Recognizing the deficiency in the traditional United Nation guidance which required asylum to relate to one the five enumerated grounds, the United Nations High Commissioner for Refugees (UNHCR), issued Guidelines on International Protection.[31] The guidelines urge signatory nations to the Refugee Convention to implement a “gender-sensitive interpretation” of the five enumerated grounds, although they specify that gender alone is insufficient to qualify as a ground for protection.[32]

IV. United States Asylum Law

For an alien to be able to request asylum in the U.S., the alien must satisfy the definition of a refugee:

“any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well founded fear of persecution on account of race, religion, nationality membership in a particular social group, or political opinion.”[33]

Accordingly, an applicant asking for asylum in the U.S., has to satisfy each of the following elements in order to meet the statutory definition of a refugee: 1) the applicant must have a well founded fear of persecution; 2) the persecution feared must be “on account of race, religion, nationality, membership in a particular social group, or political opinion”; and 3) the applicant must be unable or unwilling to return to her country of nationality or to the country where she last resided because of past persecution or a well founded fear of future persecution. Additionally, even if an applicant meets the refugee definition, the immigration judge still has discretion to deny asylum.[34]

This definition of the “refugee” concept is similar to the Refugee Convention definition in that it enumerates the same five grounds for asylum, race, religion, nationality, membership in a particular social group, and political opinion. Similar to the Refugee Convention, U.S. law does not officially recognize gender as a codified basis for asylum, though gender-based asylum has been discussed in various guidelines.[35] For this reason, women seeking gender based asylum, often, do not have any other choice but to argue that their persecution is based on their membership in a particular social group, religion or political opinion.[36]

Out of the five enumerated grounds in the INA, “particular social group” is the least well-defined and understood. Judge Samuel Alito in Fatin v. INS stated:

“Both courts and commentators have struggled to define ‘particular social group’. In its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a ‘particular social group.’ Thus, the statutory language standing alone is not very instructive…Nor is there ay clear evidence of legislative intent.”[37]

The Board of Immigration Appeals (BIA), opened the path to recognition of gender-based asylum in the landmark case of Acosta, which held that in a claim of persecution on account of membership in a particular social group, the applicant must establish that she possesses a common, immutable characteristic shared with other members of the group, and that the characteristic is one which is either beyond the control of the individual members to change, or that is so fundamental to their identities or consciences that it should not be required to be changed.[38] Further, Matter of Acosta, was also the first BIA decision which recognized sex as the kind of common, immutable characteristic that may define a particular social group.[39]

In 1995, the Immigration ad Naturalization Service (INS), issued “Considerations for Asylum Officer Adjudicating Asylum Claims for Women”, which provided a summary of the gender-based asylum issues and international developments emerging at the time, as well as some practical guidance and standards for the adjudication officers, without, however, specifying asylum protection solely for gender based persecution.[40] The Guidelines specifically identify forms of persecution that are unique to women, such as rape, sexual abuse, and domestic violence.[41] In addition, the guidelines also affirm that US courts have concluded as a legal matter that gender can define a particular social group.[42]

Although these considerations draw attention to gender based asylum and they do recognize sex as a characteristic that can define a particular social group, unlike statutes or regulations, they are not mandatory guiding principles for Asylum Officers or Immigration Judges to follow. Thus, the considerations can only be used for their power of persuasion since they are not binding on Immigration Judges, which results in judges making ad hoc decisions which are not uniform across the country. Without clear and binding guidance on how to resolve the complex issues that asylum claims by women and girls have raised, the result is that of inconsistent and incoherent decision-making around the country, unfortunately in most cases preventing women and girls fleeing persecution from receiving the protection that they should be able to obtain in the U.S.

