Gender-Based Persecution as a Basis for Asylum in the United States: Structural and Procedural Defects Jacquelyn Grippe* INTRODUCTION

We are a nation of immigrants. The laws and policies affecting the ways in which the United States regulates non-citizens operating within its borders have a complex and conflicting history. In recent history, regulation of migration has changed dramatically as a result of the attacks on September 11, 2001. The governments systematic recognition of refugees from other countries who are granted temporary and permanent residency in the U.S. for humanitarian reasons is a relatively new aspect of U.S. law.1 The experience of non-citizen women who have incurred genderrelated violence in other countries and have subsequently sought asylum in the U.S. has become a central issue in U.S. refugee law. Such women must confront structural and procedural defects within U.S. laws related to asylum. Refugee jurisprudence has been further complicated by governmental restructuring that occurred after September 11, 2001. After 9/11, there has been an anti-immigrant fear in the U.S. that continues to permeate U.S. domestic and foreign policy. Although post-9/11 policies have largely been aimed at protecting the U.S. from terrorist attacks, their effects on laws relating to immigration and asylum have exceeded such intentions. Non-citizen women who have

* Impunity Watch, Notes and Comments Editor, 2011-2012; J.D. Candidate, Syracuse University College of Law, 2012; M.A. International Relations Candidate, Maxwell School for Citizenship and Public Affairs, 2012; B.A. Cultural and Interdisciplinary Studies, Antioch College, 2006. I want to thank my wonderful boyfriend AJ, my mother Terry, and my sister Elizabeth for all of their love and patience through this roller coaster ride called law school. Additionally, I would like to thank Prof. Culbertson for all of his help and guidance. Lastly, I would like to thank the staff of Impunity Watch for their hard work.
1

The Refugee Act of 1980, 8 U.S.C 1521 (1980).

1

experienced gender-based violence have historically faced unique barriers in their attempts to attain asylum in America, and those barriers have been exacerbated through legislation and policy enacted by the U.S. government after 9/11. I. DOMESTIC LAW RECOGNIZES THE RIGHT TO REFUGEE STATUS The American legal system grants systematic refugee status to non-citizens for humanitarian purposes.2 The constitutional right to regulate laws pertaining to asylum is vested in Congress.3 Since 9/11, Congress has legislatively enhanced the authority for judicial review of asylum claims under government agencies within the executive branch. A. Constitutional Authority The Constitution explicitly vests Congress with the authority to regulate foreign commerce and, [t]o establish a uniform Rule of Naturalization.4 Although the Constitution does not expressly grant Congress the authority to regulate immigration, the Supreme Court has recognized it as having plenary power to set the conditions for entry into the country, the circumstances under which a person can remain, and the rules for becoming a citizen.5 The Court has held that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.6 Furthermore, [w]hen Congress prescribes a

2 3 4 5

Id. U.S. CONST. art 1, 8. Id.

ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 283 (VICKI BEEN et al. eds., 3rd ed. 2006).
6

Fiallo v. Bell, 430 U.S. 787, 792 (1977).

2

procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.7 B. Post-9/11 Legislation The Homeland Security Act of 2002 affected a dramatic restructuring of the U.S. governments strategy for monitoring peoples within U.S. territories, particularly those who are not native born U.S. residents. The Homeland Security Act created the Department of Homeland Security (DHS), which absorbed the Immigration and Naturalization Services (INS).8 With the elimination of the INS, the DHS became a supervising umbrella agency responsible for regulating the various agencies that were once embodied within the INS.9 These agencies included the U.S. Citizen and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement, and the U.S. Customs and Border Protection.10 While the Homeland Security Act represented a larger reorganization of national security policy, Congress passed additional measures with more specific goals. The USA Patriot Act of 2001, for example, increased border security.11 The Real ID Act of 2005 (Real ID),

restructured judicial policies relating to immigration.12 Although these post 9/11 policies focus

Michael A. Scaperlanda, Immigration Law: A Primer, 2009 FED. JUD. CTR. (quoting Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950)), available at http://www.fjc.gov/public/pdf.nsf/ lookup/immlaw09.pdf/$file/immlaw09.pdf.
8 9 10 11 12

Id. at 12. Id. Id. Id. Scaperlanda, supra note 7, at 14.

3

on combating terrorism, they also impact non-citizen women who experience gender-based violence.13 Real ID has altered the experience of non-citizen women in the U.S. because it contains multiple provisions that modify the asylum process in ways that conflict with the U.S. Gender Asylum Guidelines.14 The legislation implements asylum altering measures, in addition to other provisions, that impose heightened standards for state identification cards, enhanced security measures at U.S. borders, amend grounds for inadmissibility to and removal from the U.S., and limit judicial review for orders of removal.15 Additionally, Real ID makes the process of review more stringent through the implementation of heightened standards of review and by giving more discretion to Immigration Judges (IJs).16 Critics of Real ID argue that the provisions amend U.S. asylum policy in a way that imposes limitations on all applicants' access to asylum protection through the implementation of more difficult, unpredictable and unreasonable obstacles to establishing the requisite well-founded fear of persecution.17 In addition to the implementation of specific legislation after 9/11, the creation of the DHS restructured the governments approach in dealing with immigration and asylum. The goal of the restructuring continues to be the creation of a national strategy for homeland security, providing a framework to meet the agency goals of: (1) preventing and disrupting terrorist attacks; (2) protecting the American people, the critical infrastructure, and key resources; (3)
13 14

8 U.S.C. 1103 (2006).

Aubra Fletcher, The REAL ID Act: Furthering Gender Bias in U.S. Asylum Law, 21 BERKELEY J. GENDER L. & JUST. 111, 118 (2006).
15 16 17

Id. at 111. Id. Id. at 112.

