Protection From Gender Persecution

Gender Based Violence & the Issue of Protection

Professor Karen Musalo

Center for Gender & Refugee Studies

U.C. Hastings, College of the Law

October 2010

The International Refugee Definition: the 1951 Convention and its 1967 Protocol

An individual who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” (asylum)

An individual whose life or freedom would be threatened for reasons of race religion, nationality, membership of a particular social group or political opinion (withholding of deportation)

U.S. adoption of International Refugee Definition

• 1980 Refugee Act – essentially adopted the international refugee definition; US ratified Refugee Protocol in 1969; enacted legislation in 1980.

Elements to prove

• A form of harm sufficiently grave (persecution or threat to life or freedom)

• On account of one of 5 grounds (race, religion, nationality, political opinion, or membership in a particular social group

• Government responsibility

Controversy over Protection in Cases of Gender Violence

• Persecution or a cultural or religious practice?

Harms can include female genital cutting, forced marriage, repressive social norms, trafficking for sexual exploitation, rape during armed conflict

Controversy, cont’d

• Refugee Act requires “nexus” to race, religion, nationality, political opinion, or membership in a particular social group – gender is not one of the five grounds

Controversy, cont’d

• Harm is often not by government, but by society (cultural norms of FGC, repressive social norms), family (forced marriage) or spouse (domestic violence)

UNHCR Guidance – international norms

1. Harm as persecution - Gender-related human rights violations should be recognized as persecution.

Look to developments in human rights movement which recognize “women’s rights are human rights”

UNHCR Guidance – international norms

1979 U.N. adoption of Convention on the Elimination of All forms of Discrimination against Women (CEDAW)

1973 Vienna Declaration and Programme of Action

UNHCR Guidance – international norms

1993 adoption of Declaration on the Elimination of Violence against Women – recognized gender-based violence as an imperative human rights issue; governments are responsible for remedying violence against women, and violations cannot be justified under “custom, tradition, or religious consideration.”

UNHCR Guidance

2. Nexus - Gender is not one of the five grounds, but it can be encompassed within the “particular social group” ground

3. Persecution need not be directly by the State, if it can be shown that the State is unable or unwilling to protect

UNHCR Guidance

• UNHCR called on States to issue guidelines for their adjudicators on gender claims

United States – Advances and Retreats from Protection

• In response to call by UNHCR for States to issue guidance, U.S. did so in 1995

• In that same year an immigration judge in Philadelphia denied asylum to a young woman from Togo fleeing female genital cutting (FGC)

Female Genital Cutting (FGC)

• Issues of terminology – female genital mutilation (FGM), female genital cutting (FGC)

• Female “circumcision” – but female ritual not analogous to male circumcision

Nightline

Matter of Kasinga

• In 1996 the Board of Immigration Appeals (BIA) reversed the IJ and granted asylum - – case is known as Matter of Kasinga.

• FGC is persecution even though it is a cultural rite

• It was inflicted on account of “social group membership”

• Government was unable and unwilling to protect

US: Retreats from Protection

• Rody Alvarado, victim of brutal battering from Guatemala

• IJ granted in 1996

• In 1999 the BIA – same court that granted to Fauziya Kasinga – reversed the grant of asylum to Rody Alvarado, in a case known as Matter of R-A-

Breaking Free

Significant Developments After BIA’s Decision in Matter of R-A-

• 2000 DOJ issued proposed regs – never finalized

• 2001 Janet Reno vacated Matter of R-A-, with order of remand

• 2003 John Ashcroft certified to himself

• 2004 DHS filed a brief urging asylum for Rody Alvarado

• 2005 John Ashcroft remands the case to BIA, with order to decide when regs finalized

• 2008 Michael Mukasey certifies the case to himself, with order to not wait for the finalization of regs, but to decide the case pursuant to BIA, and other relevant precedent; case is remanded back to IJ

• 2009 An immigration judge in San Francisco grants asylum to Rody Alvarado

The Case of Ms. “L.R.”

• Building on advance in Rody Alvarado case, the government (Department of Homeland Security) argued in favor of asylum in the case of Mexican asylum seeker, Ms. “L.R.” and her sons

• They were granted asylum in July 2010

Female Genital CuttingFear of Future

FGC – threat of future constitutes a basis

Matter of Kasinga – women of the Tchamba Kusuntu tribe who have not been subject to FGC and who oppose it

Fact that laws exist prohibiting it are not dispositive; conditions on the ground as established by country conditions evidence and experts should be basis for determination

Past Female Genital Cutting

When can past Female Genital Cutting be the Basis for a Claim?

Well-established principles on past persecution apply to answer this question.

The Past Persecution Presumption8 C.F.R. 208.13

• Past persecution gives rise to a presumption of a well-founded fear of persecution on the same enumerated ground

• In cases involving past persecution, the burden shifts to the government to rebut the presumption by a preponderance of the evidence

Past Persecution Presumption, cont’d

In order to rebut, the government must establish that:

-there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear

-the applicant can avoid persecution through reasonable relocation (reasonableness requires consideration of numerous factors including ongoing civil strife, geographical limitations, and social and cultural restraints, including age, gender, health, and social and family ties)

“Humanitarian” Asylum

In cases where the presumption has been rebutted, asylum can still be granted in the exercise of discretion upon a showing of:

Compelling reasons for being unwilling to return…arising out of the severity of past persecution

Applicant has established a reasonable possibility of “other serious harm” upon removal

FGC Claims involving Mothers (Parents) and Daughters

• Involves cases of parents claiming asylum because of feared FGC of daughter

• Claims can meet the refugee definition, or qualify for “humanitarian” asylum applying well-established principles of law

FGC Claims involving Mothers (Parents) and Daughters

Cont’dAnalytical approach:

1. Forcible FGC of the child against the parent’s will causes the parent such severe anguish that it constitutes persecution (persecution encompasses psychological harm, persecution of beloved family member can be persecution to self) Abay v. Ashcroft, 368 F. 634 (6th Cir. 2004). Other circuits are open to this approach – notably Eighth and Ninth

Some circuits have denied parent-child claims but they are very fact-specific, and distinguishable from the cases in which relief has been granted

FGC Claims involving Mothers (Parents) and Daughters

Cont’d

Analytical approach:

2.Parent will oppose FGC of child, will seek to protect the child from it, and will suffer severe ostracism or discrimination, or physical harms, which will constitute persecution

Many cases involve other forms of Harm

• Forced marriage

• Fear of honor killing

• Repressive social norms

• Trafficking for sexual exploitation

• Rape during armed conflict

Ongoing Controversy

• Basis for opposition to claims

Belief that international and domestic law was not intended to provide protection under these circumstances

Fear of Floodgates

Fear of Floodgates is Unfounded

• Canadian experience

• US experience post-Kasinga

• Reasons why flood of asylum seekers does not materialize: legal and practical barriers to seeking asylum in the U.S., or other refugee-receiving countries

Addressing the Root Cause of Refugee Flows

• Violation of rights is at the root of refugee flows

• Violence against women in Latin America as an example

• Prevalence of violence / impunity for commission of violence / phenomenon of “femicides”