In 1996, in Matter of Kasinga, the BIA held that:

“female genital mutilation, which results in permanent disfiguration and poses a serious, potentially life-threatening complications, can be the basis for a claim of persecution. Young women who are members of the Tchamba-Kunsuntu Tribe of northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe and who oppose the practice, are recognized as members of a “particular social group” within the definition of the term ‘refugee’.” [43]

This was the first case where the BIA granted asylum to a woman claiming gender based persecution on account of membership in a particular social group, thus paving the way for future gender-based asylum claims. Nonetheless, the BIA in this case granted asylum only on the basis of female genital mutilation (FGM). Thus, by narrowly defining the persecuted “social group”, the BIA did not leave much room for other women claiming asylum based on gender but on a different ground than FGM.[44]

Apart from the requirement of having a common, immutable characteristic derived from Matter of Acosta, the BIA has introduced two additional requirements for defining a particular social group: 1) Social Visibility, and 2) Particularity.[45] With regard to particularity, the BIA stated in Matter of S-E-G, that the issue is whether the social group is described with sufficient particularity or is “too amorphous…to create a benchmark for determining membership.”[46]

The BIA’s additional requirement of “social visibility” poses a significant obstacle to all gender based claims, but is particularly challenging for domestic violence based asylum cases where the abuse and even the victim herself may be purposely hidden by the abuse from the public eye.[47] Furthermore, requiring a particular social group which is persecuted to be socially visible is not logical since “if you are a member of a group that has been targeted for assassination or torture or some other mode of persecution, you will take pains to avoid being social visible.”[48]

Additionally, the Proposed Department of Justice Regulations drafted in 2000, if adopted, would establish a broad analytical framework for the consideration of asylum claims based on membership in a particular social group that recognized that victims of domestic violence may, under certain circumstances, qualify for asylum.[49] Since then, ten years have gone by and unfortunately these proposed regulations have not been finalized and are thus not binding on Asylum Officers or Immigration Judges.[50] Failure of the proposed regulations to be codified into law has resulted in more inconsistent decisions as Immigration Judges struggle when evaluating and making decision on gender-based asylum claims.[51]

A domestic violence case which drew a considerable amount of attention, was Mater of R-A,in which Rody Alvarado Pena from Guatemala applied for asylum in the United States after Guatemalan police refused to take action against her husband who had brutally abused her for over ten years.[52] The Immigration Judge granted Ms. Alvarado asylum, however the BIA reversed the decision following an appeal by the Immigration Service, based on the belief that domestic abuse did not count as a legitimate ground for asylum, since it was not on account of a political opinion and the persecution was not conducted by the government.[53]

In 2004, the Department of Homeland Security submitted a brief recommending that Ms. Alvarado be granted asylum, because she had appropriately defined a particular social group and demonstrated persecution which entitled her to asylum.[54] After Matter of R-A-, the BIA has denied asylum to at least five other women arguing domestic violence issues, where the applicants came from the Democratic Republic of Congo, Guatemala, Mexico (two cases), and Peru.[55]

Despite the fact that the International Human Rights Convention and the Department of Homeland Security recognize gender-related violence as a human rights violation, most asylum adjudicators in the U.S. and Immigration Judges apply a limited interpretation of the international definition of a refugee entitled to protection. For this reason, often women claiming asylum based on a gender related grounds, in particular domestic violence, are often denied the necessary protection in the U.S.[56]

While the Center for Gender and Refugee Studies has documented more than three-hundred cases involving asylum based on gender persecution, many of these cases have been unsuccessful, demonstrating that gender based persecution is yet to be recognized as a valid ground for asylum.[57] Despite the existence of gender-based persecution, within the existing legal infrastructure, women may be granted asylum only if their claims are based in a category of a particular social group and political opinions (based on feminist views).[58]

An additional barrier that women claiming asylum face is when the persecution has been done by family members, such as a husband, and they must demonstrate that their native country cannot or will not protect them form their family.[59] The reason why this burden is difficult for these women to meet is that although the country of origin might have outlawed the practice of FGM for example or it punishes domestic violence, it’s hard for these women to prove that “in actuality, the law is not enforced.”[60] Moreover, there is the additional burden of demonstrating country wide persecution , and when the persecutor is a family member, such burden is very hard for the women to overcome.[61]

It appears that the new administration in Washington D.C. has taken a different approach and “has opened the way for foreign women who are victims of severe domestic beatings and sexual abuse to receive asylum in the US.”[62] The United States Government submitted a brief in Matter of L-R,which appears to introduce a new openness to allowing asylum for foreign victims of domestic abuse.[63] The policy laid out in the brief may unable victims of domestic violence to gain Asylum in the US by recognizing victims of domestic abuse in a particular country as a viable social group for purposes of the UN “membership in a particular social group” asylum category.[64] The position taken by DHS in this case was one of seeking justice and not merely deportation, and it would certainly be very advantageous for women who have suffered domestic violence if DHS were to take the same position in future similar cases.

