Why the U.S. Should Add Gender as the Sixth-Ground for Asylum
In 2021, Attorney General Merrick Garland vacated Matter of A-B: a Trump-era decision that denied domestic violence as a viable social group classification for those seeking asylum protection. [1] Albeit a massive step in the right direction, ambiguity surrounding asylum law and whether or not it extends to gender still riddles the immigration system, especially given the rise in Central Americans arriving at the U.S.-Mexico border. [2] For instance, in the case of Gleidy Yessenia Jaco, a Honduran asylum seeker fleeing domestic abuse and repeated death threats, the Fifth Circuit disregarded existing precedent by rejecting her pro se appeal in 2021. [3] Currently, international and domestic law enumerates five grounds on which individuals can plead asylum on account of a “well-founded fear” of persecution: race, religion, nationality, political opinion, or membership in a particular social group. [4] Given that the grounds are outdated, originate from a male-centric context, and do not directly pertain to those escaping gender-specific persecution, membership in a particular social group remains the most commonly applied avenue for migrants fleeing gender-based violence. However, selective criteria under the Board of Immigration Appeals (BIA) make qualifying under these terms difficult, resulting in inconsistent decisions that rely on partisan biases. To address ongoing confusion and provide a more cohesive framework, the United States should add gender as the sixth ground for asylum under its refugee definition.
According to the UN Refugee Agency, gender-based violence refers to “harmful acts directed at an individual based on their gender.” [5] Such actions are motivated by “the abuse of power and harmful norms” and can include genital mutilation, domestic violence, sexual abuse, or forced marriage—to name a few. [6] Though gender-based violence is a universal humanitarian crisis, with 35% of women experiencing physical or sexual abuse, the Economic Commission for Latin America and the Caribbean Latin underscores the continued prevalence of abuse in Latin America. [7] Recently, COVID-19, coupled with the subsequent lockdowns and economic turmoil, has contributed to the rise in domestic abuse cases. [8] Despite its alarming rates, gender-based violence, unlike political and economic stability, is often overlooked when considering push factors amid the influx of migration patterns. Yet since 2020, the U.S.-Mexico border has witnessed an increase in apprehensions, regional mobility, and migrant returns of Central American individuals fleeing various degrees of persecution, including gender-based violence. [9] Therefore, discourse on accommodating asylum seekers should include those seeking protection from domestic violence and other forms of gender-specific persecution.
The definition of a refugee is archaic in its exclusion of gender from the international refugee framework. Asylum law first developed when the 1951 Refugee Convention codified the right to seek asylum and, more importantly, established the principle of nonrefoulement, which effectively prohibits states from returning asylum seekers to a country where they would face persecution. [10] However, in defining a refugee, the Convention limited its application to displaced male Europeans after the Second World War. [11] In the decades that followed, the 1967 Optional Protocol Relating to the State of Refugees removed geographic and temporal restrictions, broadening the definition's scope; yet, it still failed to refer to gender. [12] While appearing gender-neutral, the previous male-orchestrated doctrines’ recognition of the role of nationality, race, and religion, among others, in persecution but not gender is indicative of the continued exclusion of women in immigration law. Though insufficient for the long-term, in response to this exclusion, the United Nations High Commissioner for Refugees (UNHCR) implemented guidelines for addressing gender-based claims in 1985; affirming that women persecuted on account of their gender could be classified under a particular social group (PSG)—one of the five enumerated grounds. [13] However, the guidelines are non-binding in nature. More recently, the New York Declaration for Refugees and Migrants and the subsequent 2018 Global Compact on Refugees signaled a first step toward reforming international law by declaring a commitment to refugee-related human rights issues, including gender-based violence, but took the same non-binding approach as the UNHCR’s guidelines. [14]
As a result, in the absence of an objective international system, states approach the matter using subjective terms. Though some exceptions, like Romania, incorporate gender as a ground for persecution, the majority of European states fail to do so. [15] For example, while Spain offers some level of codified protection, they do not list gender as a ground for asylum. [16] Meanwhile, Sweden’s refugee definition includes sex and sexual orientation alongside a series of gender-based asylum guidelines; nevertheless, the government has since implemented policies that aim to reduce the number of asylum seekers. [17] Overall, the European Parliament finds that courts disproportionately interpret gender-based claims through the PSG, which it defines as “a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society.” [18] However, under those legal parameters, the binding characteristic must be innate or immutable, and the respective society must perceive the group as cognizable. [19] Considering that such standards are subjective and leave the metrics to gauge applicability up to states’ discretion, decisions are often inconsistent across states. Thus, the lack of a secure path to refuge leaves victims of gender-based violence in limbo, further emphasizing the need for a category that promotes objectively-determined decisions in place of the current biased standards.
