WHAT IS GENDER BASED ASYLUM?
Since the mid-1990s, there has been increasing attention paid to the fact that many women around the globe experience gender-specific types of persecution, and that they could qualify for refugee protection under U.S. law. Gender-based persecution (MISTREATMENT) includes practices such as:
- Human Trafficking for Prostitution or
- Sexual Slavery
- Domestic Violence
- Female Genital Cutting (FGC)
- Forced Marriage
- “Honor” Killings
- Forced Abortion or Reproductive
- Rape and other Sexual Violence
As more gender-based asylum claims are raised in the U.S., immigration judges and the courts have been forced to confront a range of issues related to persecution that is unique to women and girls, as well as other groups such as gays and lesbians, children, and the disabled. Women fleeing gender persecution often arrive in the U.S. only to be told that they do not qualify for asylum, and that they will be forcibly returned to the very countries from which they have fled for their lives.
BASED ON A RESEARCH CONDUCTED AND COMPLILED BY CENTER FOR GENDER AND REFUGEE STUDIES (CGRS):
At least one out of every three women around the world has been beaten, coerced into sex, or otherwise abused in her lifetime—usually by someone known to her. Each year, an estimated 700,000 to two million women and girls are trafficked internationally—many for sexual exploitation. Women account for nearly half the 40 million people living with HIV/AIDS worldwide; in sub-Saharan Africa 57% of adults with HIV/AIDS are women. It is estimated that about 130 million women worldwide have undergone female genital cutting (FGC), with an additional two million girls and women undergoing the procedure every year. Out of 550 million working poor in the world, an estimated 330 million are women. Two-thirds of the world’s 875 million illiterate adults are women, and half of the children in the world who are not in school are girls.
Under international and United States law, a refugee is defined as a person with a “well-founded fear of persecution” for reasons of race, religion, nationality, political opinion, or membership in a particular social group. Based on this language, the refugee definition is commonly understood to include three essential elements:
(1) there must be a form of harm rising to the level of persecution, inflicted by a government or by individuals or a group that the government cannot or will not control;
(2) the person’s fear of such harm must be well-founded — the U.S. Supreme Court has ruled that a fear can be well-founded if there is a one-in-ten likelihood of its occurring;
(3) the harm, or persecution, must be inflicted upon the person for reasons related to the person’s race, religion, nationality, political opinion or membership in a particular social group (the nexus).
The international definition of “refugee” has been interpreted primarily in the context of male asylum-seekers, to the prejudice of women refugees. A classic image of a refugee is that of the male political dissident, e.g., Andrei Sakharov of the former Soviet Union, who was persecuted for denouncing totalitarianism. In such a case an adjudicator has little difficulty recognizing that the harm suffered amounts to persecution and that it was related to one of the five grounds.
The claims of women asylum-seekers often differ from those of men in several respects. First, women often suffer harms which are either unique to their gender, such as female genital mutilation or forcible abortion, or which are more commonly inflicted upon women than men, such as rape or domestic violence. Second, women’s claims differ from those of men in that they may suffer harms solely or exclusively because they are women, i.e., as a result of their gender (such as the policies of the Taliban in Afghanistan). And third, women often suffer harm at the hands of private individuals (such as family members who threaten them with “honor killings” or abusive spouses who batter them), rather than governmental actors.
The distinctions between the more traditional claims of male asylum seekers, and those of women, have often adversely impacted women asylum-seekers. Decision-makers often fail to recognize that harms unique to women — such as forced marriage or honor killings — may constitute persecution. They are also resistant to the developing jurisprudence which recognizes that harms inflicted primarily because of gender may come within the protection of international or domestic refugee law, and that persecution at the hands of private actors can form the basis of refugee protection where there is a failure of state protection.
These developing international human rights and refugee norms provide a basis for extending protection to women asylum-seekers regardless of the distinctions between their claims and the more traditional claims of male applicants. The United Nations High Commissioner for Refugees (UNHCR) has provided guidance in cases of women asylum-seekers and immigration authorities in Canada, the United States and Australia have all issued guidelines for adjudicators .
Notwithstanding these developments, the claims of women asylum-seekers continue to meet denials due to erroneous interpretations of the refugee definition by decision-makers, as well as a fundamental lack of understanding of the applicable human rights norms and the relevant country conditions.
The United Nations High Commissioner on Refugees (UNHCR) and other U.N. bodies have recognized and attempted to address the intersection of gender-based violence and forced displacement since the 1980s.The UNHCR Executive Committee (EXCOM) first issued formal recommendations regarding expansion of the refugee definition to include individuals who have experienced sexual violence or other gender-related forms of persecution in 1991: Office of the United Nations High Commissioner for Refugees, Guidelines on the Protection of Refugee Women, U.N. Doc. ES/SCP/67 (1991). The agency issued more comprehensive guidelines in 2002: UNHCR, Guidelines on International Protection: Gender-related persecution within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, UN Doc. HCR/GIP/02/01, 7 May 2002. The UNHCR Executive Committee has also exhorted states to develop and implement domestic criteria and guidelines regarding protection for women who claim refugee status based on a well-founded fear of gender-related persecution. Several receiving states have since either enacted such guidelines or have amended refugee and asylum legislation to instruct adjudicators to recognize gender-based persecution as a potential ground for refugee protection.
IF YOU ARE A WOMAN AND YOU THINK YOU SUFFERED MISTREATMENT OR SUBJECTED TO INHUMAN TREATMENT OR OPPRESSED IN YOUR HOME COUNTRY AGAINST YOUR WISHES SIMPLY BECAUSE OF BEING A FEMALE YOU MIGHT WANT TO EXPLORE THE POSSIBILITY OF APPLYING FOR ASYLUM IN THE UNITED STATES. IF GRANTED ASYLUM IN THE UNITED STATES THEN YOU WILL BE ABLE LIVE AND WORK OR STUDY LEGALLY IN THE UNITED STATES AND ALSO APPLY FOR A GREEN CARD AFTER ONE YEAR.
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