Tuesday, April 17, 2012

Litigating gender-based asylum claims

(Thank you sincerely to IntLawGrrls for inviting me to contribute this introductory post)

Recently, during my introductory lecture for the Refugee & Asylum Law course at George Mason University School of Law, I was reminded of the fact that achieving immigration relief for women and girls facing gender-based violence overseas is a highly specialized area of the law.
To the uninitiated, including the law students in my class, a reading of the "refugee" definition, codified domestically in the U.S. Refugee Act of 1980, does not make it immediately clear how claims by women facing gender-based violence fit within the definition. In fact, in a short introductory quiz, all of the ten students in class voted "no" when asked whether it was possible for a Guatemalan woman fleeing domestic violence to be granted asylum in the United States.
The "refugee" definition, which asylum seekers in the United States must meet in order to be granted asylum, states that a refugee is a person who has suffered persecution or who has a well-founded fear of future person on account of one of five protected grounds:
'race, religion, nationality, membership in a particular social group, or political opinion.'
Gender is not specifically listed as a ground, and, indeed the only country to my knowledge that has formally recognized gender as a sixth ground for asylum is South Africa.
In my work leading the African Women's Empowerment Project at the Tahirih Justice Center, a non-profit organization serving immigrant women and girls fleeing gender-based violence, I litigate gender-based asylum claims on a daily basis.
Launched in 2010, the Project provides vital services to African immigrant women and girls facing a variety of harms, whether the harm takes place abroad or in the United States; for example:
► Female genital cutting or mutilation,
► Domestic violence,
► Rape or other sexual violence,
► Honor killings,
► Forced marriage, and
► Human trafficking.
Along with direct representation in immigration proceedings, the Project also aims to empower the African immigrant community with knowledge of the rights and paths to relief for survivors of gender-based violence by working with former clients and community leaders to conduct outreach and education within the community.
The ground-breaking 1996 decision in Matter of Kasinga – which was litigated by California-Hastings' Karen Musalo (prior IntLawGrrls posts) and in which Tahirih's Executive Director, Layli Miller-Muro (right), was involved as a law student – paved the way for gender-based claims. (photo credit) In that precedent-setting decision, the Board of Immigration Appeals held that a young Togolese woman fleeing female genital cutting had a well-founded fear of persecution on account of her membership in a particular social group described as "[y]oung 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."
In Matter of A-T- (2009), the BIA recognized female genital mutilation as ongoing harm, and further recognized that even women who have already undergone female genital mutilation may face additional harms on the same grounds if returned to their home countries, including but not limited to forced marriage.
Progress has also been made on asylum claims involving other gender-based harms, such as domestic violence.
After an arduous 13 years of litigation, Rodi Alvarado, a Guatemalan woman fleeing horrific domestic violence at the hands of her husband, was granted asylum before an immigration judge (thus a non-precedential decision) in late 2009. (IntLawGrrls' prior posts on this case are here, here, here, and here; see also here.) Similarly, in 2010 in Matter of L-R-, an immigration judge granted asylum on remand to a Mexican woman seeking asylum after suffering years of abuse at the hands of the father of her children.
Obstacles to relief for women facing gender-based violence remain, however. These cases are fraught with the multi-faceted challenges of working with individuals who have suffered violence and trauma. They are made additionally difficult by the BIA's introduction of new factors for consideration of the validity of a particular social group; namely, that the group be "socially visible" and "particular." See, for example, In Re C-A- (2006) and Matter of S-E-G- (2008).
One challenge specific to the African immigrant community and African Women’s Empowerment Project is the difficulty in gaining relief for a parent of a girl who may be forced to undergo female genital cutting in the girl’s or parents’ country of origin.
It is well-established, thanks to the Kasinga case, that a woman can be granted asylum based on her own fear of being subjected to female genital mutilation, or on her experience of female genital mutilation as past persecution and her fear of further harm in the future. As an asylee, that woman would then have the right to file petitions for any spouse and children to join her here in the United States as "derivative asylees."
But, what about a mother who fears that if returned to her home country, her young daughter will be subjected to female genital cutting?
If the daughter did not have status in the United States, the daughter herself could be granted asylum; however, she could not file a petition for her parents also to obtain lawful immigration status in the United States. See 8 U.S.C. § 1158(b)(3)(A)(2004). Essentially, where parents choose to take a courageous stand in support of their daughter’s human rights and against harmful traditional practices, including female genital cutting and forced marriage, families can be torn apart by current U.S. asylum law and by the courts' interpretation of that law.
Through creative lawyering, advocates have been able to gain relief for many families facing this heartbreaking choice of family unity versus the safety of a child. But whether or not this relief is possible is highly dependent on the jurisdiction in which the family applies for asylum because of the inconsistent positions among the Circuit Courts of Appeal on this issue.
A much cleaner solution to this problem would be the amendment of the U.S. Code to allow for the father, or mother, or a girl facing female genital cutting, whether that girl is a citizen or a non-citizen, to be granted asylum if he or she opposes the practice and fears that the girl will be subjected to it if sent to the country in question.


Unknown said...

nice post! such a small world...we are in the same field.

Christel Querton said...

Thank you for an interesting article.

The legislation in Spain and Sweden specifically mention gender as an example of PSG. Although this has not necessarily resulted in higher protection rates for women who flee gender-related persecution.

For a recent comment on the interpretation of PSG in the UK in gender-related claims, you might find my article interesting: http://www.sas.ac.uk/sites/default/files/files/RLI/RLI_Working_Paper_No_3.pdf

Lindsay said...

Thank you so much for your comments.

Christel, I have learned since posting this that Panama apparently formally recognizes gender as its own ground for asylum.

The U.S. legislation does not define particular social group and we are still awaiting the issuance of regulations on that issue. But, we do have guidance memoranda and case law that clearly recognize gender as an example of a particular social group.

This blog is a great forum for comparing asylum/refugee law internationally, thank you for sharing your insight!

Christel Querton said...

Thank you Lindsay.

Romania as well recognises gender as an additional ground for asylum.

A report entitled Gender-related asylum claims in Europe will be published at the end of May. It compares asylum law, policy and practice in 9 EU Member States (Belgium, France, Hungary, Italy, Malta, Romania, Spain, Sweden and the UK). It will be available on 30May on Asylum Aid's website. It might be useful for your advocacy in the US as it higlights good practice throughout!