4

responding to and recovering from incidents that do occur and; (4) continuing to strengthen the foundation to ensure long-term success.18 However, the restructuring that has resulted from the creation of the DHS, particularly the restructuring within the Department of Justice (DOJ), has had unique consequences for asylum seekers whose claims are rooted in allegations of genderbased violence. C. Judicial Review The Executive Office for Immigration Review (EOIR) operates within the DOJ and is charged with adjudicating immigration cases.19 The office operates under the authority of the U.S. Attorney General, within the executive branch, to conduct immigration court proceedings, appellate reviews, and administrative hearings.20 The EOIRs is main function includes deciding whether foreign-born individuals, who are charged by the [DHS] with violating immigration law, should be ordered removed from the United States or should be granted relief or protection from removal and be permitted to remain in this country.21 The EOIR is comprised of three main components: The Office of the Chief Immigration Judge (OCIJ), the Board of Immigration Appeals (BIA), and the Office of the Chief Administrative Hearing Officer (OCAHO). The OCIJ has over has more than 235 IJs who conduct administrative court proceedings or removal proceedings in fifty-nine immigration

18

Dept of Homeland Sec., THE NATIONAL STRATEGY FOR HOMELAND SECURITY (Oct. 2007), http://www.dhs.gov/xabout/history/gc_1193938363680.shtm (last visited Dec. 10, 2010).

19

U.S. DEPT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, http://www.justice.gov/eoir/index.html (last visited Dec. 10, 2010).
20 21

Id. Id.
5

courts nationwide.22 The BIA acts as the appellate component within the EOIR structure, reviewing appeals of IJ decisions.23 The OCAHO primarily hears cases pertaining to

immigration and employment, and does not hear cases pertaining to removal proceedings.24 Those who seek asylum or the withholding of removal can do so affirmatively through a USCIS asylum officer or defensively as part of a removal hearing before an IJ.25 If the claim for asylum is denied, the applicant can seek judicial review within the EOIR.26 If both the OCIJ and the BIA deny an application, a non-citizen applicant can seek review from the U.S. Court of Appeals. The circuit courts give great deference to the decisions made by the EOIR.27 Although the circuit courts may remand a case in which the BIA issued a ruling contrary to the law, the final determination of the applicants asylum claim should be remanded to the BIA.28

22 23 24 25

Id. See id. See U.S. DEPT OF JUSTICE, supra note 19.

U.S. CITIZENSHIP & IMMIGRATION SERV., http://www.uscis.gov/portal/site/uscis/menuitem. 5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b1b2549bf0683210VgnVCM100000082ca60 aRCRD&vgnextchannel=f39d3e4d77d73210VgnVCM100000082ca60aRCRD (last visited Apr. 10, 2012).
26 27

Id.

Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 310 (2007) (interpreting Gjerazi v. Gonzales, 435 F.3d 800 (7th Cir. 2006); Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004)).
28

Id. (citing INS v. Ventura, 537 U.S. 12 (2002)). (The Supreme Court held that the 9th Circuit erred in reversing a decision from the BIA denying a claim for asylum. The Supreme Court noted that district courts should generally remand cases to agencies for decision of fact when that agency is acting within the scope of a statutorily mandated authority.).
6

The EOIR structure violates the separation of powers doctrine. The U.S. Constitution sets forth a framework where the legislature creates the laws, the executive enforces the laws, and the judiciary interprets the laws. The DHS restructuring meant that the EOIR was absorbed into the INS framework within the executive branch. Administrative courtscourts within the executive branch that are charged with the regulatory administrative law applying to public officials and public agenciesare not unique to the DHS structure. However, the restructuring of the EOIR within the DHS provides a one stop shop for all immigration matters. Because the restructuring allows the EOIR to both interpret and administer U.S. immigration law, it obscures the boundary between executive and judicial authority. Real ID is a congressional effort to streamline various immigration review processes that placed significant limitations on the possibility for judicial review of asylum claims in federal district courts.29 Real ID stripped federal district courts of the jurisdiction authorizing their review of important issues related to removal orders including the authority to review agency judgments that grant or deny waivers of inadmissibility related to crime and fraud, review of decisions regarding cancellation of removal pursuant to the Immigration and Naturalization Act (INA) 240(A) and 240(B), and the review of agency discretionary decisions.30 Although Real ID does acknowledge the federal courts jurisdiction over Constitutional questions and questions of law, certain asylum issues requiring discretionary judgmentlike whether an applicant has demonstrated exceptional and unusual hardshiphas been deemed unreviewable by the

