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 the first six months of 2009 alone by “soldiers, militiamen, and civilians.”[10]  These numbers show that the situation in the DRC is getting worse, as the total number of rape victims in 2008 was 4,800.[11]  Regardless, the true number of rape victims is actually higher, given that most rape victims are reluctant to come forward because of the consequences.[12]  In many countries, families and communities reject most women that survive rape because it is believed that they bring shame to their family.[13]  Forcibly displaced women living in areas with much conflict, like in the DRC, are particularly vulnerable to armed men who come to take advantage of the state of disarray in these villages.[14]  Today the DRC has “one of the highest rates of rape in the world.”[15]

             According to the United Nations High Commissioner for Refugees (UNHCR), almost half of those that are uprooted by conflict in their countries are female.[16]  The inequality between males and females and “discrimination on the basis of sex occurs during all stages of the displacement cycle,” making the effects of gender inequality greater.[17]  In addition many women are still abused even after they return to their home countries; the rights they gain as a refugee are not respected.[18] The story of Hadja, a 48-year-old woman originally from Somalia, is a perfect example of this type of discrimination.[19] 

Hadja was held by a militia group in Somalia for four years and “subjected to a lot of physical and mental violence,” she has scars across her body that serve as reminder of the brutality she had to endure.[20]  Militiamen in Somalia killed her husband, father, and eldest son.[21]  Hadja fled to Pakistan and now lives in Islamabad with one of her daughters.[22]  She ran in order to avoid being killed after refusing to marry her brother-in-law following her husband’s death.[23]  Her three other children still reside in Africa.[24]  However, the injustice of her situation is apparent by her means of survival.  Hadja supports herself based on an allowance of an estimated $52 USD provided to her by a local partner of the UNHCR called ‘Struggle for Change.’[25]  While, Hadja has a refugee card provided from the UNHCR, she has no right to work and no rights to permanent residency.[26]

What does the current world of human rights violations look like?  The most frequent depiction of a human rights victim is a male that has been tortured because of his race, nationality, and religious or political belief.[27]  So why are women not present in this depiction when they comprise over 19 million of the refugees in this world?[28]  The stories of Kahindo and Hadja above are just two examples of the women that encompass the millions of females that are subjected to sexual and gender based violence.   

According to the UNHCR, “women and children comprise more than eighty percent of the world-wide refuge population.”[29]  Additionally, over a majority of asylum claims that involve females are because of gender-based issues.[30]  While, many nations have globally recognized beating, burning, mental abuse, and rape against people as persecution, most governments are not quick to provide aid when the person facing this persecution is a female.[31]  When females are beaten, burned, abused, raped, or genitally mutilated it is often considered a household matter and not for the courts.[32]

Women are offered little remedies and there are no clear governing standards implemented by nations to provide them asylum protection.[33]  Nearly all nations extend “asylum protection in a manner that discriminates against women.”[34]  Because immigration guidelines are not gender sensitive, claims of female asylum applicants and male asylum applicants are extremely different.[35]  The main difference is the abuse females suffer; it is unique to their gender and can only be inflicted upon them.[36]  Also, females are targeted distinctively because of their gender.[37]  This type of abuse is best exemplified by the laws and codes the former Taliban regime directed specifically against women.[38]  All Afghan females were subject to “rape, forced marriage and forced prostitution and were punished by stoning, hanging, floggings and amputation of limbs,” if they did not submit themselves to these laws.[39]  Afghan males, on the other hand, had no similar codes pertaining to their gender.[40]

Females also face difficulties because many asylum laws have developed through a framework of male experiences, leading to the enactment of biased immigration laws.[41]  Most asylum cases are reviewed by male officers who dismiss gender related cases as “private and personal” matters.[42]  “Because it is mostly male [officers] who evaluate asylum claims, asylum law is centered on the male applicant, the male situation, and the male experience.”[43]  Furthermore the majority of asylum applicants who are able to travel to countries where they have the ability to seek out lawful residence are mostly male.[44] 

Interpretation of Immigration laws in the United States is a perfect example.  U.S. Immigration laws exclude asylum claims based solely on gender and requires membership in a “gender-plus” group.[45]  Asylum applicants have to use different means of arguing their petition for asylum since gender alone is insufficient.[46]  Therefore, when these cases are reviewed through this male perspective there is insensitivity to their experiences and the females are left without adequate protection from violence.[47]  For this reason, it is necessary to bring more awareness and sensitivity to the issues of gender – particularly in regards to women – when considering asylum applications.

