Gender and the Right to Asylum
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“Women’s Rights” by Narc Nozell is licensed under CC BY 2.0
Every year, persecution drives countless numbers of people from their homes, forcing them to seek asylum in other countries. For many, the United States is a popular destination. In 2017, the U.S. Citizenship and Immigration Services (USCIS) received approximately 140,000 affirmative asylum applications. Fernando Arlettaz, a member of the Laboratory of Legal Sociology at the University of Zaragoza defines asylum as the protection that a state offers a person whose life or freedom is endangered by acts, threats, and/or persecution from the authorities of a state. There are two types of asylum, affirmative and defensive. Affirmative asylum occurs when a person presents their application through an asylum official from the U.S. Department of Homeland Security. For undocumented residents who face deportation, some can claim defensive asylum to halt the process. The Universal Declaration of Human Rights states that in the case of persecution, anyone has the right to claim asylum and enjoy this status in any country. Although these categories are very important, there is a problem with U.S. asylum law: this definition does not include persecution rooted in gender-based violence. Though gender-based oppression is widespread, gender remains an unprotected class.
The urgency for this change has only increased in the wake of the #MeToo movement, as gender and power dynamics have received greater focus. According to Diana Koester, an author for the Development Leadership Program-an international research initiative, “Gender shapes power, from the ‘private’ relationships of the household to the highest levels of political decision-making.” The efforts made by the various feminist movements as well as the #MeToo movement highlight how women’s experiences differ from men’s and how this impacts all aspects of society, as in the case of seeking asylum.
In the U.S, people can seek asylum “because they have suffered persecution or fear that they will suffer persecution.” In this case, persecution is “a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group.” To receive asylum, a person needs to demonstrate that they suffer from a reasonable fear that they will be persecuted due to their membership in a protected class. While people have the right to claim asylum in U.S. law, the Trump administration has imposed significant limitations on the number of asylum seekers that the U.S. will accept every year. The administration has been aided by the Supreme Court, which recently ruled that the government has the power to decline asylum requests from individuals who fail to apply for asylum in other countries beforehand. For those attempting to claim asylum from Central American countries, many of whom are women fleeing gender-based violence, they “cannot seek asylum in the US if they didn’t first” seek asylum in Mexico or in Guatemala. The previous U.S. Attorney General, Jeff Sessions, did not believe during his tenure that gender should be its own class protected from persecution. Not only did Sessions doubt that domestic violence was a sufficient motive for claiming asylum, he also asserted that the “membership of a particular social group” category has a vague definition. Sessions accordingly curtailed asylum claims from those who faced domestic violence. These restrictions continue under the current Attorney General William Barr. In July 2019, Barr upended precedent when he ruled that immigrants fearing persecution because of threats against their family members are no longer eligible for asylum. Thus, this serves as an additional limitation on the number of asylum seekers that the U.S. will accept and impacts people’s ability to receive asylum, especially women. This decision not only impacts women by directly reducing the number of accepted asylum seekers across the board, but also indirectly as “claims of women are often presented as a derivative of the claims of their male partners.” Therefore, the impacts for women are two-fold as a result of the reduction in the number of asylum seekers accepted. Framing women’s asylum claims in the context of their male partners is a problem, not only because it does not acknowledge the way in which the woman has been persecuted based on gender, but it also creates a form of dependence on her male partner and hinders the woman’s agency to leave an abusive relationship. According to Lily Axelrod, an immigration lawyer, the Trump administration is ‘“not only turning its back, but is punishing people for asserting their belief that they deserve to be free from gender-based violence and envision a life where women are free and equal.”’
Women for Women International, an organization that helps marginalized women in war-torn countries, defines gender-based violence (GBV) as “violence that is directed at an individual based on his or her biological sex or gender identity. It includes physical, sexual, verbal, emotional, and psychological abuse, threats, coercion, and economic or educational deprivation, whether occurring in public or private life.” Female genital mutilation (FGM) is a “destructive operation, during which the female genitals are partly or entirely removed or injured with the aim of inhibiting a woman’s sexual feelings.” FGM is considered a cultural practice that takes place in Africa, the Middles East, Europe, and South-East Asia and affects 200 million women. While women who are victims of FGM have received asylum under the category of membership in a particular social group in the United States, there are other types of GBV, and the social group category does not include all forms of GBV. The use of rape as a weapon of war is another example. Throughout history, rape has been used “as a tool to punish, terrorize and destroy populations.” Many groups use rape to demonstrate power and destabilize communities. Domestic violence is another example of how women experience persecution because of their gender. According to the World Health Organization (WHO), approximately 30% of women “who have been in a relationship report that they have experienced some form of physical and/or sexual violence by their intimate partner in their lifetime.” Since domestic violence is viewed as a private problem, it is harder for women to claim persecution under the current categories in US law. This arbitrarily distinguishes domestic violence from other brutal crimes, such as murder, simply because it takes place in a home. Given the magnitude of violence against women, U.S. asylum law should be expanded to include gender-based oppression as a form of persecution so that victims are eligible to claim asylum.
Some may believe that if U.S. asylum protection incorporates gender, there will be few cases in which someone can’t claim asylum because gender is a broad category that extends to a variety of people. It is important to note that if gender-based persecution is included, this does not necessarily mean the number of people granted asylum will increase, as people are still required to prove that they have endured or fear persecution. Rather, it just expands the criteria so that those that face gender-based oppression can seek asylum based on the persecution they face.
Gender oppression should be considered its own category in U.S. asylum law since countless women across the world currently suffer from it. This is an issue of equality and justice between men and women. The exclusion of gender oppression in asylum law ignores the various ways a woman’s experience differs from a man’s and limits women’s ability to live equally; men, for example, do not have to fear systematic abuse from practices like FGM. By incorporating gender-based oppression into the framework of asylum rights, the burdens that countless women unfairly face solely because of their gender could be alleviated.