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WHAT IS GENDER BASED ASYLUM?

 

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
  • Sterilization
  • 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.

 

THE LAW:

 

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.

 

FOR MORE INFORMATION AND CONFIDENTIAL CONSULTATION CONTACT IMMIGRATION ATTORNEY :

HUMA KAMGAR, ESQ.,

305 BROADWAY 14TH FLOOR

NEW YORK, NY 10007

CALL TODAY FOR AN APPOINTMENT AND CONSULTATION

212-323-6887

 

VISIT:  http://www.asylumanddeportation.com/

 

 

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ATTORNEY HUMA KAMGAR: WAS YOUR ASYLUM CASE DENIED BY THE IMMIGRATION JUDGE AND YOU WERE FOUND TO BE “FRIVOLOUS”???

HUMA HANRATTY KAMGAR, New York Immigration Attorney, won motion to reconsider on appeal with the Board of Immigration Appeals  (BIA) having reversed and vacated Immigration Judge (IJ) finding that the asylum applicant had filed a “frivolous” application nine years ago. 

For all asylum  applications filed on or after April 1, 1997, an application is subject to the provisions of section 208(d)(6) of the Act only if a final order by an immigration judge or the Board of Immigration Appeals specifically finds that the alien knowingly filed a frivolous asylum application.

The Immigration forms and Immigration courts routinely provide asylum applicants with Warning Against Filing a Frivolous Asylum

If you file a frivolous asylum application, you will be PERMANENTLY BARRED from seeking any form of discretionary relief in the United States, including adjustment of status, cancellation of removal, or voluntary departure.
For immigration purposes, an asylum application is frivolous if any of its material elements is deliberately fabricated.
Remember, the credibility of your claim is at issue in an asylum case. What you write in your application, and what you say under oath in an asylum interview or in an immigration court, will decide whether you are a credible person and have acredible claim.

If the immigration judge finds that you have filed a fraudulent asylum application, not only will you have a deportation order that will be difficult to reverse on appeal, but you will never be able to apply for any other form of discretionary relief!
So, if you knowingly submit a fraudulent asylum application, you are subject to the harsh penalty of permanently becoming ineligible for other relief, regardless of sympathetic circumstances.
A frivolous finding is basically a “death sentence” for immigration purposes, so you should never file a frivolous application.
However, if for some reason an Immigration Judge finds that an asylum applicant has filed a “frivolous asylum application” you can challenge that finding later on.
In 2003, an asylum applicant was denied asylum and all other relief and was also slammed by the Immigration judge with a “frivolous finding”. The immigration judge’s finding that the asylum applicant had filed a frivolous asylum application banned the applicant FOREVER from receiving any immigration benefit under the Immigration & Nationality Act. The applicant was ordered deported.
Years later, in 2010 while still in the United states, the applicant met, fell in love and married a U.S. citizen.  When the U.S. citizen wife petitioned for the applicant as her husband to get the green card or adjustment of status it was denies by the Department of Homeland security (DHS). The reason for the denial of adjustment of status petition was the “frivolous finding” of 2003.
In 2011, the applicant and his wife consulted and retained NYC Immigration attorney Huma  Hanratty Kamgar. By a motion to reconsider on appeal, attorney Huma Hanratty Kamgar was able to get the “frivolous finding” reversed and vacated by the Board of Immigration Appeals (BIA). Despite strong opposition by the DHS, immigration attorney Huma Hanratty Kamgar, successfully persuaded the BIA to reverse and vacate the “frivolous finding”.  The BIA stated in pertinent part that “we agree that sua sponte reconsideration of that aspect of our prior order is warranted” “we will sua sponte reconsider and vacate that aspect of our …order affirming  the immigration judge’s frivolous finding.”
Because of successful and  sound legal arguments made by immigration attorney Huma Hanratty Kamgar and the resulting victory enabled the applicant to file for a green card based on marriage to a U.S. citizen and he will be able to adjust status without leaving the United States.
Also Check out A successful motion to Reopen made by Huma Kamgar wherein the asylum applicant was denied without a hearing more then ten years ago and violated voluntary departure order…Upon a motion to eopen based on complexed legal basis the case was reopened by the immigration judge for a new hearing and a new asylum claim!!!!!!
Click on the following link:
 If you or any one you know is facing similar predicament please do not delay in despair. Help may be just a phone call away.
Contact:
NYC IMMIGRATION ATTORNEY HUMA HANRATTY KAMGAR at
212-323-6887
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