29 30

Scaperlanda, supra note 7, at 11-12, 18. Id. at 10 (citing 8 U.S.C.A. 1252 (2005)).
7

federal courts.31 The federal courts, in interpreting a component of Real ID, have noted the exceptional deference given to the executive branch by Congress, stating that, The statutory language indicates that the decision is left to the discretion of the Secretary [of Homeland Security]. The only language that indicates that the discretion could be limited is the good and sufficient cause phrase. However, when read in context and as a whole, the statute makes clear that Congress delegates to the Secretary the decision to determine what constitutes good and sufficient cause. . . . Congresss intent is apparent: the good and sufficient cause is what the Secretary deems it to be.32 With the passage of Real ID, the legislatures grant of authority to the executive branch has eradicated much of the judicial function, hindering the constitutional process of checks and balances. Although attempting to seek uniformity in the adjudication of asylum claims, Real ID actually threatens the uniformity of these decisions through the grant of increased discretion to IJs.33 Studies have suggested that the assessment of asylum applications by IJs is not uniform, and that the merits of the application actually have very little correlation to their success.34 Rather, the success of asylum applications appear to depend to a large extent on the identity, personal characteristics, and prior work experience of the adjudicator, as well as on whether or not the asylum applicant had representation or dependents in the United States.35 Real ID expands the opportunity for these types of discretionary rulings by IJs through the abrogation of precedential decisions, which gave applicants the benefit of the doubt in providing evidence to

31 32 33 34 35

Id. at 15 (quoting De La Vega v. Gonzales, 436 F.3d 141, 146 (2d Cir. 2006)). Id. at 15-16 (quoting Ghanem v. Upchurch, 481 F.3d 222, 224 (5th Cir. 2007)). Fletcher, supra note 14, at 124-125. Id.; Ramji-Nogales et al., supra note 27, at 303. Ramji-Nogales et al., supra note 27, at 303.
8

corroborate credible testimony.36 The new standard implemented through the passage of Real ID mandates that there is no presumption of credibility, deviating from past precedent.37 Real ID further allows the trier of fact to weigh credible testimony along with other evidence in determining whether the applicant has met his or her burden, giving the IJs extensive opportunity and ability to interpret different pieces of evidence and testimony subjectively.38 The IJs analysis of asylum claims predicated on gender-based violence can be further complicated by an IJs subjective conceptions of gender and violence. This suggests that the due process

requirements of the Fifth Amendment, which ensure a standardized means of adjudication as opposed to an arbitrary analysis subject to bias, are not adhered to in the EOIR process.39 II. ASYLUM LAW AND PROCEDURE U.S. law sets forth specific classification schemes for categorizing citizens, non-citizens, and immigrants. Domestic asylum law provides a means for the U.S. to grant sanction to noncitizens who have experienced or are evading persecution.

36

Fletcher, supra note 14, at 125 (quoting Zavala-Bonilla v. INS, 730 F.2d 562, 567 (9th Cir. 1984)).
37

Id. at 124-25 (quoting Real ID Act of 2005, Pub. L. No. 109-13, 101(a)(3)(B)(iii), 119 Stat. 302, 303).
38 38 39

8 U.S.C. 1103 (2006). Ramji-Nogales et al., supra note 27, at 303. See id.
9

A. Immigration The INA categorizes non-citizens in the U.S. as either immigrants or non-immigrants.40 Non-immigrants are required to have a foreign residence which they have no intention of abandoning and must intend to stay in the U.S. only temporarily.41 As such, immigration proceedings are distinguishable from the asylum process. B. Asylum Asylum is defined as a form of discretionary relief for humanitarian purposes to those, who for reasons recognized in the law, would suffer if they were ejected from the asylum country and forced to return home.42 U.S. laws regulating asylum and withholding-of-removal find their origins in the 1951 United Nations Convention Relating to the Status of Refugees, as amended by the 1967 United Nations Protocol on Refugees.43 Both the 1951 Convention and the 1967 Protocol emphasize the non-refoulement standard as a core principle of refugee law, mandating that no party shall return a person to a country where they will be persecuted.44 Although the U.S. ratified the U.N. Protocol on Refugees and agreed to adhere to the international refugee protection standards in 1967, Congress did not formally implement the policies until the 1980 enactment of the Refugee Act.45 INA 101(a)(42), 208, and 241(b)(3)
40 41 42

Scaperlanda, supra note 7, at 47. Id.

DIANE KIESEL, DOMESTIC VIOLENCE: LAW, POLICY, AND PRACTICE 1184 (Matthew Bender, LexisNexis) (2007).
43 44

Id. at 1187.

Stephen Knight, Asylum from Trafficking: A Failure of Protection. Immigration Briefings, July 2007.
45

KIESEL, supra note 42.

10

are the most relevant statutory provisions addressing asylum and withholding of removal, which are the two forms of relief for refugees within U.S. borders addressed within the Refugee Act.46 To qualify for asylum one must demonstrate that she is a refugee. The INA defines a refugee to include: Any person who is outside any country of such persons nationality . . . and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.47 Persons inside the U.S. or arriving at U.S. boarders may be eligible for asylum if they fall within the statutory definition of a refugee.48 Although the application for asylum is treated as an application for withholding of removal under INA 241(b)(3), the two forms of relief have different implications for the recipient.49 While receipt of asylum allows non-citizens to stay in the U.S. and apply for a visa after one year, refugees who are granted withholding of removal receive less protection. This is because withholding of removal merely prevents the U.S. government from requiring the refugee to return to his or her country of persecution, and does little to put a non-citizen on the path to permanent residency.50 The Supreme Court has interpreted the standard for withholding to be more likely than not, or exceeding fifty percent, that the applicants removal from the U.S. would mean that her life or freedom would be threatened on account of her race, religion,