Many different international organizations have grappled with the ability to define exactly what acts make up discrimination and violence against women.  Hence, section two of this article will begin by exploring the basics of sexual and gender related violence against women and how it is defined.  Consequently, the reasons why sexual and gender related violence is perpetrated against women will be explored.  This is an important aspect because many of the reasons why these acts are committed against women are due to norms in long standing cultural practices or traditions.  While some of these practices are engrained in certain cultures, they can cause lifelong harms.  Women living in these countries often have a little resources for protection from their own governments who refuse to get involved in what they consider ‘domestic cases.’  These reasons are the foundation of why they need to be able to apply for asylum based solely on gender issued.

Thereafter, section three of this article will focus on asylum provisions in the United States.  First the article will discuss how current asylum cases, involving gender related issues are being argued.  Due to the fact that gender is not an enumerated ground upon which asylum can be granted, many asylum cases are argued bases on a female’s membership in a particular social group.  However, using this creative approach to petition for asylum on gender related issues has caused Immigration courts to be inconsistent in their holdings.  Relief to females who have gender issues is arbitrarily given.  The decisions of some of these cases will be discussed.  

Section three will then end by delving deeper and proposing implementation methods for integrating gender related provisions into current U.S. immigration laws.  The integration of gender related provisions would help alleviate the problem of inconsistent grants of asylum.  It will also offer more protection to females who are openly persecuted by acts of sexual violence and gender-based violence.

  1. I.      What is Sexual and Gender Based Violence?
  2. A.    Defining Sexual and Violent Acts Against Women

Sexual violence, violence against women, and gender-based violence are all terms that refer to the same basic concept and can be used interchangeably.[48]  Sexual and violent acts against women,

“…refer to violations of fundamental human rights that perpetuate sex-stereotyped roles that deny human dignity and the self-determination of the individual and hamper human development.”[49] 

 ‘Gender-based violence’ is a term that allows for easy identification of violence that is targeted against persons based upon their gender.[50]  Additionally, sexual violence is considered a form of gender-based violence.[51]  Sexual violence “refers to any act, attempt or threat of a sexual nature that results, or is likely to result in physical, psychological and emotional harm.”[52]  While the majority of victims for sexual and gender based violence are women and girls, the UNHCR also recognizes in its definition that men and boys can also be victims.[53] 

The UNHCR has classified different types of sexual and gender based violence in its Sexual and Gender Based Violence Against Refugees, Returnees, and Internally Displaced Persons Guidelines for Prevention and Response’ (“SGVB Guidelines”).  The different types of violent acts include: sexual violence, physical violence, emotional and psychological violence, harmful traditional practices, and socio-economic violence.[54]

Article I of The Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) defines the term ‘discrimination against women’ as:

“…any distinction, exclusion or 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.”[55]

Combining Articles 1 and 2 of the UN General Assembly Declaration on the Elimination of Violence Against Women and Recommendation 19 of the 11th session of the CEDAW Committee, the UNHCR has implemented an expended definition of ‘Sexual and Gender-Based Violence’ stating:

“…gender-based violence is violence that is directed against a person on the basis of gender or sex. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty…While women, men, boys and girls can be victims of gender-based violence, women and girls are the main victims.[56]

Overall, sexual and gender based violence is a violation of basic human rights.  It stereotypes gender roles in order to deprive individuals of their dignity and stymies their development.[57]  The SGVB Guidelines show that sexual and violent acts against women can occur both in private and public spheres.[58]  The range of perpetrators for sexual and gender-based acts are vast, including at times a female’s own family members and community, and therefore the risk to females is even greater.  

  1. B.     Concerns and Reasons for Violence Against Women

Habitually sexual and gender-based violence is rooted in the attitudes of individuals that allow violence to occur in a family, community, and state context.  The types of identified perpetrators, as stated in the SGVB Guidelines, include: parents, family members, members of the community, entire communities, religious groups, organizations, society institutions, government actors, and states.[59]

The causes for sexual and gender-based acts can be based on individual risk, social norms, cultural practices, inadequate legal frameworks or practices, war and armed conflict, and internally displaced persons.[60] 

Individual risks for females arise out of feelings of insecurity, dependence, psychological trauma, stress of conflict, and disrupted roles within their family.[61]  Most often, these females also have little knowledge of their individual rights and the laws.[62]  On the other hand, even if they do know what rights they are entitled to, they may not have legal avenues available. 