V. Asylum Jurisprudence in Foreign Jurisdictions

Unlike the United States, other western countries have approached gender based asylum in a different manner, and currently provide more protection to women claiming gender based persecution. This section will review the approaches that the European Union, Canada and the United Kingdom have adopted in terms of dealing with gender based asylum.

A. The European Union

The European parliament in 1984, was one of the first entities to pass a resolution promoting the possibility of defining women who defy social, religious or cultural norms as a “particular social group.”[65] Two decades later, the European Council, undertook another directive, which outlined asylum law standards by defining “acts of persecution” to include “acts of a gender-specific…nature.”[66]

The Canadian Guidelines

Similar to the INA, Canada’s Immigration Act provides that a refugee is any person who “by reason of a well founded fear of persecution for reasons of race religion, nationality, membership in a particular social group or political opinion…”[67] Thus, even in the case of Canada gender is not one of the grounds under which persecution can be based.

However, in 1993, Canada was the first country from all the signatories to the Refugee Convention, to issue guidelines which would recognize gender persecution.[68] The Canadian guidelines provide that:

“women who fear persecution resulting form certain circumstances of severe discrimination on grounds of gender or acts of violence…(i.e. domestic violence and situations of civil war)…[or] as the consequence of failing to conform to, or for transgressing, certain gender-discriminating religious or customary laws and practices in their country of origin. (i.e. arranged marriage, wearing of make-up, visibility or length of hair, or type of clothing a woman chooses to wear).”[69]

The purpose of the Canadian Guidelines is to instruct adjudicators in how to accommodate the claims of women who have been persecuted based on their gender, such as those persecuted because they have transgressed the social or religious mores of their native countries. Overall they represent an important development in dealing with gender persecution in refugee law, and should perhaps provide motivation for other countries to follow a similar policy.

In the same year as the issuance of the Canadian Guidelines, the case of Ward v. Canada was decided, where the Supreme Court of Canada held that gender could form the basis of a “particular social group” category because gender is a group “defined by an innate or unchangeable characteristic.”[70]

One of the main points that opponents of gender-based asylum put forward in their argument that gender based persecution should not be a ground for asylum, is that it would opening the doors to such claims would result in an overwhelming number of applications which would ultimately overburden the U.S. immigration system.[71] As to these concerns, the Canadian experience indicates that such a problem has not been the case in their experience. Canadian authorities have reported that in Canada the number of asylum applications by women claiming to be escaping gender related persecution in their home countries has not increased.[72]

United Kingdom

In Islam v. Secretary of State for the Home Department, the British court held that gender could form part of the “particular social group.”[73] However the judges in this case were confused whether the particular social group should be defined as “Pakistani Women” or “Pakistani Women Accused of Adultery”, which makes it somewhat unclear whether gender alone can constitute a particular social group or whether gender must be combined with some other element to form a particular social group.[74]

Similar to Canada, in 2000, U.K’s Immigration Appellate Authority issued guidelines describing when gender based persecution constitutes a grounds for asylum under of the five enumerated Convention bases.[75] The U.K. Guidelines recognize that while the protection offered by the Protocol on the Status of Refugees applies to both men and women, “the dominant conception of the refugee in western jurisprudence has been of a man and today” women may not benefit equitably from its protections.”[76] These Guidelines were amended in 2006.[77]

VI. Conclusions and Recommendations

Critics have called the United State’s continuing hold-up on the issuance of gender asylum regulation “an egregious example of public foot-dragging and bureaucratic inefficiency in immigration rule-making.”[78] The DHS brief filed in April 2009 in the domestic-violence based asylum case, Matter of L-R-, has been considered to be the announcement of a “new policy” which permits asylum for women based on gender and in particular domestic violence.[79] However, until additional ultimate action in the form of legislation, or Department of Justice or Department of Homeland Security regulations to affirm and clarify the scope of protection available to those fleeing all forms of gender based persecution, women and girls will continue to find themselves without protection as they seek relief in the United States.

