Article by Elizabeth Lee
Since 2014, the United States has experienced an unexpected influx of migrants—particularly women and children—from Central America fleeing from gang violence, drug trafficking, and domestic violence. The U.S. government’s struggle to handle the increased inflow of migrants, as well as the Trump administration’s goal to curb illegal immigration at the U.S.-Mexico border, have prompted policy changes restricting who may qualify for asylum, which has had a disproportionally negative impact on women fleeing gender-based violence.
International Refugee Protections for Victims of Gender-Based Violence
The United Nations introduced international refugee protections through the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees. These two documents were a post-World War II reaction to the failure to protect Jews and other victims of the Holocaust who were turned away when they sought sanctuary in another country.
Under the Refugee Convention and Protocol, those who are “unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion” qualify for refugee protection. Notable in this language is the omission of gender as a protected ground. In response, the United Nations High Commissioner for Refugees (UNHCR) published authoritative guidance in 2002, stating that women may qualify for protection based on gender-related persecution such as domestic violence.
Gender-based claims fall under “membership of a particular social group” (PSG) and UNHCR recommends considering the following when defining PSG in an asylum claim:
It must be a distinct group in society.
It must involve innate characteristics; common past experiences; or shared values, attitudes, or behaviors. (e.g. sex, caste, military experience, sexuality)
It must exist in the view of its members or from the viewpoint of society.
Persecution does not define PSG; rather, it must exist independently from the harm. PSG also depends on the historical, economic, sociopolitical, and legal contexts of an individual’s country of origin. More importantly, an individual’s claim for protection must be based on the persecution of the individual, not merely the persecution of the PSG as a whole.
UNHCR’s guidance on refugee protections for women, however, has not translated into practice in many countries, including the United States.
Domestic Violence and Refugee Protection in the United States and Beyond
The United States adopted the 1967 Protocol, with the U.S. Code useing the same language as the Refugee Convention in defining who can qualify for protection. In August 2014, the United States recognized domestic violence as a basis for asylum in Matter of A-R-C-G-, a case about a Guatemalan woman who suffered spousal abuse for ten years while police did not intervene despite repeated requests from the woman.
However, in June 2018, in Matter of A-B- , Attorney General Jeff Sessions overruled the Board of Immigration Appeals’ (BIA) groundbreaking decision in Matter of A-R-C-G- . While this case does not categorically exclude domestic violence claims as a basis for asylum, Sessions’ negative rhetoric and limited understanding of migrants escaping domestic violence have resulted in higher scrutiny in these claims, making it harder for women to receive refugee protection. Worth noting as well is that an asylum seeker’s chance for protection depends heavily on the judge assigned to the case, creating another hurdle in the asylum process.
Victims of domestic violence seeking refuge in countries other than the United States have also experienced obstacles. In 2012, the European Parliament published a study on gender-related asylum claims in Europe. Countries differed in the way they viewed domestic violence in relation to persecution. For example, in Belgium, spousal abuse was a form of persecution and Sweden did not consistently recognize this. In France, by contrast, domestic violence could be part of a viable asylum claim if it was paired with another type of violence, like forced marriage.
Necessity of Recognizing Women’s Rights in Refugee Protections
There are divergent views about domestic violence as a viable basis for asylum warrant. One issue is the amount of reluctance in offering protection for women who have experienced such abuse. Such reluctance is based primarily on traditional views of women’s role in the private sphere. First, women’s rights were not officially recognized by the UN until the General Assembly issued a resolution in December 1972 declaring 1975 as the International Women’s Year—thus accounting for the omission of gender as a ground for protection under the Refugee Convention and the Protocol. Second, the types of violence that women experience differ from those by men. Abuses like sexual assault, domestic violence, female genital mutilation, and dowry burnings are often viewed as “private” acts by individuals rather than “public” acts by a government and its refusal or inability to punish and deter actors.
Consequently, achieving adequate recognition of domestic violence and other gender-based violence as bases for asylum requires countries to understand the historical sociopolitical dynamics animating these issues and policies. Countries must work towards creating a cohesive system that can offer much-needed protection to some of the most vulnerable people in the world.