Many times applicants for asylum come from countries that have inadequate legal frameworks.  A country’s legal framework can provide inadequate protections to females in their country of origin or host country when there is a: lack of trust in the law enforcement authorities, lack of advocacy condemning sexual and gender based violence, discriminatory practices in justice administration, and low numbers of prosecutions in ratio to reported cases.[63]  When a country’s framework does not allow for protection of females, they are in turn also more likely to be victims of violent acts.[64]

War and armed conflict increases risk of violence against women because there is a breakdown of social structures, a need to discriminate based on socio-economic factors, ethnic differences, and exertion of political power over minority groups.[65]  Sometimes women are abused sexually in exchange for resources for their family.[66]  They can even be deliberately abused or raped if there is no longer the presence of a male figure in the family or to bring shame to their family.[67]

Internally displaced persons are often at risk because of collapses in social or family support structures.[68]  Their location and environment are all factors that make them bigger targets to rebels, armed forces, and guerilla groups.  Lack of police protection or NGO presence, predominantly male leadership, over-crowded camps and multi-household dwellings, and a lack of individual registration and identity cards are common characteristics for internally displaced persons.[69]  These factors also offer little safety for residents and bring more risk to females in particular.[70]  Furthermore, because refugees are considered ‘materially privileged’ and have access to more resources than others.  This also makes them bigger targets for violent acts because of their special status.[71] 

  1. C.    International Conventions Addressing Women’s Rights

Women have consequently been denied asylum because of their harms being thought of as personal family matters and not relevant to the jurisdiction of immigration laws.[72]  However the “international reconceptualization of human rights and refugee law as inclusive of women’s human rights issues, impacted the development of gender-based asylum jurisprudence.”[73]  The following international conventions have specifically worked towards providing attention to women and girls who are the victims of sexual and gender-based acts.

                                                  i.      Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

The UN General Assembly adopted CEDAW in 1979; the U.S. is a party to the convention but has not ratified the convention.[74]  By accepting this convention, States are pledging their commitment in enacting methods to prevent discrimination against women including:

“…to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women; to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and to ensure elimination of all acts of discrimination against women by persons, organizations or enterprises.”[75] 

 The CEDAW is the only human rights convention that asserts the reproductive rights of females.  CEDAW is also the only convention that holds cultures and traditions as culpable and influential in shaping gender roles and the relationships of females in family units.[76]

                                                ii.      United Nations Declaration on the Elimination of Violence Against Women

In December of 1993 the United Nations General Assembly adopted the Declaration on the Elimination of Violence Against Women and recognized the rights of women as fundamental to the human rights issue.[77]  In enacting this declaration, the general assembly recognized that violent acts against females are as a manifestation of the “unequal power relations between men and women, which have led to domination over and discrimination of women.”[78]  The first few articles define what constitutes violence against women and outlines the rights of women.[79]

The convention was a big step in the rights of females because many of the violations against women are on a private level.  The Convention makes state parties responsible in enacting real measures.  These measures should bring about both actual and legal equalities of females and males to ensure that no discrimination will occur.  Article IV of the Convention further outlines the responsibility of state parties.  Article IV declares that state parties:

 “…should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.  States should pursue by all appropriate means and without delay a policy of eliminating violence against women…”[80]


Thus, not only does the Convention give states a duty to protect, it will also not allow states to use cultural practices and long standing traditions as an excuse to prevent aid.

                                              iii.      Rome Statue of the International Criminal Court

Per Article 5 of the 1998 Rome Statute, the International Criminal Court has jurisdiction over cases that involve genocide, crimes against humanity, war crimes, and the crime of aggression.[81]  The Rome Statute gave females another avenue for relief when it included many of the common sexual and gender-based acts as a crime against humanity.  Article 7 of the Rome Statute, specifically includes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, as crimes against humanity.[82]  Furthermore persecution against an identifiable group or collectivity based on gender is impermissible under international law.[83]  This will allow females to bring claims of sexual and gender-based violence to the International Criminal Court.  The United States is a signatory to the Rome Statute but has not yet ratified the statute.[84] 

                                              iv.      United States Violence Against Women Act (VAWA)

The Violence Against Women Act of 2000 (“VAWA”) changed immigration laws to allow “battered spouses” to self-petition for permanent residency with out needing support from their abusive husbands.[85]  Domestic violence victims could now use this as a waiver if they failed to observe statutory requirements for permanent residence.  VAWA also allowed more leniencies in statutory requirements for battered spouses in removal proceedings.[86]  While VAWA’s leniency for battered spouses was a step towards support for females in withholding and asylum cases, it has done little to females who apply for asylum based on domestic abuse outside of the U.S.

