In early 1984, by her account, she took a two-hour bus trip to her uncle's home, to repay a debt owed by her father. Her uncle was the chairman of the local agricultural cooperative, one formed as a result of the controversial agrarian land reform movement instituted several years earlier. When she arrived, she found her uncle apprehensive; he explained that the day before two men had demanded money he held for the co-op and he had refused them. Although frightened, she remained to visit with her cousins. Later, an older woman and two young men with rifles arrived and knocked down the door. They dragged Ms. Campos, her uncle, a male cousin and three female cousins to the rim of the farm's waste pit. They tied all the victim's hands and feet and gagged the women. Forcing the women to watch, they hacked the flesh from the men's bodies with machetes, finally shooting them to death. The male attackers then raped the women, including Ms. Campos, while the woman who accompanied the attackers shouted political slogans. The assailants cut the victims loose, (and) threatened to kill them unless they fled immediately.(1)
The above quoted account was not the last time Ms. Campos would see her attackers. On a subsequent visit home, her mother introduced one of her attackers to her as a cousin who had fled from guerrillas and moved into the neighborhood. According to Ms. Campos, he threatened to kill her and her family if she identified him. Soon thereafter, her workplace was burned down. Ultimately, she fled to the United States.(2)
In 1984, Ms. Campos entered the United States illegally.(3) She requested her deportation be withheld and requested that the United States grant her asylum. Affirming the immigration judge's opinion, the Board of Immigration Appeals held that Ms. Campos failed to meet the burden of proof to establish entitlement to withholding of deportation and was statutorily ineligible for a discretionary grant of asylum.(4) The Board held that the record did not establish that Ms. Campos "was persecuted on account of any political opinion she herself possessed or was believed by her attackers to possess."(5) The Board had concluded that any threat of retribution was personally motivated -- only intended to prevent her from exposing the identity of the assailant. It then declared that there was "no indication [the assailant] maintained an interest in her because of her political opinion or any other grounds specified in the Act."(6) The Fifth Circuit Court of Appeals thereafter affirmed the Board's denial in 1987.(7)
Ms. Campos had based her requests on two of the five necessary statutory grounds:(8) "political opinion" and "membership in a particular social group."(9) She asserted that she had been persecuted in El Salvador for political opinions attributed to her by her assailants on account of her family membership. She feared that as an eyewitness to the political assassinations of her uncle and cousin, she would be subjected to future persecution if deported to El Salvador.(10)
Had Ms. Campos' suffering been due to her own political opinions, the U.S. courts most likely would have granted her the refugee status she was seeking. Because she was in the presence of her uncle at the time the guerrillas arrived, the guerrillas imputed her uncle's political opinions to her, and as a result, she was subjected to a great deal of suffering.
The U.S. Congress adopted its definition of "refugee" from the 1951 United Nations Convention Relating to the Status of Refugees. The definition has been interpreted quite narrowly by the courts and, as a result, many women in situations similar to that of Ms. Campos are unable to qualify for refugee status in the United States and are forced to return to the countries where they had endured so much violence.
This article examines the framework the U.S. courts and Congress utilize when addressing problems related to refugees and asylees. It provides an overview of the punishments, practices, and social mores that victimize women. It describes, in particular, how the framework leaves the judicial system weak when forced to cope with these special cases. The article then evaluates the weaknesses in the statutes regarding the withholding of deportation and granting of asylum and how these statutes are interpreted by the courts. It also analyzes how other countries, particularly Canada, and international organizations are managing the special obstacles faced by immigrating women. Finally, this article discusses the recommendations of leading scholars and commentators for the United States to assist in harboring women refugees.
If we were to allow ourselves to envision all of the cruel and inhumane punishments one could inflict on a fellow human being, we would visualize the atrocities committed each day upon women by their husbands, lovers, government officials, terrorists, and others. Yet sometimes facts are even harsher than fiction. The following discussion illustrates several cases that have gained widespread media attention in the United States.