46 47 48 49 50

Scaperlanda, supra note 7, at 118. Id. (quoting 8 U.S.C. 1101(a)(42) (2006)). Id. (construing 8 U.S.C. 1158(b) (2006)). Id. Id.
11

nationality, membership in a particular social group, or political opinion.51 The standard for asylum is far lower, requiring only a demonstration of past prosecution or a well founded fear of future prosecution.52 Although the standard of proof for asylum is lower than withholding of removal, the grant of asylum is discretionary, whereas the grant of withholding is mandatory if the applicant can establish statutory eligibility.53 A non-citizen seeking a grant of asylum based on past prosecution must demonstrate: (1) an incident, or incidents, that rise to the level of prosecution; (2) that is on account of one of the statutorily protected grounds; and is committed by the government or forces the government is either unable or unwilling to control.54 Furthermore, [t]he statutory phrase, on account of, requires an asylum applicant to demonstrate a nexus between the persecution and one of the protected grounds. 55 In Matter of S.E.G, the BIA held that membership in a purported social group requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility.56 The particularity condition requires that the proposed group be distinguishable within its society as a discrete class of persons. 57 Determination of this criterion requires an

51 52 53 54 55 56 57

KIESEL, supra note 42, at 1187. Id. Scaperlanda, supra note 7 (distinguishing 8 U.S.C. 208(b) and 1158(b) (2006)). Knight, supra note 44 (quoting Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003)). Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 482-83 (1992)). Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (BIA 2008). Id. at 584.
12

evaluation of whether the proposed description is sufficiently particular, or is too amorphous.58 The specific criteria for gender-based asylum claims are unclear. In cases like Matter of S.A., Matter of Kasinga, and Matter of R.A., women from other countries have made successful gender-related claims rooted in different types of violence.59 In Matter of S.A., the BIA granted a young Moroccan woman asylum after the court found she presented credible evidence establishing that she suffered past persecution and has a well-founded fear of future persecution at the hands of her father.60 The BIA went on to note that the persecution was, on account of her religious beliefs, which differ from her fathers orthodox Muslim views concerning the proper role of women in Moroccan society.61 The BIA, in overruling the decision of the IJ denying relief, noted a family members testimony regarding the, severity and frequency of the beatings suffered by the respondent and the futility of seeking governmental protection in such instances in light of societal religious mores.62 The court also noted the prevalence of domestic violence in Morocco and the unavailability of legal remedies to women.63

58 59 60 61 62 63

Id. (quoting Davila-Mejia v. Mukasey, 2008 WL 2630085, *3 (8th Cir. 2008)). 8 U.S.C. 1101(a)(42)(A) (2006). In re S-A-, 22 I. & N. Dec. 1328, 1328 (BIA 2000). Id. Id. at 1332-33. Id. at 1333.
13

In Matter of Kasinga, the BIA granted asylum to a women from the Tchamba-Kunsuntu Tribe in Togo who was fleeing female genital mutilation (FGM).64 The court held that a social group is cognizable when defined by gender in combination with other characteristics.65 The BIA first defined the standard of social groups seeking asylum in Matter of Acosta, requiring that the group share an immutable characteristic fundamental to its identity, including sex and ethnicity.66 Here, the court found that young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice, were members of a particular social group with a well-founded fear of persecution.67 In Matter of R.A., Rody Alvarado, a Guatemalan woman who was severely abused by her husband, was granted asylum in the U.S.68 Despite Ms. Alvarados multiple attempts to access government protection in her native country, the legal system in Guatemala continuously denied her protection and refused to intervene in what they perceived as a domestic matter.69 In 1996, after fleeing to the U.S., Ms. Alvarado was granted asylum from an IJ.70 However, the

immigration service chose to appeal and the BIA reversed the IJs decision.71 Subsequently,
64 65 66

See In re Kasinga, 21 I. & N. Dec. 357, 377 (BIA 1996). See id.

Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), modified, Matter of Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987).
67 68

In re Kasinga, 21 I. & N. Dec. at 358.

Documents and Information on Rody Alvarados Claim for Asylum in the U.S., CENTER FOR GENDER & REFUGEE STUDIES, http://cgrs.uchastings.edu/campaigns/alvarado.php (last visited Dec. 8, 2010).
69 70 71

Id. Id. Id.

14

numerous women were denied asylum claims where the cause of action stemmed from genderbased violence.72 In 2001, as a response to public outcry, Attorney General Janet Reno ordered the BIA to issue a new decision regarding Ms. Alvarados asylum claim that was in accordance with proposed DOJ regulations related to asylum claims based on gender.73 Despite support from Renos successor, Attorney General John Ashcroft, Ms. Alvarados claim was left unresolved. 74 The case remained in limbo until 2008, when the third Attorney General to handle Ms. Alvarados asylum claim, Michael Mukasey, ordered the BIA to review the claim to consider the relevant legal precedent that had accumulated over the twelve years since the case commenced.75 On December 10, 2009, Ms. Alvarado was finally granted asylum.76 Although the court did not set out a definitive test for determining asylum claims based broadly on gender-based violence, or specifically on domestic violence, the case has been cited to as providing a roadmap for how female victims of domestic violence can establish a valid asylum claim based on membership to a particular social group.77 Despite the promise of this
72 73 74

Id. Documents and Information on Rody Alvarados Claim for Asylum in the U.S., supra note 68.

Jessica E. Slavin, Attorney General Cancels Stay in Matter of R-A-, the Case of a Guatemalan Woman Seeking Asylum From Severe Domestic Violence, MARQ. UNIV. LAW SCH. FACULTY BLOG (Sept. 30, 2008), http://law.marquette.edu/facultyblog/2008/09/30/attorney-generalcancels-the-stay-in-matter-of-r-a-the-case-of-a-guatemalan-woman-seeking-asylum-from-severedomestic-violence/.
75 76 77

Documents and Information on Rody Alvarados Claim for Asylum in the U.S., supra note 68. Id.

