Birdsong's Law Blog

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

Virginia Ponder, a student in Professor Birdsong’s spring Refugee Law seminar, has written an excellent paper that examines whether a parent who opposes female genital mutilation, and fears the mutilation of her child, raises a valid claim for protection under U.S. asylum law?  The circuit court responses thus far have been diverse.  Ms. Ponder has given permission to post her paper on the blog.  Read it and see what you think.

THE DILEMMA OF PARENT-CHILD

FEMALE GENITAL MUTILATION JURISPRUDENCE

Virginia L. Ponder

 God has blessed me.  He made me suffer but He also blessed me. 

I am safe and free in America, surrounded by people who love me. 

Others are not so fortunate.  They are being held in prisons, being

denied asylum, and being sent back to terrible forms of suffering. 

My friends, all the friends I made in prison, cried for joy for me

the day I walked into freedom.  [1]                                                                                                                                                       I.            Introduction

Almost fourteen years ago in the landmark decision In re Kasinga[2], the Board of Immigration Appeals, the highest administrative authority interpreting asylum law, found Female Genital Mutilation[3] (FGM) to be a form of persecution warranting a finding of asylum.  Kasinga’s claim was based on the risk she would be subjected to FGM if returned to her home country and the decision established basic doctrine favorable to such a claim.[4]  It was a milestone in the consideration of gender related asylum cases and advanced protection for women who fear FGM.  Currently a new question regarding FGM is circulating in our immigration courts.  Does a parent who opposes FGM, and fears the mutilation of her child, raise a valid claim for protection under U.S. asylum law?  The circuit court responses thus far have been diverse. 

The “parent-child FGM issue” most commonly presents itself when a non-US citizen parent asserts asylum, withholding of removal, or protection under Convention Against Torture [5](CAT) because she fears her US citizen or resident daughter will

Last spring Amrita Lamba wrote an outstanding Refugee and Asylum Law Seminar paper concerning the necessity for gender related asylum claims that will protect women and girls from sexual gender based violence.  She has given permission to publish her paper here on the blog.  It is very well written.  Take a look and learn.

Don’t Hate Me Because I’m Female:

The Necessity for Gender Related Asylum Provisions

 Protecting Women and Girls From

Sexual Gender Based Violence

 By: Amrita K. Lamba

I.      Introduction

            Kahindo is twenty-eight years old and the mother of six children.  One day, almost four years ago, Kahnido and her children ran into a group of men in the unstable province of North Kivu, not far from her village in the eastern Democractic Republic of the Congo (“DRC”).[1]  Kahindo’s reaction upon seeing the men was a “sigh of relief,” she thought now her children and herself “were not going to run anymore.”[2]  However, a few seconds after encountering the group of men, Kahindo’s realized her initial reaction was quite wrong.[3] Six armed men separated Kahnido away from her children and she was raped by them one after the other until she went into a coma.[4]  She was left to die by the men.[5]  If you speak to Kahindo today, she will tell you that she wishes she had died.[6]  

Still after hearing Kahindo’s story, one must think how lucky she is to still be alive.  However, Kahindo thinks otherwise.  During her recovery process she learned that she contracted HIV.[7]  Furthermore, she has had to endure the stigma of being a rape victim.[8]  Kahindo believes the men raped her as punishment – they wanted to degrade her family, dignity, culture, and everything she stands for.[9] 

Kahindo is not the only victim of such violent acts.  According to estimated figures by the United Nations (UN), close to 3,500 females were raped in eastern DRC

Paula Bird was a student in Professor’s Birdsong Refugee and Asylum course in the Spring of 2010.  She has written a very fine seminar paper outlining many of the problems concerned with victims of human trafficking, including women who are trafficked as sex slaves to the United States.  Her paper is aimed at examining the difficulties victims of human trafficking face and proposing a solution to assist victims in overcoming those hurdles.   She has given her permission to publish her paper to a wider world of people who might wish to learn of this phenomenon.  Read and Enjoy.

Asylum for Victims of Human Trafficking

By

Paula Bird

Introduction

In the early hours of dawn,[1] officers and agents from the Dallas Police Department and the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement burst through the doors of a Korean brothel, owned by Mi Na Malcolm.[2]  What they discovered in the confines of this Dallas building would shock and disturb most individuals’ confidence in the concept of the United States as the land of the free.[3]  As a result of the raid, forty-two women were found living in appalling conditions.[4]  Malcolm, the brothel owner, paid human traffickers to transport Korean women into the United States and then proceeded to force the women into prostitution to pay off their smuggling debts.[5]  To ensure her control over the women and guarantee that the smuggling debts would be paid, Malcolm forced the women into “slave-like conditions.”[6]

She seized their passports.[7]  They slept on carpets and floor mats.[8]  They were made to prostitute themselves six and seven days a week, during which they were on call for sex at all times of the day.[9]  It did not matter if they were sick, sore, and bleeding; they were still forced to work.[10]  It was not uncommon for the women to eat, sleep, and work in the same spaces. Many were charged extra for basic necessities such as lodging and clothing.[11]  All of their movements were monitored, either by an escort or video surveillance.[12]  The women were her slaves and she was their owner, master, and abuser.

Malcolm was sentenced to ten years imprisonment and ordered to pay a fine of

Birdsong provides herein analysis of two recent asylum cases, one involving gender

violence and, the other based on sexual orientation. Birdsong reminds students and practitioners alike that asylum cases are strongly “fact driven” and  they must present a good story.  Further, good lawyers must read the footnotes. Please read the footnotes included herein!    

            The United States continues to be a country which will accept and give asylum to those who flee persecution in their homelands even if that persecution is as a result of sexual orientation or gender based violence against women.  It is apparent that not all GLBT persons or abused women obtain asylum status, but from a human rights point of view we remain a safe haven where people of all sexual orientations can seek justice if they believe they have been persecuted. Yet, the lack of precedent and the discretionary power of IJ’s in asylum cases and the other aforementioned problems with adjudication make it difficult to readily predict how such cases may be decided before filing.  Practitioners who file claims for affirmative asylum or who represent claimants already in removal proceedings are best advised to work with the claimant to prepare an affidavit which recounts the claimant’s background and recounts in detail each instance of persecution encountered in the country of origin.  Attached to the affidavit should be as much documentary evidence as possible relevant to the claim of asylum and that will support the claimant’s position, such as newspaper articles, photographs, hospital reports and  any evidence one can discover on the country of origin conditions and how that country treats GLBT persons and women.