For this reason, many critics have persuasively argued that gender must be added as an explicitly and independently enumerated ground on which a persecution claim may be based by refugee applicants.[80] Adding gender as a refugee category is a moral and political imperative.[81] Such legislative action, would result in uniformity and would avoid the inequities that can often result from an inconsistent application of the law, as has been the case until now.

Nevertheless, carefully understanding the current political situation in the United States and being realistic about the chances of amending the INA and the refugee definition in order to add a sixth ground, gender, one can easily come to the conclusion that such an amendment to the INA will not be easy if not almost entirely impossible. Although, amendment of asylum law to include gender within the refugee definition is probably the best manner to offer full protection to women and girls fleeing gender based persecution, it might not be a realistic one.

U.S. case law, in Matter of Acosta and Fatin v. INS, has already recognized gender as the kind of common, immutable characteristic which can form a particular social group. David L. Neal argues that women comprise a distinct social group and therefore should be granted asylum from gender-based oppression on the grounds that it constitutes persecution on account of social group affiliation.[82]

While amending the INA would be the ideal solution for this issue, the more realistic and readily achievable solution would be to enact binding regulations on Asylum Officers and Immigration Judges, which firmly recognize gender as a characteristic defining a particular social group. In addition, the regulations should also specifically recognize and identify forms of persecution that are unique to women, such as rape, sexual abuse, domestic violence, similar to what the 1995 INS Gender Guidelines do.

The time has come to put an end to the millions of women who have perished as a result of gender based persecution, and to help the hundreds of other women who seek protection in the U.S. due to persecution that they have suffered on account of their gender. The international community at large and specifically the U.S., have the capability of providing relief for those women who possess the courage to either rebel against the social mores of their native countries or to leave their domestic abusers by seeking gender-based asylum in the U.S. Other nations have acted more rapidly in beginning to address the issue of gender-based persecution by recognizing the asylum claims of victims of such abuse. Time has come for the U.S. to do the same, and thus gain a leadership role in offering protection to women and girls fleeing form inequality, physical and sexual abuse inflicted on account of their gender.

[1]Todd Stewart Schen, A proposal to Improve the Treatment of Women in Asylum Law: Adding a ‘Gender’ Category to the International Definition of ‘Refugee, 2 Ind. J. Global Legal Stud. 301 (1994).

[2] Andrea Binder, Gender and the ‘Membership in a Particular Social Group’ Category of the 1951 refugee Convention, 10 Colum. J. Gender & L. 167, 167 (2001). (Hereinafter, “Gender and the ‘Membership in a Particular Social Group’”).

[3] Guidelines on International Protection: 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, (hereinafter UNHCR Guidelines), U.N. Doc. HCR/GIP/02/02 (May 7, 2002). (Available athttps://www.pards.org/UNHCR%20Guidelines%20on%20International%20Protection%20Gender%20Related%20Persecution%20(May%207,%202002)%20(PDF,%2099.1KB).pdf).

[4] Id.

[5] See supra note 2, “Gender and the “Membership in a Particular Social Group.”

[6] Amnesty International, Women’s Rights, available athttps://www.amnestyusa.org/violence-against-women/stop-violence-against-women-svaw/womens-rights/page.do?id=1108231 (last visited March 26, 2010). (Hereinafter, Amnesty International, Women’s Rights).

[7] Irena Lieberman, Women and Girls Facing Gender-Based Violence and Asylum Jurisprudence. available athttps://www.abanet.org/irr/hr/summer02/lieberman.html.

[8] Id.

[9] Id.

[10] Affidavit of professor Nancy K. D. Lemon, provided by the University of Hastings Center for Gender and Refugee Studies.

[11] SeeTahirih Justice Center, Precarious Protection: How Unsettled Policy and Current Laws Harm Women and Girls Fleeing from Persecution, available athttps://www.tahirih.org/site/wp-content/uploads/2009/10/tahirihreport_precariousprotection.pdf.