See Karen Musalo, Toward Full Recognition of Domestic Violence as a Basis for Asylum, AM. CONST. SOCY FOR LAW AND POLY BLOG (Aug. 20, 2010), http://www.acslaw.org/acsblog/toward-full-recognition-of-domestic-violence-as-a-basis-forasylum.
15

decision, there is currently no clear test for establishing asylum claims rooted in domestic violence and no evidence that the ruling in Matter of R.A. will extend beyond Ms. Alvarados case. Furthermore, Matter of R.A. is specific to domestic violence cases and does not provide recourse for other gender-based asylum claims. Although Matter of S.A., Matter of Kasinga, and Matter of R.A., have been recognized as victories for gender-based asylum petitions, they do not establish broad, enforceable categories for making successful asylum claims related to gender. Instead, they represent isolated instances of success in a system that does not provide guidelines for analyzing these types of claims. C. Torture Convention In 1994, the U.S. ratified the U.N. Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT).78 CAT requires that signatory states, agree not to expel, to return (refouler) or to extradite a person to another state where there are substantial grounds for believing that she would be in danger of being tortured.79 Although there are similarities between the relief provided by CAT and that afforded by the 1980 Refugee Act, the provisions and applicable standards of review are distinguishable. The relief provided by the ratification of CAT applies a different standard than the Refugee Act in that the torture need not have been inflicted based on a specified protected ground.80 Additionally, the two bodies of law have different requirements related to the role of the governments from which the asylum seekers have fled.81 While the Refugee Act requires that
78 79 80 81

KIESEL, supra note 42, at 1189. Id. See id. See id.
16

the U.S offer protection from persecution either directly imposed by the government or by forces the government is unable or unwilling to control, CAT requires that the asylum seeker fled a government that either inflicted the torture or acquiesced.82 Lastly, there are two different standards of proof set forth. The Refugee Convention has a well-founded fear standard, while CAT sets forth a standard that requires a substantial grounds for believing that one would be in danger of torture.83 Implementation of CAT is mandated by federal regulations.84 Applications for relief pursuant to CAT are the same form as those for asylum applications.85 However, these

applications will normally only be considered if asylum and withholding of removal are unavailable.86 III. DOMESTIC AND INTERNATIONAL LAW RECOGNIZE RENDER-BASED PERSECUTION Both domestic and international law recognize gender-based violence. Although the conception of gender-based violence is broader under international law than domestic law, both frameworks fail to adequately and systematically mandate relief for gender-based persecution. A. Domestic Concept of Gender-Based Violence Although domestic law in the U.S. has recognized some forms of gender-based violence as a viable basis for asylum claims, gender itself does not qualify as a category of persecution

82 83 84 85 86

Id. KIESEL, supra note 42, at 1189. Scaperlanda, supra note 7, at 119. Id. Id.
17

warranting a grant of asylum.87 In 1995, the DOJ created guidelines for asylum officers in deciding gender-based asylum cases.88 The guidelines permit the grant of asylum for genderbased persecutions including rape, sexual violence, violation of fundamental beliefs, and publicly tolerated private acts of violence.89 However, the guidelines only list considerations and

suggestions; they do not include mandatory criteria for evaluation. Currently, no such criteria exist. Section 101(a)(42) of the INA does specifically protect individuals who flee persecution in other countries because of forced sterilization or forced abortion. Beyond these specific categories, the INA fails to offer official guidelines regarding other forms of gender-related violence.90 Rather, the current structure for evaluating asylum applications relies on an analysis of gender-related asylum claim that groups varying experiences into a broader category, which encompasses all asylum claims and subjects dissimilar experiences to the same standard of review. This standard, or lack thereof, is reiterated in the Department of States Gender

Guidelines for Overseas Refugee Processing, which provides, In evaluating whether the harm or feared harm constitutes persecution, the same factors and guidance that an Immigration Officer uses to assess the level of harm in any refugee case should be used in gender-related persecution cases as well. For instance, the fact that a practice is widespread or a cultural norm does not detract from a claim that the alleged acts are serious enough to be persecution.
87

Possession of broadly based characteristics such as youth and gender will not by itself endow individuals with membership into a particular group. Memorandum from Phyllis Coven, U.S Office of Intl Affairs, Dept of Justice, Considerations for Asylum Officers Adjudicating Asylum Claims from Women (May 26, 1995) (quoting Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991)).
88

Gender Guidelines, CTR. FOR GENDER & REFUGEE STUDIES, http://cgrs.uchastings.edu/ law/gender_guidelines.php (last visited Dec. 8, 2010).
89

Stop Violence Against Women, AMNESTY INTL U.S.A., http://www.amnestyusa.org/ourwork/issues/women-s-rights (last visited Dec. 8, 2010).
90

Gender Guidelines, supra note 88.

18

The determination of whether an act (or acts) rise(s) to the level of persecution must be made on a case-by case basis.91 It is not that gender-based asylum claims necessarily warrant a heightened standard of review by asylum officers. Rather, these types of claims necessitate formal criteria for evaluation that ensures gender-related cases are adjudicated systematically. B. International Concept of Gender-Based Violence The United Nations concept of gender-based violence, although broader than that specified by the U.S., is still narrow in its interpretation of what constitutes gender-based violence. In 1985, the U.N. recognized that, States, in the exercise of their sovereignty, were free to adopt the interpretation that women asylum-seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they lived may be considered as a particular social group within the meaning of Article 1 A, paragraph 2, of the 1951 United Nations Convention relating to the Status of Refugees.92 In 1993, in the Declaration for the Elimination of Violence against Women, the U.N. elaborated on its definition of gender-based violence to include, any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.93

91 92

Id.