  1. II.      A Focus on Forgotten Victims in Asylum Cases
  2. A.    The Need for Gender Related Provisions in U.S. Asylum Cases

Females who fear abuse cannot claim refugee status if their home government is able and willing to provide protection. [87]  However females can use the assistance of International Conventions and seek other governments for protection and as an adequate solution to battle against their abuse.  Every government has the responsibility of protecting the human rights of individuals from States and from private individuals.  Governments also have the duty to prevent conduct that harms basic human rights of people.[88]

The United States is an example of one such government.  The U.S. derived its asylum law from international principles like most other nations.[89]  The U.S. has adopted the 1951 United Nations Convention Relating to the Status of Refugees and the subsequent 1967 Protocol Relating to the Status of Refugees.[90]  These Conventions outline the general principles of asylum law and were codified into the U.S.’ Immigration and Nationality Act of 1952 and the Refugee Act of 1980.[91]

Article I of The 1967 Protocol to the Convention Relating to the Status of Refugees, states that the…

“…term a ‘refugee’ shall apply to any person who…as a result of events occurring before 1 January 1951 and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group or political opinion.”[92] 


This Article was incorporated into U.S. Immigration law under INA §241(b)(3), which states:

“[The] Attorney General may not remove an alien to a country if the alien’s life or freedom would be threatened because of the alien’s race, religion, nationality, membership in a particular social group or political opinion.”[93]


Therefore, to qualify for asylum in the U.S. a person must first satisfy the definition of a refugee.[94]  The second step is to determine whether the fear an applicant claims equals persecution, and if the applicant has established ‘past’ persecution as well.[95]  Well-founded fear as been defined by the Supreme Court as:

“…the existence of a well founded fear of persecution with a clear probability that an asylum applicant may suffer from a likelihood of persecution in her homeland.”[96]

 Typically in asylum cases that involve claims based on sexual violence or discrimination against females, the biggest quandary is filing a petition that will be granted when ‘gender’ is not an enumerated upon which one can obtain relief.  Gender, or anything relating solely to gender is insufficient to obtain relief in the United States.  Since there is no gender related ground to petition for asylum, females applying for gender related reasons have to argue persecution as a member of a particular social group.[97]  In the U.S. when using membership in a particular social group as a ground of asylum, an applicant must:

“…identify with the social group, establish that she is a member of that group, and establish that her well-founded fear of persecution is based on her membership in the group.”[98] 

 The members of a particular social group do not have to known one another, and do not have to be cohesive.  However, they must share one innate characteristic that is unchangeable but common to all.  The actual fear of persecution is not a characteristic that has to be shared by every member of the group.[99] 

Using membership in a particular social group as the basis for asylum in cases involving sexual and gender-based violence has lead to sporadic grants of protection.  The decision of Immigration courts varies case-by-case and does not provide adequate protection to females.  Additionally, inconsistencies in interpretation in deciding asylum cases can be influenced by foreign policy goals.[100]  In particular, Congress has amended laws to allow asylum to those fleeing forced sterilization in China and leniency in asylum towards individuals from Cuba, Nicaragua, and Eastern Europe.[101]

  1. B.     Asylum Decisions in U.S. Immigration Courts

As stated above, because Immigration courts have consistently decided asylum petitiosn on a case-by-case basis and not a clear set forth standard, inconsistent decisions are therefore common.  Some of these decisions by the Immigration Cout will now be highlighted.

In 1991 the Second Circuit Court of Appeals in Gomez v. INS[102] held that gender persecution did not meet the ‘on account of particular social group’ ground for asylum.[103]  Ms. Gomez fled El Salvador when she was eighteen years old after being subjected to violence and abuse from guerilla forces.[104]  During the period of her attacks, Ms. Gomez was twelve years old and had been raped and beaten five separate times by the same guerilla forces.  After raping and beating her, the guerilla forces would vandalize her home and threaten to kill her.[105]  However, despite the atrocities committed against her, the court held her claim did not sufficiently satisfy the grounds of ‘membership in a particular social group’ because there was no evidence that abuse by the guerilla forces was done on factors other than gender and youth, her claim was denied.[106]

This is unlike the In re Kasigna[107] case decided in 1996.  The court at this time decided that the practice of FGM could justify a grant of asylum.[108]  Furthermore, the court held that,

“…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…” is a sufficient social group to satisfy a claim of asylum.[109]

The court allowed this claim based on the applicant’s membership in the particular social group defined above.