[12] Amnesty International Reports, Women’s Struggle for Justice and Safety, Violence in the Family in Mexico, available athttps://www.amnesty.org/en/library/asset/AMR41/021/2008/en/4d96a226-5194-11dd-ad62-d31ddb019522/amr410212008eng.pdf.

[13] Id.

[14] See supra note 6, Amnesty International, Women’s Rights.

[15]Anjana Bahl, Home Is Where the Brute Lives: Asylum Law and Gender Based Claims of Persecution, Cardozo Women’s Law Journal 4, 34 (1997).

[16] See Amnesty International, Broken Bodies, Shattered Minds—The Torture of Women Worldwide (Mar. 6, 2001), available athttps://www.amnesty.org/en/library/asset/ACT40/001/2001/en/b68fe481-dc5f-11dd-bce7-11be3666d687/act400012001en.pdf (last visited March 26, 2010).

[17] Nancy Kelly, Gender-Related Persecution: Assessing the Asylum Claims of Women, 26 Cornell Int’l L.J. 625, 628 (1993).

[18] Maria is a real client represented by the Immigration Clinic at Barry University School of Law; the name “Maria” is a fictitious name, used instead of the client’s real name in order to protect her privacy.

[19] Due to a previous order of deportation, she is ineligible to apply for asylum.

[20] On April 13, 2010 Maria was granted withholding of removal because the judge found that she had suffered past persecution on account of her membership in a particular social group, defined as “Mexican Zapotec women, who by virtue of not being virgins at the time of marriage are labeled as damaged chattel, and are unable to leave the marriage where they are treated as property”. The judge did remark that he had some issue with the formulation of the particular social group and the nexus, but he stated that was going to be a matter for some other case, and granted the relief sought by Maria.

[21]Daniel J Steinbock, Interpreting the Refugee Definition, 45 UCLA L. REV. 733, 806 (1998).

[22] Id.

[23] See generally, Convention Relating to Status of Refugees, July 28, 1951, 19 U.S.T. 6223, 189 U.N.T.S. 150. (Hereinafter Refugee Convention).

[24] Id. at art 1(A)(2).

[25] David L. Neal, Women As a Social Group: Recognizing Sex-Based Persecution as ground for Asylum, 20 Colum. Hum. Rts. L.Rev. 203, 227028 (1988)

[26] Crystal Doyle, Isn’t ‘Persecution’ Enough? Redefining the Refugee Definition to Provide Greater Asylum Protection to Victims of Gender-Based Persecution, 15 Wash. & Lee J. Civil Rts. & Soc. Just. 519, 530 (2009).

[27] Connie Oxford, Protectors and Victims in the Gender Regime of Asylum, 17(3) N.W.S.A.J. 18, 30 (Fall 2005).

[28] Id.

[29] United Nations Guidelines on the Protection of refugee Women, available athttps://cgrs.uchastings.edu/documents/legal/gender_guidelines/UNHCR_Guidelines_Protection_Refugee_Women.pdf.

[30] United Nations, Convention on the Elimination of Al Form of Discrimination Against Women, available at https://www.un.org/womenwatch/daw/cedaw/cedaw.htm.

[31] Guidelines on International Protection: 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, (hereinafter UNHCR Guidelines), U.N. Doc. HCR/GIP/02/02 (May 7, 2002). (Available athttps://www.pards.org/UNHCR%20Guidelines%20on%20International%20Protection%20Gender%20Related%20Persecution%20(May%207,%202002)%20(PDF,%2099.1KB).pdf).

[32] Id.

[33] 8 U.S.C. § 1101(a)(43)(2000).

[34] See 8 U.S.C. § 1101(a)(42) (2000).

[35] Crystal Doyle, Isn’t ‘Persecution’ Enough? Redefining the Refugee Definition to Provide Greater Asylum Protection to Victims of Gender-Based Persecution, 15 Wash. & Lee J. Civil Rts. & Soc. Just. 519, 536 (2009).