U.N. High Commr for Refugees, Addendum to the Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees on the Work of its ThirtySixth Session, Addendum to the Report of the United Nations High Commissioner for Refugees, 115(4)(k), U.N. Doc. A/40/12/Add.1 (Jan 10, 1986).
93

U.N. General Assembly, Declaration on the Elimination of Violence against Women, G.A. Res. 48/104, U.N. Doc. A/RES/48/104 (Dec. 30, 1993).
19

C. Problems with Domestic and International Frameworks Evaluating Gender-Based Persecution The domestic and international categorical schemes for recognizing gender-based persecutions are too narrow in their scope because they define gender in terms of biological sex, rather than the societal construction of gender, and fail to recognize persecution based on sexuality. The guidelines reinforce dichotomous gender schemes and individual acts of violence, thereby neglecting systematic forms of gender-based violence against individuals who defy stereotypes of gender and sexuality. Although groups, like homosexual men, have succeeded in asylum claims based on fear of prosecution as part of a particular social group, these successes are often analyzed as categorically distinct from gender-based violence.94 The under-inclusiveness in legal interpretations of gender-based violence extends beyond sexuality. Women who fail to adhere to societal gender norms are also not likely be included in the framework. The Matter of S.A., where the court recognized religious persecution as a viable basis for asylum, has been cited as an example of a successful gender-based asylum claim.95 The court granted asylum when, a woman with liberal Muslim beliefs established by credible evidence that she suffered past persecution and has a well-founded fear of future persecution at the hands of her father on account of her religious beliefs, which differ from her fathers orthodox Muslim views concerning the proper role of women in Moroccan society.96

94

Jamie R. Edwards, Jr., Homosexuals and Immigration: Developments in the United States and Abroad, CTR. FOR IMMIGRATION STUDIES (last updated May 1999), http://www.cis.org/Immigration%2526Homosexuals-PolicyTowardHomosexuals.
95

Gender-Related Asylum Fact Sheet, http://www.amnestyusa.org/women/pdf/asylum.pdf (last visited Dec. 6, 2010) (citing the Matter of S.A., 19 I&N Dec. 3433 (BIA 2000)).
96

Id.
20

The courts have acknowledged in their evaluation of asylum claims that persecution may include, governmental measures that compel an individual to engage in conduct that is not physically painful or harmful but is abhorrent to that individuals deepest beliefs.97 However, precisely what rises to the level of profoundly abhorrent is something the courts have left undefined, noting that, "the concept of persecution does not encompass all treatment that our society regards as unfair, unjust or even unconstitutional.98 Persecution based on sexuality and societal gender norms should be considered within a broader analysis of gender-based violence. The framework for assessing claims rooted in gender-based violence are simultaneously too narrow and too broad. Although the system allows for a narrow implementation of asylum policy related to gender-based violence, it is simultaneously broad in the sense that the lack of framework leads to a subjective review process. Because the system set in place does not provide a specific framework for making a claim, the determination of what constitutes an asylum-eligible category of gender-based violence is determined on a case-by-case basis. The system allows the adjudicator to define acceptable asylum worthy categories of gender-based violence for each individual claim, rather than implementing a consistent standard of review. Feminist scholars have suggested that some decision makers misunderstandings of gender and the relationship between gender, persecution and discrimination has resulted in

mischaracterizations of acts that should be considered gender-based violence within domestic refugee and asylum law.99

97 98 99

Coven, supra note 87 (citing Fatin v. INS, 12 F.3D 1233, 1242 (3rd Cir.1993)). Id. (quoting Fatin, 12 F.3D at 1240).

See Valerie Oosterveld, Gender, Persecution, and the International Criminal Court: Refugee Laws Relevance to the Crime against Humanity of Gender-Based Persecution , DUKE J. COMP. & INTL L. 49, 53 (2006).
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IV. THE VIOLENCE AGAINST WOMEN ACT AND THE VICTIMS OF TRAFFICKING AND VIOLENCE PROTECTION ACT The Violence against Women Act (VAWA)100 and the Victims of Trafficking and Violence Protection Act (VTVPA)101 are two laws enacted by Congress to help eradicate genderbased violence both domestically and internationally. Although the legislation has specific provisions aimed at addressing non-citizen women affected by gender-based violence, the statutes fall short of fulfilling that goal. A. The Violence Against Women Act In 1994, Congress passed the Violence against Women Act, allocating 1.6 billion dollars in funding to enhance judicial and law enforcement services aimed at addressing violence against women.102 VAWA promised to both improve current services and create new services for women who have experienced domestic violence, dating violence, sexual assault and stalking. VAWA addresses some of the inequities inherent in U.S. immigration law as part of a larger goal of preventing violence against women. Title VII of VAWA specifically addressed issues

relevant to the protection of battered and trafficked immigrants.103 Provisions of VAWA allow women to self-petition for lawful permanent residence or to request a cancellation of removal proceeding if they have previously been granted a two-year Conditional Permanent Residence card.104 Both provisions require that the applicant be married
100 101

Violence against Women Act, Pub. L. No. 103-322, 119 Stat. 2960 (2006).

