The practice of "gender-based" persecution, while strikingly persistent throughout history and around the world, has only recently been given a name and a place in legal discourse. Although gender-based persecution can be inflicted on both males and females, for the following discussion, I will focus on the unique challenges that women and girls face as they navigate the legal system, in search of protection from violence inflicted upon them because they are female.
While gender-based persecution takes many forms, depending on the culture and context within which it occurs, certain common threads are woven throughout women’s experiences of violence. For example, women and girls, as opposed to males, often suffer violence at the hands of family members, within what many still consider to be the "private" sphere: the home. This is the case with abuses such as "honor" crimes, domestic violence, incest, female genital mutilation, forced marriage, and widow rituals, in which a woman whose husband dies at a young age is presumed guilty of his death and is subjected to various forms of punishment including shaving her head or having to marry her brother-in-law. Furthermore, these abuses often are inextricably tied to the notion that men, and by extension, the family, own the bodies of the women in the family. Therefore, the choices that women make with regard to their bodies, for example, those involving sexuality or motherhood, are not their own; rather, they are a reflection of the values of the family or even the larger cultural and/or religious community.
Many gender-based abuses also involve the infliction of shame. For example, in numerous cultures if a woman is raped or subjected to spousal abuse and she tries to seek redress, her family and community may ostracize her and treat her as ruined property, unworthy of remarriage. A society or family that criminalizes a rape victim as an adulteress, condemning her to shame and labeling her a prostitute, must inherently view all women as property to begin with, unworthy of respect as full human beings ( See, e.g., Seth Mydans, In Pakistan, Rape Victims Are the ‘ Criminals,’ N. Y. Times, May 17, 2002. By the same token, the alternative for a woman who refuses female genital mutilation is ostracization, shame, and derision as either a promiscuous woman, or an inadequate, overgrown child. The threat of shame serves as a powerful inducement for young women and girls, kept ignorant of the details of the ritual, to look forward to it as their entrance into womanhood. A young woman may also face death as a result of refusing to participate in this ritual. As in the case of "honor crimes" or "blood revenge," a woman’s family might kill her to avenge her perceived transgression of sexual mores, believing that her actions have brought shame on the family.
Gender-Based Asylum as a Means of Protection
The evolution of what is now called "gender-based asylum" as a mechanism to protect women and girls from these forms of violence has been slow and long overdue. Opponents of gender-based asylum argue that opening up the doors for women to seek asylum on account of their gender would overwhelm our immigration system. See Dan Stein, Political Asylum Should Not Be Turned Into Social Asylum, Bloomsburg Press-Enterprise, May 6, 2001. Ironically, this position underscores the prevalence of gender-based persecution. Furthermore, U.S. asylum and refugee protection policy is based on how "wellfounded" an individual’s fear of persecution is, and in fact, the "wellfoundedness" of his or her fear is bolstered by evidence that others face the same "pattern or practice" of persecution. See 8 C.F.R. § 208.13(b)(2)(iii). In the case of female asylum seekers, however, many continue to deny the prevalence of gender-based violence so as to keep it swept under the rug and literally behind closed doors.
Historically, these fears have simply not panned out, and the Immigration and Naturalization Service (INS) has repeatedly corroborated this fact. See, e.g., http://www.ins.usdoj.gov, Questions & Answers: The R-A- Rule, Dec. 7, 2000. It is extremely traumatic for a refugee to flee his or her country, let alone for the most disenfranchised members of a society to do so. Flight requires, among other things, financial and other resources, some degree of physical and emotional health, assistance from others, and opportunities. It will be a long time before most women who face severe violence and degradation on a daily basis in their countries are able to escape. In short, the women who need us the most might never even know they have a place to escape to.
Specific Challenges of Women Fleeing Gender-Based Violence
Absence of "Gender" in the Refugee Definition, and the Proposed "Social Group" Regulations. The most patent challenge confronting women asylum seekers is that according to the law, they must prove that they have or will face persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group. 8 C.F.R. § 208.13. As "gender" is absent from this list, gender-based asylum cases are typically analyzed as political opinion, social group, or religious persecution cases. 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).
In June 1999, the Board of Immigration Appeals (BIA) denied asylum to a Guatemalan woman who fled horrific, repeated domestic abuse, essentially holding that she failed to (1) establish her membership in a cognizable social group, and (2) produce sufficient evidence that her husband abused her because of her political opinion or her membership in any particular social group. See Matter of R-A-, Int. Dec. #3403, BIA June 2000.
