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Gender Asylum
  Conclusion

Women across the globe suffer gender specific persecution, such as sexual assault, domestic abuse, sexual trafficking, institutionalized gender discrimination, female genital mutilation and systematic rape as a weapon of war. Although the issue of gender persecution throughout the world came to public attention in the United States in the 1990s and has begun to be viewed as a legitimate public policy concern, the immigration laws of the United States still fail to address this specific reality adequately and hence the United States borders largely remain closed to women of color seeking asylum. We include a discussion of women seeking gender asylum because most of these women are black and brown and in our view, their treatment while seeking asylum in part represents discrimination because of its assumption of the acceptability of abuses against women of color.

Enumerated in United States asylum and refugee law are five categories for granting asylum: race, religion, nationality, political opinion or membership in a social group. Courts in the United States have only recently begun to recognize the dire need for granting survivors of violence asylum when the violence they face is specifically due to gender, such as domestic violence and rape as a political act during times of war. The standard for granting a woman asylum in the United States is whether the woman will face particular persecution separate or worse than that of other women in her country.53 The following cases illustrate the weight courts put on the fact that the oppression each asylum seeker faced was not unique to her. The Second Circuit court denied Ms. Gomez, a victim of systematic rape in El Salvador, asylum because, “[w]e cannot. . . find that Gomez has demonstrated that she is more likely to be persecuted than any other young woman . . . [a]ccordingly . . . she has not proven her status as a refugee.”54 The Third Circuit also pointed out that “the petitioner had not shown that she and the other members of her group would be persecuted but only that they would be subjected to ‘the same restrictions and regulations applicable to the Iranian population in general.”55 This standard accepts gender persecution as status quo in countries with systematic oppression of women. Thus, “[b]ecause a woman seeking asylum must show that she will be persecuted to a greater degree than the general female population, an asylum claimant faces a much higher evidentiary burden if she comes from a country that persecutes or allows persecution of all or most women.”56

• Between the ages of 12 and 15 Carmen Gomez was beaten and raped five times by guerrilla soldiers in El Salvador because her family did not support the rebel cause. Each time, the guerrillas threatened her life. When she escaped to the United States, the INS found her deportable. Upon appeal the Second Circuit affirmed the decision because, the court held, she failed to meet the five criteria for asylum and she was no more likely than other women in El Salvador to face such persecution. See Gomez, 947 F.2d at 660.
• Fatina sought refuge in the United States because as a woman in Iran she was expected to conform to very restrictive standards. Because she held western beliefs and feminist ideologies, and refused to conform, she feared persecution in Iran. The Third Circuit upheld her deportable status because, the court held, she did not have a credible fear of persecution. Rather than persecution, Fatina would be subjected to the same treatment as all other Iranian women. See Fatin, 12 F.3d at 1233.

In response to domestic and international pressure and in the footsteps of reforms in Canada, the United States Immigration and Naturalization Service (INS) in 1995 issued a set of guidelines for its agents to follow in considering a gender asylum case.57 The guidelines are designed to improve the interaction between asylum seeker and the agent by educating the agents about the issues due to which women seek asylum as well as their impact on the physical, mental and emotional health of asylum seekers and guiding the agents in providing better service to these women.58 The guidelines do not, however, change the substantive law and preclusive barriers to asylum for persecuted women. They are only recommendations that are used to train new agents and provide procedural considerations to active agents. They only apply to INS agents and are not binding on immigration judges, nor the federal courts that have the final say on granting asylum.

• Fauzyia Kasinga was a 19-year-old girl from Togo, who had left her home at seventeen because of her fear of being forced to undergo FGM. In the case, In re Kasinga, which was decided by the Board of Immigration Appeals, it was found that Ms. Kasinga experienced a fear of persecution based on her social group that a reasonable person in her situation would experience, and the Board granted her asylum. The BIA established her social group for purposes of asylum as female members of the Tchamba-Kunsuntu Tribe of northern Togo who had not experienced FGM. The case represented the first time a national court had heard such a case, and as precedent, opened the door, if narrowly, to further grants of asylum based on FGM.

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Conclusion and Suggested Questions

Consequently, women are still forced to fit their claims into the United States’ restrictive definition of refugee status and are more often than not denied asylum, forcing them to return to dangerous, even deadly circumstances in their home countries.

• What steps has the federal government taken to oversee the enforcement of gender asylum guidelines through the entire immigration system and what studies have been undertaken to evaluate the guidelines’ effectiveness?
• What steps has the Immigration and Naturalization Service taken to ensure that women seeking asylum are not subjected to abuse in U.S. detention centers?

Last Page: Conclusion

Footnotes
53 See Thiele, Bret, Persecution on Account of Gender: A Need for Refugee Law Reform, 11 HASTINGS WOMEN’S L.J. 221, 232 (2000).
54 See Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991).
55 Fatin v. INS, 12 F.3d 1233, 1243 n12 (3rd Cir. 1993).
56 Theile, supra at 225.
757 See Theile, supra at 232.
58 See Seith, Patricia, Escaping Domestic Violence; Asylum as a Means of Protection for Battered Women, 97 COLUM. L. REV. 1804, 1830-33 (1997).

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