Victims of Trafficking and Violence Protection Act, Pub. L. No. 106-386, 114 Stat. 1464 (2000).
102 103 104

Violence against Women Act, Pub. L. No. 103-322, 119 Stat. 2960 (2006). Id. Id.
22

to or recently divorced from their abuser.105 U.S. law requires that the spouse of a non-citizen petitioning for permanent residence be a U.S. Citizen or lawful permanent resident, and that the spouse initiates the petition with the USCIS and attends subsequent interviews with immigration authorities.106 This standard forces non-citizen women to be dependent on their spouse for citizenship status, thus perpetuating the dominant role of the abuser and reinforcing his power over the victim.107 Although the VAWA provisions attempt to address this dependency by allowing those who have experienced abuse to self-petition and apply for a temporary stay independent from their abusers, it does little to assist women who experience abuse and are unmarried, widowed, divorced for more than two years, or abused by a family member that is not a spouse. Furthermore, it does nothing to address issues relevant to men who have experienced domestic violence. B. Victims of Trafficking and Violence Protection Act In 2000, Congress passed the Victims of Trafficking and Violence Protection Act, which included the VAWA and the creation of two new categories of nonimmigrant visas: T-Visas and U-Visas.108 These visas, unlike the VAWA provisions for self-petition and cancellation of removal, allow non-citizens to apply for visas through the USCIS regardless of their marital status.109 The law places the burden of proof on the applicant throughout the application

105 106

Id.

VAWA Laws for Abuse Victims, WOMENSLAW.ORG (Nov. 11, 2011), http://www.womenslaw.org/laws_state_type.php?id=10270&state_code=US#content-10405.
107 108

Id.

Victims of Trafficking and Violence Protection Act, Pub. L. No. 106-386, 114 Stat. 1464 (2000).
109

See id.
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process.110 The visas allow some non-citizen victims to obtain temporary legal status, automatic work eligibility in the U.S. for up to four years, the opportunity to apply for extensions under certain circumstances, and the prospect to apply for lawful permanent residency after three years.111 The visas also allow immediate family members to be included in the petition.112 In order to qualify for a U-Visa, applicants must demonstrate in their petition that: (1) they have suffered "substantial physical or mental abuse" as the result of one of the specified forms of criminal activity; (2) they possess information concerning the criminal activity; (3) they can provide a certification from a federal, state, or local law enforcement official, prosecutor, judge, or authority that is investigating the criminal activity that the applicant is being, has been, or is likely to be helpful to the investigation or prosecution of the criminal activity; (4) the criminal activity violated U.S. law; or occurred in the U.S. (including Indian country and military installations) or the territories and possessions of the U.S.113 Similarly, T-Visas give temporary non-immigrant status to applicants who: (1) are victims of a severe form of human trafficking; (2) are in the U.S., American Samoa, or a port-of-entry to the U.S. or American Samoa because of human trafficking; (3) would suffer extreme hardship if removed or forced to leave and;
110 111

See id.

The U-Visa crimes are limited to rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes. U Visa for Immigrants who are the Victims of Crimes, U.S. IMMIGRATION SUPPORT, http://www.usimmigrationsupport.org/visa-u.html (last visited Dec. 10, 2010).
112 113

Id.

U-Visa Laws for Crime Victims, WOMENSLAW.ORG, http://www.womenslaw.org/laws_state_type.php?id=10271&state_code=US&open_id=10842 (last visited Dec. 10, 2010).
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(4) have cooperated with or are excused from cooperating with reasonable requests from legal authorities.114 Congress has authorized the issuance of 10,000 U-Visas and 5,000 T-Visas annually.115 Even though both visas allow for derivative T-Visa and U-Visa status for immediate family members, the number of authorized visas remains low. In 2009, the year in which the most Tvisas were granted, only 313 of the available visas were approved.116 In the same year, only 5,825 U-Visas were approved.117 Although 5,000 T-Visas are available per year, only 2,000 have been issued as of January 2009, more than eight years after the enactment of VTVPA.118 There is a significant disparity in the number of T-Visas and U-Visas that are available and those that are actually granted, despite the demonstrated need. This discrepancy between the need for visas and the actual number of visas granted can be partially attributed to inadequate dissemination of information by government agencies. Trafficking victims are likely not aware that this relief exists. Even if they are aware of the relief, the application process outlined in Title VII of VAWA has many complex legal requirements. Although the statute does not obligate applicants to hire an attorney in order to successfully pursue a visa application, non-citizens seeking remedy under VAWA may find that
114

State Law Overview, WOMENSLAW.ORG, http://www.womenslaw.org/laws_state_type.php?id=13636&state_code=US&open_id=13641#c ontent-13641 (last visited Dec 10, 2010).
115 116 117 118

Scaperlanda, supra note 7 at 119. Id. Id.