The Kasinga decision was seen as a stepping-stone towards laws that would allow better interpretation of gender based asylum applications.[110]  The court for the first time created an opportunity to allow asylum claims based on gender.  However, even after the court granted asylum on the gender related harm of FGM, the decision did not provide enough sustainability for following cases.[111]  “The extent to which Kasinga would affect adjudication of asylum claims based on other forms of gender-specific persecution,” remained unclear.[112]  While initially the case was deemed as a ‘high point,’ it only paved the way for more inconsistent asylum decisions.[113]  Since the passing of this case, the court afterwards only granted asylum to one female whose claim was based on her fear of FGM.[114]

In 2000, the Immigration Court again allowed asylum claims based on gender related grounds.  The court in In re S-A-[115] held that S-A-, a Moroccan woman who was abused physically and emotionally by her father for not conforming to his idea of a Muslim woman, was eligible for asylum.[116]  S-A- was repeatedly beaten, burned, verbally abused, and prohibited from school and activities outside of her house by her father.[117]  There was also evidence that even if she had turned to authorities for assistance, they would have been unwilling to interfere with her relationship with her father.[118]  The court granted her asylum on the basis of her religious beliefs being different from her father’s orthodox Muslim beliefs regarding women.[119]

In 2001, the courts returned to their previous standpoint to exclude gender in asylum cases.  In the case of In re R-A-[120] the court held that “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination,” was not enough to satisfy the ‘membership in a social group’ requirement and her asylum was denied.[121]  R-A- was a Guatemalan woman who was denied asylum because her claim did not fall into one of the five enumerated grounds.[122]  Members of the court acknowledged the fact that she was abused by her husband based on being female, and that his violence against her (rapes, beatings, and transmitting sexual diseases) rose to a level sufficient to equal persecution.[123]  However the court was “not persuaded” that the abuse occurred because of her membership in a particular social group or political opinion and denied her asylum.[124]

  1. C.    Examples of Countries with Gender Based Guidelines for Asylum Cases

As seen from these cases above, most asylum cases involving females focus on sexual and gender-based violence.  However, because the U.S. immigration court do not have clear guidelines in handling gender related cases, and because there is no specific enumerated grounds allowing gender to play a role in claiming asylum, most females are offered little to no protection.  Internationally other countries like Canada, Australia, and the United Kingdom, have started making strides towards incorporating gender issues into asylum claims by issuing guidelines.[125]

In 1993, Canada became the first party to the Refugee Convention to issue gender guidelines for reviewing gender based asylum applications.[126]  The Canadian Immigration and Refugee Board issued Guidelines on Women Refugee Claimants Fearing Gender-Related persecutions (“Canadian Guidelines”).[127]  The Canadian guidelines have established gender-based violence as a form of persecution that qualified for valid asylum claims; it also interprets the 1951 Convention definition of refugee to include gender related claims with more sensitivity.[128]  The Canadian Guidelines state that,

“the fact that the particular social group consists of large numbers of the female population in the country concerned is irrelevant – race, religion, nationality and political opinion are also characteristics that are share by large numbers of people.”[129] 

  The fact that females can be persecuted because of kinship, gender discrimination, violent acts, or “as a consequence for failing to conform to, or for transgressing, religious or customary laws and practices in their country of origin,”[130] is also recognized.

Canada has begun using the Canadian Guidelines in its review of asylum applications.  In a Canadian asylum case analyzed with the aid of the Canadian guidelines, the court held that a female applicant qualified for asylum based on the fact the her “father’s physical and emotional force was a violation of her security and amounted to ‘cruel, inhuman and degrading treatment.”[131]  This asylum application was based on the applicants argument that “her father decided that she was too westernized,” thereby abusing her and forcing her into marriage with an older man.[132] (808, 809)

The United Kingdom has also expanded its guidelines, and allowed broader interpretation of the UNHCR’s guidelines, for reviewing asylum cases.  This can be particularly seen in a House of Lords decision regarding an asylum petition of an applicant from Sierra Leone attempting to escape FGM.  The court stated that “UNHCR guidelines remind us [that] harmful practices in breach of international human rights law and standards cannot be justified on the basis of historical traditional, religious or cultural grounds.”[133]  The court by that extension concluded that FGM was a breach of international human rights.[134]  Members of the court held that victims who are required to undergo FGM have the same ‘immutable’ characteristics of being female and belonging to the same tribe.[135]  The court reasoned that the females of this tribe in Sierra Leone would share these characteristics regardless of the fact of whether or not they had to undergo FGM, and the fact that FGM is not an act that can be repeated or undone once it is performed has no bearing.[136]  Due to the House of Lord’s broader interpretation of asylum jurisprudence, the court granted the applicant asylum.[137]

  1. D.    Implementation – Incorporating Females Into Immigration Laws

The lack of emphasis on sexual and gender-based violence in immigration laws is a setback for females who try to apply for asylum in the United States.  Because there is no gender category upon which females can apply for relief, they often have to be creative in the way they petition courts for asylum.  As shown above, this can lead to very inconsistent results and leave many females without adequate protection from their abusers. 