Amid the lack of a unified international standard, the United States has fallen short of inspiring reform. Domestically, a series of BIA cases have rendered the current system ineffective at extending a legal avenue to asylum seekers fleeing gender-specific persecution. Under the Refugee Act of 1980, the United States first established its definition of a refugee, which complied with the 1967 Refugee Protocol’s obligations and adopted the Convention's definition. [20] Shortly after, Matter of Acosta, the monumental 1985 BIA case, gave space to gender-based claims in the refugee definition, which, in the following decade, became recognized as a viable route for seeking asylum. [21] In Matter of Kasinga (1996), the BIA extended asylum to a woman fleeing forced marriage and genital mutilation within the parameters of a PSG they found to be cognizable based on her gender and tribal membership. [22] Another development in gender-based asylum jurisprudence came in the Matter of R-A-, a 1999 BIA case that denied asylum to a Guatemalan woman because her proposed social group, "Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination—," was not particular. [23] The absence of a concrete legal metric led to inconsistent decisions in the following decade, leaving the well-being and security of asylum-seekers to the whims of a partisan system.
Most notably, under the Trump administration, former Attorney General Jeff Sessions held in Matter of A-B- (2018) that individuals fleeing domestic abuse could not seek asylum by claiming membership to a gender-based PSG. [24] In short, Ms. A-B- fled El Salvador to seek refuge in the United States following repeated sexual and physical violence—including multiple death threats—at the hands of her ex-husband, with whom she shared three children. [25] However, the immigration judge denied her asylum request, stating that her PSG, “El Salvadoran women who are unable to leave their domestic relationships where they have children in common with their partners,” did not satisfy the relevant asylum requirements. [26] Ms. A-B- later appealed to the higher court, and in 2016, the BIA reversed the previous decision and ordered that she receive asylum status. [27] Although Attorney General Merrick Garland vacated Matter of A-B- two years later, the case exemplifies the difficulty of using membership to a PSG as a legal avenue given decisions are subject to judicial discretion and administrative partisanship. [28] A system reliant on subjectivity poses an immeasurable burden for women left with no consistent strain of prior decisions to trust. By including gender as the sixth ground, the United States would offer a more unified framework for issuing verdicts and, thus, create a dependable precedent. Considering the issue extends beyond domestic borders, international law should also incorporate the sixth ground. However, in the meantime, a more feasible route would be for the United States to promote broader reform by taking the initiative as a global leader.
In summary, both domestically and abroad, refugee definitions and their limited scope make the asylum process unreliable for gender-based violence claims. As such, it is of political and social imperative that the United States extend its refugee definition to address ongoing gender-specific persecution by adding gender as the sixth ground for asylum. A sixth ground, in its application, would provide a more intuitive approach to simplify current legal confusion while taking a step toward addressing ongoing femicides in Central America and overseas. Rather than forcing women into outdated, male-centric categories, this new route would recognize the existence of gender-based oppression and create a legal instrument consistent with the UNHCR's guidelines. Though some argue in favor of clarifying the PSG definition via legislative action, doing so would still require asylum seekers to explain why they faced domestic violence under domestic law, rather than simply citing their gender. [29] Another common argument against a sixth ground is the concern that it would invite all victims of gender-based violence to seek protection. However, the expanded definition does not remove the many obstacles those who choose to journey to the border will encounter. Additionally, the sixth ground would still require that the asylum seeker meet the burden of proof, demonstrating through a preponderance of the evidence that they would be at high risk of persecution if they were to return to their home country.