Ambassador Mark P. Lagon, Director, Office to Monitor and Combat Trafficking in Human Persons U.S. Dept of State, William V. OBrien Lecture in Intl Law and Morality at the Georgetown Univ.: Law and Morality of Human Trafficking (April 9, 2008), http://fora.tv/2008/04/09/Mark_P_Lagon_Law_and_Morality_of_Human_Trafficking.
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legal counsel is necessary to understand and fulfill the requirements.119 Financial barriers could hinder some potential applicants who need legal counsel in their application process. Comprehension of the complex legal requirements necessary for a successful visa application can be further complicated if applicants lack advanced English language skills. If a non-citizen attempts to commence the process of self-petitioning, cancellation of removal, or visa application, they risk deportation. Although the provisions of VAWA aim to help non-citizens achieve lawful stay in the U.S., an applicant who is undocumented and approaches CIS or the BIA in the process of seeking relief could potentially alert government authorities to their illegal status. If their application for relief under VAWA is denied, the applicant and their dependents may face deportation. The requirement that the applicant must be willing to fully cooperate with law enforcement demonstrates conflicting goals in the implementation of T-Visas and U-Visas. The success of a visa application is predicated on the applicants ability and willingness to cooperate with law enforcement, even if that cooperation is potentially harmful to the applicant. In order to qualify for a U-Visa, for example, the applicants must include in their petition, information on how the victim can assist government officials in learning more about the crime including investigation and/or prosecution of the individual(s) that committed the crime.120 If non-citizen applicants do not possess information relevant to the crime committed against them or cannot further the investigation of the individual accused of committing the crime, then the applicant will not meet the eligibility requirements necessary to attain a visa. Furthermore, if the applicant is unable or unwilling to help the government in investigating and adjudicating the crime, their
119

See Victims of Trafficking and Violence Protection Act, Pub. L. No. 106-386, 114 Stat. 1464 (2000).
120

WOMENSLAW.ORG, supra note 114.

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visa application can be denied. The standard set forth makes the survivor of a crime responsible for bringing their perpetrator to justice. By cooperating with authorities, the applicant is required to relive the trauma of her experience, participate in a time consuming legal process, and possibly face her abuser if required to testify in court. The applicant must comply with law enforcement even if that compliance is in opposition with VAWAs goals of bettering the situation of women who experience violence. The mandatory compliance provision of the visas furnishes law enforcement officials with witnesses who are obligated to help in the prosecution of those accused of crimes. Although this requirement may further the goals of the criminal justice system by punishing those convicted of crime, forcing survivors of crime to participate in that process is detrimental to the goals of VAWA. VAWA was created as a remedy for women who have experienced violence, and that legislative objective is compromised by visa requirements that predicate government protection on victims willingness and ability participate in the prosecution of their aggressors. V. RECOMMENDATIONS AND CONCLUSION The fundamental purpose of U.S. Refugee Law is, to provide surrogate international protection when there is a fundamental breakdown in state protection resulting in serious human rights violations tied to civil and political status.121 The U.S. government fails to meet this standard. Claims for asylum in the U.S. that are rooted in allegations of gender-based violence face both structural and procedural barriers. U.S. laws apply vague standards to the statutes

regulating asylum law. Furthermore, the procedural construction of the immigration courts under the DHS is flawed because there is no set standard of review for asylum claims. The
121

Documents and Information on Rody Alvarados Claim for Asylum in the U.S., supra note 68.
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ambiguity of the adjudication of asylum claims has been exacerbated under post-9/11 legislation. In particular, the implementation of Real ID gives far too much discretion to IJs. This further obscures standards of asylum review by allowing IJs more subjectivity when determining the validity of asylum claims absent a more definitive standard of review. In addition, the legislative restructuring of the EOIR under DHS after 9/11 undermined the authority of the judicial branch. The definition of gender-based persecution should be clearly defined within statutory framework. The formal adoption of guidelines for asylum officers in deciding gender-based asylum cases would provide standardized criteria for evaluation, ensuring the systematic adjudication of gender-based asylum claims. By allowing asylum claims predicated on genderbased persecutions including rape, sexual violence, violation of fundamental beliefs, and publicly tolerated private acts of violence, the proposed gender-related guidelines clearly define genderbased violence.122 However, the mandatory criteria for evaluation should expand beyond these proposed guidelines. Although broader than the proposed U.S. guidelines, the U.N. definition still falls short of sufficiently encompassing all forms of gender-based violence and providing adequate protection to those in need of sanctuary. The U.N. definition of gender-based violence should be modified and adopted into U.S. law. Protection for gender-based violence should not be limited to a definition of gender that relies on biological sex, ignoring the societal construction of gender and failing to recognize persecution based on sexuality. The U.N. limits its definition to women, reinforcing dichotomous gender schemes. The U.S. should adopt a more expansive version of the U.N. definition of gender-based violence that recognizes systematic forms of gender-based

122

Stop Violence Against Women, supra note 89.

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violence against individuals who defy stereotypes of gender and sexuality. This would include women who fail to adhere to societal gender norms. Formal criteria and guidelines for evaluation would ensure that gender-based asylum claims are adjudicated systematically, reducing the discretion given to IJs. The current deficit of a systematic framework for review leads to a subjective review process. Because the system set in place does not provide specific criteria for accessing gender-based asylum claims, IJs are permitted to access gender-related asylum claims on a subjective basis. An individual IJs personal biases regarding gender-based violence have greater potential to affect the outcome of a gender-based asylum claim under the current statutory framework than it would with the implementation of a systematic framework for review. Asylum law would benefit from a restructuring that delegates to the federal courts the sole authority to hear asylum claims. The expansion of executive authority in the adjudication of asylum claims after 9/11 is unconstitutional because the creation of DHS undermined the separation of powers. Real ID has restricted the authority of the judiciary by giving great deference to the executive branch in making decisions related to asylum claims. The dissolution of EOIR and the deferral of asylum claims to federal courts would ensure a meaningful separation of powers by allowing the judiciary to interpret the laws set forth by the INS.

29