“Gender based persecution flows not [only] from the victim’s biological sex but, rather, from the power relations that characterize relations between men and women.”[138]  To ensure adequate measures of protection for females, immigration review panels should “implement new methods of interpretation and analysis in determining the asylum status of women, such as using gender sensitive techniques to analyze an applicant’s claim.”[139]  Hence, the U.S. can rectify the current situation by issuing guidelines and training reviewing officers on how to appropriately review claims based on gender issues.  The guidelines should recognize persecution on the basis of gender and sex.  Furthermore these guidelines and trainings should help to remove the dominance of male perspectives and bring more sensitivity in understanding the violence and abuse females suffer.  These guidelines should also incorporate the social roles that males and females play in different societies.[140] 

The small number of women that apply for asylum can be linked to their meager financial status and their inability to flee from their home.[141]  Women that have suffered from gender-based abuse,[142] feel great shame in talking about their experiences.  This is because many of the societies they are originally from, do not view these females as victims, but rather see them as a symbol of shame on the family.  This often keeps them from speaking openly and fully about the abuse they have suffered or revealing intimate details that could help them in their asylum claims.  Therefore, if Immigration officers are trained accordingly to know how to recognize and handle these situations, it will help to stop female asylum applicants from not speaking about their experiences.[143]  In addition, female asylum applicants should be briefed that disclosure of their intimate details will remain confidential, in order to help them feel more comfortable.  They should also be provided with resources to consult providers that can provide therapeutic assistance to applicants.[144]

Most times “[w]omen have had difficulties establishing their claim to refugee protection because…harms from which they flee are perpetrated by private entities and cannot be directly attributed to the state.”[145]  Therefore, their claims do not fall within statutory definitions of persecution.  To rectify this situation, the U.S. can enact formal laws that are specific to gender related claims.  Specifically, ‘gender’ can be added as a sixth enumerated ground upon which relief can be granted.  It could also be accomplished through the implementation of a separate code that provides laws for asylum claims based solely on gender.  The expanded definition of sexual and gender-based violence implemented by the UNHCR that was discussed in section two can be a stepping stone for the creation of these laws.  If the UNHCR’s expanded definition of sexual and gender based violence is included in a separate code it will allow the full range of sexual and violent acts to be included in asylum laws.  Furthermore, it will expand protection to females for harms perpetrated by their families, communities, and state institutions.  This is especially important because then violent acts committed in public and private spheres will both be covered within asylum jurisprudence.

Adding gender as an enumerated ground will not make the burden of proof for asylum applicants any less stringent.  “A refugee applying for asylum on the basis of gender would [still] have to fulfill all requirements of the asylum laws.  An applicant would have to prove that the harm she faces rises to the level of persecution ‘encompassing more than threats to life or freedom.”[146]  Thereby, even if gender were added as an enumerated ground an applicant would still have to supply evidence as would be done currently in asylum cases.

Less intensive measures that could be implemented by U.S. Immigration Courts is to allow Temporary Protective Status (“TPS”) to applicants whose applications for asylum are denied because they are based on gender-related issues.  Allowing these applicants TPS status would give them the opportunity to escape from their hostile environment.  It will also help these females organize and find resources to start a different life elsewhere, rather than returning to an abusive environment.  

Often women and children are targets for sexual and gender-based acts during situations of extreme natural disasters, or internal struggles and war.  Therefore, another option for the U.S. would be to dispatch Immigration officials to stable neighboring countries that can assist in either providing TPS for females that have been subjected to persecution, or even assist in helping them prepare asylum applications.  

The strongest argument against the above proposed implementation policies is that the U.S. has a strong concern against broader interpretations of gender-based applications because it would create a wave of females trying to seek asylum within its borders.[147]  This would not be the case.  “Women seeking refugee status still must conquer numerous procedural and substantive requirements, and thus, nations may prevent holdings that would allow large populations of women suffering a particular abuse to seek asylum.”[148]  For example, victims of spousal abuse must show that their state is unwilling to help; victims of forced marriage must show that her father’s power made it unlikely she would receive police assistance.[149]  Additionally, only a small percentage of female victims have the resources and availability to leave their home countries in search of asylum elsewhere.  For these reasons, adding gender into interpretations of asylum applicants will not create an influx of female asylum applicants.