The former attorney general vacated Matter of R-A- on January 19, 2001, remanding the case to the BIA for adjudication pending promulgation by the Department of Justice (DOJ) of new regulations interpreting the "social group" ground for asylum. Proposed regulations were published in the Federal Register on December 7, 2000 (Vol. 65, No. 236), designed to provide guidance on the specific issues raised in Matter of R-A-, namely, domestic violence as "persecution" for purposes of asylum, and gender as a "social group" characteristic. For better or for worse, despite more than a year’s passage since the regulations were proposed, they have not been finalized to date. As a result, in spite of significant progress over the last several years such as Matter of Kasinga, inconsistency and confusion among adjudicators, advocates, and applicants nonetheless persist.
The proposed regulations are truly a welcome step forward as an explicit affirmation that gender or sex can form the basis of a particular social group, as originally stated in Matter of Acosta, Int. Dec. #2986 at 233, BIA March 1985. Furthermore, the regulations overtly acknowledge that punitive intent is not required for persecution, as in the case of female genital mutilation, where parents subject their daughters to this practice in adherence to tradition, and not necessarily with the intention of inflicting harm. The regulations also ensure that judges and adjudicators can no longer question, as a threshold matter, whether abuses such as domestic violence may form the basis of an asylum claim.
Despite this progress, however, in several instances, the regulations depart from well-settled precedent, unnecessarily and unfairly raising the bar for applicants. For example, in defining persecution as "objectively serious" harm, as opposed to "a threat to life or freedom," they impose language that appears to be consistent with human rights principles, while in actuality this language may be interpreted restrictively to preclude certain claims by women. Thus, an adjudicator could determine that domestic violence or a forced marriage by a woman’s parents might not be "objectively serious" enough harm to constitute persecution, where it is a common practice in her culture and within her family. In addition, according to the regulations, adjudicators should evaluate the reasonableness of any steps the government takes to control persecution, and whether the applicant has reasonable access to state protection. However, even where a government is willing to protect an applicant, it might be unable to do so. In this situation, an adjudicator might determine that the state did take reasonable steps toward protection of an applicant, even though the applicant in fact received no protection at all.
Finally, the regulations unnecessarily require an applicant’s protected characteristic (i.e., his or her ground for asylum), to be central to the persecutor’s motive in targeting the applicant. By contrast, well-established case law deems it sufficient for a persecutor to act in part on account of the victim’s protected characteristic. INS v. Elias Zacharias, 502 U.S. 478 (1992), Matter of S-P-, 21 I and N Dec. #3287 (BIA 1998), In re T-M-B-, Int. Dec. #3307 (BIA 1997). It is unclear why this current standard is in need of further restriction. The new standard will only serve to punish survivors of crimes such as rape and domestic violence, where aside from a woman’s word, evidence of her persecutor’s motive is often at best, elusive, and at worst, nonexistent. It is, therefore, apparent that while the regulations in their final form may pave the way for more women and girls to access asylum protection, they will nonetheless erect unwarranted, unjust obstacles for them to overcome in the process.
Additional Burdens of Proof When the Persecutor Is a Nonstate Actor. Another obstacle that women asylum seekers facing persecution by family members must contend with is that they have the burden of proving that their country’s government cannot or will not protect them from their family. For women fleeing the types of abuses discussed above, such as honor crimes or domestic violence, this may be a very difficult burden to meet. Evidence may only be anecdotal, and particularly where a country has outlawed a practice such as female genital mutilation, the woman must prove that in actuality, the law is not enforced.
Additionally, where a woman’s persecutor is her family, she has the burden of proving that she faces danger throughout her entire country. She must show that it would not be reasonable to expect her to relocate somewhere else within the country, away from her family or community. The regulations list factors to consider in evaluating the reasonableness of relocation, such as gender, health, etc. 8 C.F.R. § 208.13(3). It has been my experience, however, that particularly in recent months, adjudicators are applying a higher and higher standard of reasonableness. For example, as in the case of female genital mutilation, some adjudicators and immigration judges have rejected a woman’s detailed, consistent, and credible testimony as insufficient to prove to a near certainty that if deported, her relatives will know she and her daughter have returned home, and will pursue them and kidnap the daughter to perform female genital mutilation.
Credibility, Post-Traumatic Stress, and the Lack of Objective Evidence of Gender-Based Violence. Due to the intense shaming of women that accompanies gender-based violence, as well as women’s fears of retaliatory violence, women also face unique challenges in establishing their credibility and producing corroborative evidence of their claims. A rape survivor is unlikely to tell anyone in her country what has happened to her. She may face punishment in the form of death, stoning, other violence, divorce, or extreme ostracization. She is unlikely to go to the police, who may belittle her, or report the rape to her husband, and if she goes to the hospital, her ordeal will be public as well. In short, her word may be the only evidence she has. A woman who fears female genital mutilation or an honor crime, for having had premarital sex, for example, may have been taught to never speak about matters of sexuality to anyone, let alone men or authority figures. Women taught not to make eye contact with men will have difficulty appearing credible before a male judge. Women suffering from post-traumatic stress disorder will have difficulty recounting their ordeal confidently, coherently, and consistently. Ironically, the precise manifestations of post-traumatic-stress, such as selective memory and difficulty recounting certain details, are the same indicators that judges use to assess an applicant’s credibility. See http://www. ncptsd.org/facts/general/fs_effects.html; In re A-S- , Int. Dec. #3336, BIA 1998.