Ultimately, introducing the sixth ground would establish a framework that considers the unique experiences of women while reinforcing a commitment to address the current system's inefficiencies—inspiring an international course of action against gender-based violence.
Edited by Muna Ali
Sources:
[1] Matter of A-B-, 28 I&N Dec. 307, 307 (A.G. 2021).
[2] Paul Angelo, “Why Central American Migrants Are Arriving at the U.S. Border,” Council on Foreign Relations, March 22, 2021, https://www.cfr.org/in-brief/why-central-american-migrants-are-arriving-us-border.
[3] Jaco v. Garland, 2, 18 (5th Cir 2021).
[4] Immigration and Nationality Act, 8 U.S.C. § 1101 (1952).
[5] “Gender Based Violence,” United Nations High Commissioner for Refugees, https://www.unhcr.org/en-us/gender-based-violence.html.
[6] “Gender Based Violence.”
[7] “Violence Against Women,” World Health Organization, March 9, 2021, https://www.who.int/en/news-room/fact-sheets/detail/violence-against-women; “Femicide or Feminicide,” Gender Equality Observatory for Latin America and the Caribbean, https://oig.cepal.org/en.
[8] “Measuring the Shadow Pandemic: Violence Against Women During Covid-19,” UN Women, 2021, https://data.unwomen.org/sites/default/files/documents/Publications/Measuring-shadow-pandemic.pdf.
[9] “Migration Data in Central America,” Migration Data Portal, October 7, 2021, https://www.migrationdataportal.org/regional-data-overview/migration-data-central-america.
[10] U.N. Convention Relating to the Status of Refugees, adopted July 28, 1951, 189 U.N.T.S. 137.
[11] U.N. Convention Relating to the Status of Refugees, adopted July 28, 1951, 189 U.N.T.S. 137.
[12] Protocol Relating to the Status of Refugees, adopted Jan. 31, 1967, 606 U.N.T.S. 267.
[13] “Guidelines on International Protection,” United Nations High Commissioner for Refugees, May 2, 2002, https://www.unhcr.org/3d58ddef4.pdf.
[14] General Assembly resolution 71/1, New York Declaration for Refugees and Migrants, A/RES/71/1, Sept. 19, 2016.
[15] Hana Cheik Ali, Christel Querton, Elodie Soulard, “Gender Related Asylum Claims in Europe,” European Parliament, May 2012, https://www.europarl.europa.eu/RegData/etudes/etudes/join/2012/462481/IPOL-FEMM_ET(2012)462481_EN.pdf.
[16] “Right to Asylum Guide, Asylum and Gender,” Comisión de Ayuda al Refugiado en Euskadi, https://cear-euskadi.org/guia/en/asilo-y-genero-2/.
[17] “Countries with Asylum/Refugee Laws That Explicitly Protect those Fleeing Gender-Based Persecution,” Tahirih Justice Center, 2021, https://www.tahirih.org/wp-content/uploads/2021/03/Appendix-1-List-of-other-countries-with-gender-listed-in-asylum-laws.pdf.
[18] Ali, Querton, Soulard, “Gender Related Asylum Claims in Europe.”
[19] Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014).
[20] 8 USC § 1157 (1980).
[21] Matter of Acosta, 211 (BIA 1985).
[22] Matter of Kasinga, 357 (BIA 1996).
[23] Matter of R-A-, 24 I&N Dec. 629, 629 (A.G. 2008).
[24] Matter of A-B-, I&N Dec. 316, 316 (A.G. 2018).
[25] Matter of A-B-, I&N Dec. 316, 321 (A.G. 2018).
[26] Matter of A-B-, I&N Dec. 316, 321 (A.G. 2018).
[27] Matter of A-B-, I&N Dec. 316, 321 (A.G. 2018).
[28] Matter of A-B-, 28 I&N Dec. 307, 307 (A.G. 2021).
[29] “Adding Gender as a Sixth Ground of Asylum,” Tahirih Justice Center, https://www.tahirih.org/wp-content/uploads/2021/04/FAQs-Adding-Gender-as-a-6th-Ground-of-Asylum_-1.pdf.