  1. III.      Conclusion

As this article has addressed, females face many obstacles in gaining recognition in current immigration laws.  Furthermore, their avenues for seeking asylum are limited and only sporadically have lead to adequate protection from violence and abuse.  While many International Conventions have spent energy in bringing awareness to the different types of sexual and gender-based acts that are committed against women, many formal government institutions have done little to help.  Asylum decisions based on female gender issues are often biased and result in denials.  This is even after courts have openly acknowledged that the abuse these females have suffered is sufficient to equal persecution.  However, because ‘gender’ is not an enumerated ground upon which relief can be sought, these asylum claims are denied.  Successful asylum claims based on female gender issues are due to creative arguments establishing membership in a social group or persecution based on religions reasons.

However, because most female asylum seekers have to argue around the box and cannot argue a simply on the basis of gender, most immigration court decisions are arbitrary and inconsistent.  To avoid the harms that are resulting because of lack of guidance and sensitivity to gender in the Immigration Courts today, the U.S. should work towards incorporating gender into its current asylum laws.  The best methods of implementation would be to create guidelines, similar to the Canadian guidelines, which recognized persecution based on gender and sex.  It was also help to alleviate the male dominance when reviewing immigration cases.  Furthermore, gender should be included as a sixth enumerated ground upon which asylum relief can be granted. 

Incorporating gender into current immigration laws is vital to protecting women and girls from sexual and gender-based acts they are most prone to be the victims.  Consequently, it is only appropriate to include females into asylum laws, as they comprise over 19 million of the refugees in the world today.


[1]David Nthengwe, 16 Days of Activism: The forgotten victims of conflict in the Congo, UNHCR News Stories, ¶ 1 (November 26, 2009), available at

[2] Id. at ¶ 2.

[3] Id.

[4] Id. at ¶ 3.

[5] Id.

[6] Id. at ¶ 4.

[7] Id.

[8] Id. at ¶ 5.

[9] Id.

[10] Id. at ¶ 6.

[11] Id.

[12] Id.

[13] Id. at ¶ 12.

[14] Id. at ¶ 7.

[15] Id. at ¶ 1.

[16] International Women’s Day: UNHCR chief stressed need for equality, UNHCR News Stories, ¶ 3 (March 8, 2010), available at

[17] Id.

[18] Id. at ¶ 7.

[19] Id. at ¶ 9.

[20] Id.

[21] Id. at ¶ 10.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at ¶ 11.

[26] Id.

[27]Tanya Domenica Bosi, Yeadegar-Sargis v. INS: Unveiling the Discriminatory World of U.S. Asylum Laws: The Necessity to Recognize a Gender Category, 48 N.Y.L. Sch. L. Rev. 777, 778 (2003).

[28] Id. at 779.

[29]David A. Martin et al., Forced Migration Law and Policy 297 (1st ed. 2007).

[30] Id.

[31]Bosi, supra note 28, at 778.

[32]Id. at 778, 779.

[33]Bosi, supra note 28, at 779.

[34] Id.

[35] Id.

[36] Id. at 793.

[37] Id.

[38] Id. at 794.

[39] Id.

[40] Id.

[41] Martin, supra note 30, at 297.

[42]Bosi, supra note 30, at 795.

[43] Id.

[44] Martin, supra note 30, at 297.

[45]Lori A. Nessel, “Willfull Blindess” to Gender-Based violence Abroad: United States’ Implementation of Article Three of the United Nations Convention Against Torture, 89 Min.. L. Rev. 71, 76 (2004).

[46] Id.

[47] Id.

[48] The U.N. High Commissioner for Refugees, Sexual and Gender Based Violence Against Refugees, Returnees and Internally Displaced Persons. Guidelines for Prevention and Response, 10 (May 2003), available at [hereinafter SGVB Guidelines].

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id. at 6.

[54] Id. at 15.  The SGVB Guidelines expand on the different types of Sexual and Gender-based violence to include examples of acts that fall within each category.  Sexual violence includes: rape, marital rape, attempted rape, child sexual abuse, defilement and incest, attempted/forced sodomy, sexual exploitation, forced prostitution, sexual harassment, sexual violence as a weapon of war and torture.  Physical violence includes: physical assault, trafficking, and slavery.  Emotional and Psychological Violence includes: abuse, humiliation, and confinement.  Harmful Traditional Practices includes: female genital mutilation (FGM), early marriage, forced marriage, honor killings, maiming, infanticide, and denial of education for girls or women.  Socio-Economic Violence includes: discrimination and/or denial of opportunities, services, social exclusion/ostracism based on sexual orientation, and obstructive legislative practice.  Id. at 16-18.