[36]See Fatin v. INS, 12 F.3d 1233, 1242 (3d Cir. 1993) (recognizing feminism as a political opinion); Matter of Kasinga, Int. Dec. #3278 BIA 1996 (involving a Togolese woman who fled female genital mutilation), and Matter of S-A-, Int. Dec. #3433, BIA 2000 (involving a Moroccan woman whose father abused her for violating strict Islamic rules governing women’s behavior and dress).

[37]Fatin v INS, 12 F.3d 1233, 1238-39 (3d Cir. 1993).

[38] See Matter of Acosta, 19 I&N Dec. 211, 237 (BIA 1985) (holding that respondent has not shows he is eligible either for asylum or withholding of deportation to El Salvador).

[39] Id.

[40] Memorandum from Phyllis Coven, Office of International Affairs, U.S. Dept. of Justice to All INS Asylum Officers RE Considerations for Asylum Officers Adjudicating Asylum Claims for Women 13 (May 26, 1995).

[41] Id.

[42] Id.

[43] Matter of Kasinga, 21 I.&N. Dec. 365 (BIA 1996).

[44] See Crystal Doyle, Isn’t ‘Persecution’ Enough? Redefining the Refugee Definition to Provide Greater Asylum Protection to Victims of Gender-Based Persecution, 15 Wash. & Lee J. Civil Rts. & Soc. Just. 519, 539 (2009).

[45] See Matter of C-A-, 23 I. & N. Dec. 951, 957-960 (BIA 2006) (in which the BIA held that the claimed social group—former informants against the Cali drug cartel—was not ―socially visible and was ―too loosely defined to meet the requirement of particularity); Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 76 (BIA 2007) (group of affluent Guatemalans lacked social visibility and was not sufficiently particular, since wealthy and affluent were too amorphous); Matter of S-E-G-, 24 I. & N. Dec. 579, 582-83 (B.I.A. 2008) (Salvadoran youths who have resisted gang recruitment and family members of such Salvadoran youth” do not satisfy the social visibility test and do not constitute a particular social group).

[46] Matter of S-E-G-, 24 I. & N. Dec. 579, 584 (BIA 2008).

[47] See Fatma E. Marouf, The Emerging Importance of “Social Visibility” in Defining a “Particular Social Group” and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender, 27 Yale L. & Pol’y Rev. 47, 94-98 (Fall 2008).

[48] Gatimi v. Holder, No. 08-3197 (7th Cir. August 20, 2009) (Posner, J.), at 8.

[49] Asylum & Withholding Regulation, 65 Fe Reg. 76, 588 (Dec. 7, 2000) (to be codified at 8 C.F.R. pt. 208).

[50]Crystal Doyle, Isn’t ‘Persecution’ Enough? Redefining the Refugee Definition to Provide Greater Asylum Protection to Victims of Gender-Based Persecution, 15 Wash. & Lee J. Civil Rts. & Soc. Just. 519, 541 (2009).

[51] Irena Lieberman, Women and Girls Facing Gender-Based Violence and Asylum Jurisprudence, available athttps://www.abanet.org/irr/hr/summer02/lieberman.html).

[52] Matter of R-A-, 22 I. & N. Dec. 906 (1999), vacated by Attorney General Reno (2001).

[53] See id. at 920 (“On the record before us, we find that the respondent has not adequately established that we should recognize, under our law, the particular social group identified by the Immigration Judge.”)

[54] Department of Homeland Security Position on Respondent’s Eligibility for Relief, available at https://cgrs.uchastings.edu/documents/legal/dhs_brief_ra.pdf.

[55]Karen Musalo and Stephen Knight, Gender Based Asylum: An Analysis of Recent Trends, 77 Interpreter Releases 1533 (October 30, 2000), available at: https://cgrs.uchastings.edu/documents/media/ir_10-00.pdf.

[56] SeeTahirih Justice Center, Precarious Protection: How Unsettled Policy and Current Laws Harm Women and Girls Fleeing from Persecution, available athttps://www.tahirih.org/site/wp-content/uploads/2009/10/tahirihreport_precariousprotection.pdf.

[57] See, Center for Gender & Refugee Studies, Summaries of Gender Asylum Cases, available athttps://cgrs.uchastings.edu/law/list.php (last visited March 28, 2010).

