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Special Section on Haitian Women and Asylum

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The Cen­ter for Gen­der and Refugee Stud­ies (CGRS) can pro­vide free tech­ni­cal assis­tance on gender-based persecution.

Please visit the IJDH Rape Account­abil­ity and Pre­ven­tion Project as well as the IJDH news archive on gender-based vio­lence for addi­tional information.

Model Expert Affidavits

IJDH Pub­li­ca­tions

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Cases

Law Jour­nal Articles

  • Karen Musalo, A Short His­tory of Gen­der Asy­lum in the United States: Resis­tance and Ambiva­lence May Very Slowly be Inch­ing towards Recog­ni­tion of Women’s Claims, 29 (2) Refugee Sur­vey Quar­terly 46–63 (2010).
    • The author expresses opti­mism toward gen­der asy­lum claims in the US but stays real­ist. Her opti­mism relies on a few cases:
      • Mat­ter of Acosta (1985): def­i­n­i­tion of par­tic­u­lar social group
      • Mat­ter of Kasinga (1996): a woman from Togo threat­ened of FGC and vic­tim of a forced mar­riage. BIA ruled that FGC is a severe enough harm to con­sti­tute per­se­cu­tion, and that she was a mem­ber of a par­tic­u­lar social group defined by gen­der in com­bi­na­tion with other immutable and fun­da­men­tal char­ac­ter­is­tics. The par­tic­u­lar social group was defined as “[y]oung women of the Tchamba-Kunsuntu Tribe who have not had FGM, as prac­ticed by the tribe, and who oppose the practice.”
      • Mat­ter of R– A (2009): a Guatemalan women vic­tim of domes­tic vio­lence was granted asy­lum The par­tic­u­lar social group was: “mar­ried women in Guatemala who are unable to leave the relationship,”
      • L-R DHS posi­tion Depart­ment of Home­land Security’s Sup­ple­men­tal Brief, 13 Apr. 2009 (DHS L.R. Brief): social vis­i­bil­ity can be estab­lished demon­strat­ing that once a woman enters into a domes­tic rela­tion­ship, the abusers believes he has the right to treat her as he pleases (adop­tion of the UNHCR’s “social per­cep­tion” approach) + adop­tion of the UNHCR’s bifur­cated analy­sis allow­ing estab­lish­ment of nexus when there is State’s fail­ure to pro­tect regard­less the indi­vid­ual persecutor’s motivation.
    • See also Mat­ter of R– A– (10 Decem­ber 2010): Doc­u­ments and Infor­ma­tion on Rody Alvarado’s Claim for Asy­lum in the U.S.
  • Alli­son W. Reimann, Hope for the Future? The Asy­lum Claims of Women Flee­ing Sex­ual Vio­lence in Guatemala, 157 U. Pa. L. Rev. 1199 (April 2009).
    • The author describes the legal strug­gle on the treat­ment of Gender-based asy­lum claims through the exam­ple of Guatemalan women. Part II is inter­est­ing because it explains why women flee­ing GBV can­not find asy­lum in the USA; the analy­sis can be used for Hait­ian women. Under inter­na­tional law, gen­der alone can form a par­tic­u­lar social group (see UNHCR 1991, the 2002 UN HCR Gen­der Guide­lines…), but because gen­der is not one of the enu­mer­ated char­ac­ter­is­tics expressly war­rant­ing pro­tec­tion, claims based on gen­der per­se­cu­tion are unlikely to suc­ceed under US law. Two of the require­ments under asy­lum law are not prob­lem­atic any­more: sex­ual vio­lence is rec­og­nized as egre­gious harm –a well-founded fear of per­se­cu­tion– and it is pos­si­ble to prove that the Gov­ern­ment is unable or unwill­ing to con­trol the per­se­cu­tor. How­ever, the pos­ses­sion of a pro­tected char­ac­ter­is­tic as well as the nexus between the per­se­cu­tion and the pro­tected char­ac­ter­is­tic are usu­ally defeated in front of US courts. First, women relied on the “par­tic­u­lar social group” cat­e­gory (pos­ses­sion of an immutable char­ac­ter­is­tic), but US Courts have been reluc­tant to rec­og­nize gen­der as a par­tic­u­lar social group because such group need social vis­i­bil­ity and well-defined bound­aries, two require­ments lack­ing in the claims. The author though men­tioned two cases where BIA rec­og­nized that gen­der alone may form a par­tic­u­lar group: Niang v. Gon­za­les, 422 F.3d 1187, 1200 (10th Cir. 2005) (what is impor­tant to show is “whether the mem­bers of that group [women] are suf­fi­ciently likely to be per­se­cuted that one could say that they are per­se­cuted “on account of their mem­ber­ship”) and In re Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985) (“the shared char­ac­ter­is­tic might be an innate one such as sex, color or kin ship ties”). Sec­ond, US Courts have shown reluc­tance to rec­og­nize the nexus and held that sex­ual vio­lence was moti­vated by sex­ual attrac­tion rather than by gender.
  • Crys­tal Doyle, Isn’t “Per­se­cu­tion” Enough? Redefin­ing the Refugee Def­i­n­i­tion to Pro­vide Greater Asy­lum Pro­tec­tion to Vic­tims of Gender-Based Per­se­cu­tion, 15 Wash. & Lee J. Civil Rts. & Soc. Just. 519 (2009) (on file).
    • The note argues “two main points. Firstly, that, though laud­able, existing–and proposed–efforts to incor­po­rate gender-based per­se­cu­tion into the exist­ing def­i­n­i­tional frame­work are innately flawed and that alter­na­tive means are nec­es­sary to achieve con­sis­tent, straight­for­ward asy­lum pro­tec­tion to vic­tims of gender-based per­se­cu­tion. Sec­ondly, this Note will pro­pose that the solu­tion to this prob­lem may be an amended def­i­n­i­tion of “refugee” that removes the require­ment of a causal nexus between the alleged per­se­cu­tion and one of the five cur­rent bases of asy­lum: race, reli­gion, nation­al­ity, mem­ber­ship in a par­tic­u­lar social group, or polit­i­cal opinion”.

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Expert Affi­davits | IJDH Pub­li­ca­tions | Human Rights Reports | Cases | Law Jour­nal Articles

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