[55] Convention on the Elimination of All Forms of Discrimination Against Women, U.N. GAOR 3d Comm., 34tth Sess., Agenda Item 75, U.N. Doc. A/34/180 (Jan. 22, 1980), reprinted in 19 I.L.M 33 (1980) [hereinafter CEDAW].

[56] SGVB Guidelines, supra note 49, at 11.

[57] Id. at 10.

[58] Id.

[59] Id. at 16-18.

[60] Id. at 22.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67]Nthengwe, supra note 2, at ¶ 12.

[68] SGVB Guidelines, supra note 56, at 22.

[69] Id.

[70] Id.

[71] Id.

[72]Nessel, supra note 46, at 98.

[73] Id.

[74] CEDAW, supra note 56, at 37.

[75] Id.

[76] Id.

[77] Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. GAOR, 48thSess., Supp. No. 49, at 217, U.N. Doc. A/Res/48/49 (1993) [hereinafter DEVAW].

[78] Id.

[79] Id.

[80] Id.

[81] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1988), available at [hereinafter Rome Statute].

[82] Id.

[83] Id.

[84] Id.

[85]Nessel, supra note 46, at 80 (citing Violence Against Women Act of 2000, Pub. L. No. 106-386, 1501-13, 114 Stat. 1464, 1518-37 (codified at 22 U.S.C. 7101 (2000))) [hereinafter VAWA].

[86] Id.

[87]Elizabeth Adjin-Tettey, Failure of State Protection Within the Context of the Convention Refugee Regime With Particular Reference to Gender-Related Persecution, 3 J. Int’l Legal Stud. 53, 56 (1997).

[88] Id.

[89]Bosi, supra note 28, at 781.

[90] Id.

[91] Id.

[92] Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (April 22, 1954), available at

[93]INA §241(b)(3), 8 U.S.C. §1231(b)(3).

[94] Id.

[95]Bosi, supra note 28, at 783, 784.

[96] Id. at 784.

[97] Id. at 791.

[98] Id. at 786.

[99] Id. at 787.

[100]Nessel, supra note 46, at 87.

[101] Id.

[102] Gomez v. INS, 947 F.2d 660, 662 (1991).

[103] Id.

[104] Id.

[105] Id.

[106] Id. at 664.

[107] In re Kasinnga, 21 I. & N. Dec. 357 (1996). 

[108] Id.

[109] Id. at 385.

[110]Nessel, supra note 46, at 103.

[111] Id. at 102.

[112] Id. at 103.

[113] Id.

[114]Bosi, supra note 28, at 797.

[115] In re S-A-, 22 I. & N. Dec. 1328 (2000).

[116]  Id. at 1337.

[117] Id. at 1329.

[118] Id. at 1335.

[119] Id. at 1336.

[120] In re R-A-, 22 I. & N. Dec. 907 (2001).

[121] Id. at 918.

[122] Id.

[123] Id. at 908.

[124] Id. at 927.

[125] Lindsay M. Harris, Untold Stores: Gender-Related Persecution and Asylum in South Africa, 15 Mich. J. Gender & L. 291, 305 (2009).

[126]Nessel, supra note 46, at 99.

[127]Immigration and Refugee Bd. (Can.), Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender Related Persecution (1993), reprinted in 5 Int’l J. of Refugee L. 278 (1993) [hereinafter Canadian Guidelines].

[128] Id.

[129] Id.

[130]Bosi, supra note 28, at 807.

[131]Bosi, supra note 28, at 808, 809

[132]Bosi, supra note 28, at 808, 809.

[133] Id. at 312, 313 (citingK. v. Secretary of State for the Home Dep’t, (2006) UKHL 46 (House of Lords)).

[134] Id. at 313.

[135] Id.

[136] Id.

[137] Harris, supra note 126, at 303

[138] Id.

[139] Id. at 805.

[140] Id.

[141]Nessel, supra note 46, at 95.

[142] Common examples of gender-based acts include rape, violence, honor killings, forced sterilization, female genital mutilation (FGM), and forced marriages.

[143] Id. at 96.

[144] Harris, supra note 126, at 340.

[145]Tetty, supra note 88, at 86.

[146]Bosi, supra note 28, at 804.

[147]Nessel, supra note 46, at 78.

[148]Bosi, supra note 28, at 811.

[149] Id. at 811.

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