Generous Legal Standards Overlooked by Asylum Adjudicators. Despite these and other obstacles, it is noteworthy that the asylum regulations themselves are relatively generous toward asylum seekers, taking into account the harsh reality of their plight. For example, according to the regulations, an applicant’s testimony, if credible, "may be sufficient to sustain the burden of proof without corroboration." 8 C.F.R. § 208.13(a). The BIA has added that where it is reasonable to expect certain evidence from the applicant, he or she must provide a reasonable explanation for its absence. See In re M-D-, Int. Dec. #3339, BIA 1998. In my experience, however, adjudicators and immigration judges commonly ignore the language and spirit of the regulation, starting from the premise that the applicant can neither prove her case nor establish credibility with consistent, detailed testimony alone.
Another example of an often overlooked favorable legal standard is the regulation cited above allowing applicants to prove a "pattern or practice" of persecution against a group to which they belong, as opposed to individualized persecution. In theory, this regulation should alleviate the applicant’s need to seek out evidence specific to him- or herself, that either does not exist, he or she does not have access to, or that would be dangerous for the applicant to try to obtain. As discussed above, women facing abuses such as forced marriage or honor crimes are unlikely to have evidence beyond their word, yet they may be able to prove that in their country, women as a whole are systematically subjected to these abuses. It is truly rare, however, for an immigration judge or asylum officer to apply this standard with the generosity that its words demand.
Finally, according to INS v. Cardoza-Fonseca, 480 U.S., 421, 424-25 (1987), a one-in-ten chance of persecution is sufficient for a grant of asylum, and the regulations and Matter of Chen, Int. Dec. #3104 (BIA 1989), state that severe and atrocious past persecution is enough for asylum, absent future persecution. If immigration judges and asylum officers appropriately applied these standards, as opposed to marginalizing or overlooking them, women facing gender-based abuses might more readily find the justice that they are due. For example, it is hard to dispute that a woman’s torturous experience of forcible genital mutilation as a child constitutes severe and atrocious persecution. As such, its effects may continue to haunt her throughout her life in very concrete ways, such as an irreversible lack of sexual sensation, scarring, miscarriages, and chronic abdominal pain. In fact, in an unpublished decision in March 2000, the BIA explicitly recognized female genital mutilation as severe and atrocious past persecution, sufficient for an asylum grant in the absence of a fear of future persecution. Yet, because this decision is nonbinding on the INS and the immigration courts, adjudicators may continue to unfairly deny asylum to women who base their asylum claims solely on past persecution in the form of forcible genital mutilation.
Over the past several years, meaningful strides have been made toward protecting women and girls fleeing violence within the home in all of its diverse forms, inflicted on them because they are female. However, an age-old false distinction between the "public and private spheres" continues to infect our perceptions of who does and does not merit international protection from violence. Hopefully, as U.S. gender-based asylum jurisprudence progresses, this distinction will lose its hold, and women and girls will have more just and equitable access to protection. In order for this to happen, BIA members, immigration judges, and asylum adjudicators must be educated on issues relating to women asylum seekers. Specifically, there should be mandatory, in-depth training on the practices that form the basis of gender claims (e.g., honor crimes, forced marriage, etc.), post-traumatic stress disorder, the role of chastity and marriagability for women in their societies, and the life-threatening consequences of severe ostracization for women who are deemed transgressors of social mores. With regard to domestic violence-based asylum, U.S. adjudicators must continue to be educated about domestic violence as a threat to the life and safety of women just like other forms of violence recognized as persecution, and is not a private matter to be marginalized or dismissed as unworthy of international intervention.
The policy behind U.S. asylum law calls for the United States to step in as a surrogate where an asylum seeker’s own government has failed to protect her or him. Protecting survivors of domestic violence is, therefore, not only consistent with, but required by, the United States’s obligations as a signatory to the United Nations Convention Relating to the Status of Refugees. Finally, because troubling patterns of disregard for the generous legal standards for asylum continue to pervade the asylum process, I strongly urge the Executive Office of Immigration Review (EOIR) and INS to promote policies that more closely comport with the United States’s commitment to the protection of survivors of international human rights abuses. This must be a priority for the EOIR and the INS.