[58]Anjana Bahl, Home Is Where the Brute Lives: Asylum Law and Gender Based Claims of Persecution, Cardozo Women’s Law Journal 4, 34 (1997).

[59] Irena Lieberman, Women and Girls Facing Gender-Based Violence and Asylum Jurisprudence, available at https://www.abanet.org/irr/hr/summer02/lieberman.html).

[60] Id.

[61] Id.

[62] Julia Preston, “New Policy Permits Asylum for Battered Women,” The New York Times (15 July 2009). available athttps://www.nytimes.com/2009/07/16/us/16asylum.html?_r=1, (last accessed March 30, 2010).

[63] Id.

[64] Id.

[65] Resolution of the European Parliament, O.J. 1984 C127/137.

[66] Directive of the European Council, 2004/83/EC (delineating asylum law standards for Europe).

[67] Immigration Act, R.S.C., ch. I-2, § 2 (1985) (Can.).

[68]Canadian Immigration & Refugee Bd., Women refugee Claimants Fearing Gender-Related Persecution (Guidelines issued by the Chairperson of the Board in accordance with subsection 65(c) of the Immigration act) (1993).

[69] Id.

[70] See 2 S.C.R. 689 (1993) (providing background on Canada’s approach to gender-based persecution claims).

[71]Dan Stein, “Political Asylum Should Not Be Turned Into Social Asylum”, Bloomsburg Press-Enterprise, May 6, 2001. (Available athttps://www.fairus.org/site/PageServer?pagename=research_researcha391)

[72] Id.

[73] A.C. 629 (1999). The case was about two Pakistani women who had “suffered violence in their country o origin after their husbands had falsely accused them of adultery” and had applied for asylum in the U.K. for fear of receiving physical and emotional abuse if they returned. Id at 629. The Home Office denied the applicants “on the ground that the applicants were not members of a ‘particular social group’ within the meaning of Article IA(2) of the Convention and Protocol relating to the Status of Refugees.” Id. at 630. The court held that a “particular social group” had to exist independently of the persecution so that the persecution alone could not be relied on to prove the group’s existence, but that cohesiveness was not an essential requirement.” Id. Further, “because in Pakistan women were discriminated against as a group in matters of fundamental human rights, and the state gave them no protection…women in Pakistan constituted a ‘particular social group’ which was more narrowly defined by unifying characteristics of gender, of being suspected of adultery and of lacking protection from the state and public authorities.” Id. Thus, the applicant’s “well founded fear of persecution which was sanctioned or tolerated by the state was for reasons of membership of a particular social group; and that, accordingly, they were entitled to asylum under the Convention.” Id.

[74] Id. at 629.

[75]Nathalia Berkowitz & Catriona Jarvis, Immigration Appellate Authority, Asylum Gender Guidelines (2005), available athttps://cgrs.uchastings.edu/documents/legal/gender_guidelines/UK_guidelines.pdf.

[76] Id.

[77]U.K Border AG., Gender Issues in the Asylum Claim (2006), available at https://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/genderissueintheasylum.pdf?view=Binary.

[78] William Fisher, Abused Woman Waits 12 Years for Asylum, Inter-Press News Agency, October 14, 2008.

[79] See Julia Preston, New Policy Permits Asylum for Battered Women, The New York Times, July 16, 2009 (asserting that DHS‘ legal brief ―opened the way for foreign women who are victims of severe domestic beatings and sexual abuse to receive asylum in the United States‖ and calling it an Obama Administration ―action [that] reverses a Bush [A]dministration stance in a protracted and passionate legal battle over the possibilities for battered women to become refugees‖).

[80] See, e.g. Mattie Stevens, Recognizing Gender-Specific Persecution: A proposal to Add Gender as a Sixth Refugee Category, 3 CORNELL J.L. & PUB POL’Y 1`79 (1993).

[81] Id.

[82] David L. Neal, Women As a Social Group: Recognizing Sex-Based Persecution as ground for Asylum, 20 Colum. Hum. Rts. L.Rev. 203, 227028 (1988)