Gender-Based Asylum Law in the United States

In 1995, a significant adjudication memo entitled “Considerations for Asylum Officers Adjudicating Asylum Claims from Women” (PDF, 19 pages) was published by the United States Office of International Affairs and circulated to all Immigration and Naturalization Services (INS) officers.  It provides a summary of the gender-based asylum issues and international developments which were emerging at the time as well as some practical guidance and standards for adjudication officers.  Among the noteworthy components of this memorandum are the following considerations which Asylum Officers are encouraged to keep in mind when dealing with female asylum claimants.  These considerations are:

  • The laws and customs of some countries contain gender-discriminatory provisions.  Breaching social mores (e.g., marrying outside of an arranged marriage, wearing lipstick or failing to comply with other cultural or religious norms) may result in harm, abuse or harsh treatment that is distinguishable from the treatment given the general population, frequently without meaningful recourse to state protection.  As a result, the civil, political, social and economic rights of women are often diminished in these countries.
  • Although women applicants frequently present asylum claims for reasons similar to male applicants, they may also have had experiences that are particular to their gender.  A woman may present a claim that may be analyzed and approved under one or more grounds.  For example, rape (including mass rape in, for example, Bosnia), sexual abuse and domestic violence, infanticide and genital mutilation are forms of mistreatment primarily directed at girls and women and they may serve as evidence of past persecution on account of one or more of the five grounds.
  • Some societies require that women live under the protection of male family members.  The death or absence of a spouse or other male family members may make a woman even more vulnerable to abuse.
  • Women who have been raped or otherwise sexually abused may be seriously stigmatized and ostracized in their societies.  They may also be subject to additional violence, abuse or discrimination because they are viewed as having brought shame and dishonor on themselves, their families, and communities.

From: “Considerations for Asylum Officers Adjudicating Asylum Claims from Women,” 4.

These considerations are helpful in understanding why gender-based cases need to have separate adjudication guidelines, as these considerations are unique to gender-based claims.  In addition to these considerations, this memo also discusses issues regarding membership in a particular social group, public vs. private acts, the nature of persecution, and the availability of home state protection.

Amendments to immigration regulations were considered by Congress in 2000 to allow for gender to form the basis of a “particular social group” ground for asylum claims, but these changes have yet to be adopted.  Immigration courts continue to look to old guidelines and precedence from cases such as Kasinga and R-A- as the grounds for deciding gender-based asylum claims.  For further U.S. discussion, please see “Comments of the Lawyers Committee for Human Rights” (PDF, 15 pages), Federal Register Vol. 65, No. 236, 8 CFR Part 208 (7 Dec 2000), as well as the USCIS memo, “Questions and Answers: The R-A- Rule,” about the rules created by The Matter of R-A-.

Asylum Based on Fear of Being Subjected to FGM: Membership in a particular social group based on the fear of being subjected to female genital mutilation (FGM) is now recognized as a legitimate basis for asylum claims in the United States, but the process to establish FGM as grounds for asylum was long and difficult.  One of the first landmark cases in the U.S. was Matter of Kasinga in 1996. Fauziya Kassindja was a 17 year old young woman from Togo who had fled her home country to escape female genital mutilation and life in a forced polygamous marriage. When Fauziya arrived in the United States she was placed in detention and initially had her claim for asylum based on FGM denied by an immigration judge because at that time FGM was not recognized as one of the five grounds for asylum. With the help of advocate Karen Musalo, however, Fauziya appealed the judge’s decision and was eventually granted asylum in 1996 based on her membership in the particular social group “Young Women of the Tchamba-Kunsuntu tribe who resist FGM and who do not have protection against it.” As argued in Kasigna’s appeal, membership in this social group was qualified for asylum because it was more likely than not that Kasinga would have been forced to undergo FGM if she had been returned to Togo, and FGM constituted a threat to the life and freedom of Ms. Kasigna.

Following the precedent established in the Kasinga decision, immigration judges in the United States began to regularly grant asylum based on the applicant’s fear of being forced to undergo FGM if the applicant were to return to her home country. (From: The Center for Gender and Refugee Studies (CGRS), Hastings College of Law, http://cgrs.uchastings.edu/about/kasinga.php)

Asylum Based on Humanitarian Grounds due to Past FGM: While Kasinga established the fear of being subjected to FGM in the future as grounds for asylum, it was several years before women who had already undergone FGM had their claims recognized as a legitimate basis for asylum in the United States.  While asylum claims are generally based on a fear of future harm, U.S. law also allows claims to be granted on humanitarian grounds if:

 

           i.            The “applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of that past persecution” or

 

         ii.            On the grounds of continuing persecution if “the applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country” (8 C.F.R §1208.12(b)(1)(iii)).  

 

Previously, FGM asylum applicants who had already undergone FGM (referred to here as “past FGM” cases) had difficulty showing “continuing persecution” under the second clause of the above regulations since FGM was viewed as a one-time event. Many immigration judges also held that for applicants who had already undergone FGM, this past experience did not constitute persecution that was severe enough to warrant a compelling reason for granting asylum based on humanitarian grounds under the first clause of the above regulations.  New asylum case precedent in the United States, however, has shown that asylum applicants who have already been subjected to FGM may still be eligible for asylum under either the first or second clause of 8 C.F.R §1208.12(b)(1)(iii).

In the Matter of A-T, for example, the U.S. Board of Immigration Appeals (BIA) initially held that the asylum applicant’s past subjection to FGM did not constitute grounds for granting asylum. Advocates complained, however, that this policy towards past FGM and asylum failed to recognize the severity and long terms effects of FGM, including its ongoing physical and emotional side effects.  In September 2008, Attorney General Mukasey vacated the BIA’s decision to deny asylum for A-T and remanded it to the BIA for reconsideration. This remand held that the BIA’s logic that A-T had no reason to fear future persecution since she had already been subjected to FGM was flawed. Mukasey pointed out that FGM was not necessarily a “one-time” act and there was a possibility that other related procedures such as infibulation could also be inflicted on A-T if she were returned to Mali. The remand of A-T, therefore, seemed to say that asylum cases where the applicant had already undergone FGM could possibly still qualify for asylum under the “continuing persecution” clause (ii) cited above (From: The Center for Gender and Refugee Studies (CGRS), Hastings College of Law, http://cgrs.uchastings.edu/campaigns/matterofat.php)

In the remand of the Matter of A-T, the Attorney General cited Matter of S-A-K and H-A-H, another past FGM case in which asylum was granted upon appeal in March 2008. In the Matter of S-A-K and H-A-H, a mother and daughter from Somalia were granted asylum based on past FGM (the mother testified that she underwent FGM/infibulation approximately five times, including opening for sexual intercourse and child birth). The BIA in Matter of S-A-K and H-A-H described FGM as “an atrocious form of persecution that results in continuing pain and discomfort” which merited asylum on humanitarian grounds because of the “severity of past persecution” clause (i) cited above.

While some viewed the decision to grant of asylum based on past FGM for S-A-K and H-A-H as due to the exceptionally aggravated nature of their FGM, others argued that “all cases of FGM should be considered ‘aggravated’ and ‘atrocious,’ and therefore eligible for asylum under the humanitarian principle” (Love, Carrie, Unrepeatable Harms, Columbia Law Review).  Given Mukasey’s remand of Matter of A-T, which occurred just a few months after the decision in Matter of S-A-K and H-A-H, it would appear that the United States government is becoming more inclined to agree with the position that all past FGM cases should be eligible for asylum based on the humanitarian grounds as laid out in 8 C.F.R §1208.12(b)(1)(iii) due to both the severe nature of the past harm inflicted (clause i) and the possibility that the harm might be repeated (clause ii).

 

For a sample of other asylum cases where the applicant had undergone FGM prior to applying for asylum, please visit the CGRS database.  For more information on past FGM and asylum, please review Kasinga's Protection Undermined?, Bender’s Immigration Bulletin, December 1, 2008.  For more information on FGC and Asylum, including analysis on international law, please visit Female Genital Mutilation as Grounds for Asylum, FORWARD.

Asylum and Domestic Violence: Domestic violence cases are another area of gender-based asylum in the United States which has received a lot of attention.  One landmark case is Matter of R-A, in which Rody Alvarado Peña from Guatemala applied for asylum in the United States after Guatemalan police refused to take action against her husband who had been brutally abused her for over 10 years. In 1996, an immigration judge granted Ms. Alvarado asylum, but the BIA reversed the decision following an appeal by the immigration service. This reversal was based on the BIA’s opinion that domestic abuse did not qualify as a legitimate ground for asylum, since it was not on account of a political opinion and the persecution was conducted by a non-state agent.  It was also stated that Ms. Alvarado failed to properly define a “particular social group” and show that she suffered persecution for her membership in that group. When the BIA reversed its decision in Matter of R-A- and denied asylum to Ms. Alvarado, a wave of denials in other asylum cases which were based on gender-based issues, including domestic violence, trafficking, and gang rape, followed.  Ms. Alvarado appealed the new decision, and a 14 year legal battle began.  

In 2004, the Department of Homeland Security submitted a brief recommending that Ms. Alvarado be granted asylum.  The DHS argued that in some cases, victims of domestic abuse should be granted asylum and that Ms. Alvarado had appropriately defined a particular social group and demonstrated persecution meriting asylum. In 2008, Attorney-General Mukasey ordered the BIA to reconsider Ms. Alvarado’s case and finally, in December 2009, Ms. Alvarado’s case was resolved and she was approved for asylum in the United States (NPR, Domestic Violence Victim Granted Asylum). Advocates are now calling for the Obama administration to create new regulations to formalize the precedent set in Ms. Alvarado’s case and standardize asylum adjudications for victims of domestic violence (Leahy Praises Resolution).  (From: The Center for Gender and Refugee Studies (CGRS), Hastings College of Law, http://cgrs.uchastings.edu/campaigns/alvarado.php). 

One factor which may have contributed to Ms. Alvarado’s eventual approval was a brief submitted in another important domestic violence asylum case, Matter of L-R-.  L-R- is a domestic abuse victim from Mexico who filed for asylum after fleeing to the United States in 2004. Her testimony detailed how she was severely abused by her husband for nearly 20 years and how both the courts and police were unwilling to help her find relief.  Her asylum claim is based on membership in the particular social group of “Mexican women in an abusive domestic relationship who are unable to leave.”

In April 2009, the Department of Homeland Security filed a brief for L-R’s case which concluded that it was possible for domestic abuse victims to qualify for asylum in the U.S. if they could properly define membership in a particular social group and show that protection is not available in their home country. While L-R’s case is on-going, the approval of Matter of R-A- following the L-R- brief may indicate a new increased openness to granting asylum applications based on domestic violence.  

For more information on the Matter of LR and its implications for US asylum policies, please see USA: New Policy Gives Foreign Victims of Domestic Abuse Access to Asylum. For summaries of other domestic abuse asylum cases in the United States, please visit the CGRS database.