A. Rape
The use of rape and other forms of gender-based violence is an appalling fact of life in some nations. Rape has been used both as an instrumentality of war, as well as a tactic employed by government agents in time of peace. During World War II for example, the Nazis and Japanese practiced rape and forced prostitution on a large scale.(11) Government troops also used rape as means of punishment to women in Kashmir, in Peru, and in Kuwait under the Iraqi occupation.(12)
A particularly graphic example is the systemic rape and sexual abuse of Muslim and Croat women by Serbian soldiers in the former Yugoslavia. The rapes of women there have been characterized as a weapon of war; a part of a larger scheme of "ethnic cleansing."(13) "Ethnic cleansing" is described as "a way to eliminate the Muslim populations from the area through intimidation, expulsion, murder, and the impregnation of Muslim women to give birth to Serbian babies."(14)
B. Social or Cultural Factors
Some countries have a very long and strong tradition of keeping women submissive. If a woman refuses to comply with certain social norms and expectations, she may be subject to unusually harsh punishment. In Iran for example, women are expected to cover everything except their hands and face with a veil.(15) Apparently, this situation is so extreme that women fear they will be punished if the veil should slip from their head! The government and groups of civilian men enforce this policy. It has been reported that women have been harassed, detained, knifed, maimed, beaten, arrested, and had acid thrown on them if they were seen without a veil.(16) It seems some Iranian men recognize a correlation between "veillessness" and prostitution and the punishment for prostitution can be execution.(17) Under Islamic law, however, virgins cannot be executed.(18) In these cases, the alleged prostitute is brought into jail and married off to an official or guard to be deflowered that night and legally executed the next day.(19)
C. Domestic Violence
In the United States today, there are two common types of cases of domestic or intimate violence in the refugee context. The first involves women who flee to the United States to escape a vicious or abusive husband. The other concerns women who are in the United States without legal immigration status. These women come to the United States with a visitor's visa to join their husbands who are permanent legal residents, but remain in the United States upon expiration of the visa. Currently, both of these situations are pending before a New York City Immigration Court (The Executive Office of Immigration Review)(20) and the Immigration and Naturalization Service.(21)
Typical of the first type is the case of Nora.(22) She was born in Honduras and at age fifteen married Francisco. Before they had been married a year, Francisco returned home one night and beat Nora severely. Before their second anniversary, Francisco had raped her at gunpoint, run her down with a car, kidnapped their baby, and fired gunshots at Nora and her mother.(23) During this time, her family went to the police on two occasions. They were told that it would cost approximately one week's salary to file a complaint and that, in the end, nothing would come of it because Nora was Francisco's woman and he could do what he wanted with her.(24) Fearing for her life and the safety of her family, Nora left her daughter with her sister and fled to the United States.(25) Nora was in the United States for one day when she was apprehended by the Immigration and Naturalization Service and placed in deportation proceedings.(26) Nora's case illustrates why women flee to this country alone - leaving friends and family behind. Yet still other immigrant women feel that they have no choice but to remain with their abusive husbands.
Prior to the Violence Against Women Act of 1994,(27) immigrants could gain legal residence by marrying a U.S. citizen or someone with legal immigrant status, provided the citizen petitioned for legalization on behalf of their spouse. Without the petition, the immigrant had no legal status and could be deported at any time.(28)
Julila's case is a case that arose before passage of the Act.(29) She had been married to her husband for twenty-two years. He came to the United States from Pakistan in 1981 and became a lawful permanent resident here. Julila came to join him in 1985 on a visitor's visa that expired. From the beginning of their marriage, her husband had brought home other women and told her that she was no good. After she moved to the United States, he became increasingly abusive, first verbally then physically. One time, after a beating, she left and moved into a shelter. In all the years she was here, her husband refused to petition for her to obtain lawful status. At that time, there was no other means to obtain legal status other than through her marriage, yet she was afraid to leave the shelter and return to him. Moreover, she was fearful of what might happen to her if she returned to Pakistan. She had been warned that she would be shunned by her own family and her husband's family had threatened to harm her for the disrespect she had shown him.(30)
D. Genital Mutilation and Female Circumcision
In some African, Middle Eastern, and Southeast Asian countries there is a ritual that maims approximately two million young girls each year.(31) The procedure involves cutting away the external sexual organs(32) and sewing the vagina shut except for a pencil-sized hole for urination. It is intended to eliminate a woman's ability to enjoy sexual relations. It is done so she will remain a virgin until she marries and will remain faithful to her husband afterward.(33) The consequences include painful sex, infections, complicated childbirth and sometimes death.(34)
In March of 1994, a judge in Seattle dropped deportation proceedings against a Nigerian mother of two young girls.(35) Lydia Oluloro moved to the United States in 1986 to join her husband. Although he told her that he had filed the papers to legalize her residency, he never did. When they divorced, she was threatened with deportation.(36) According to Lydia, her ex-husband was an abusive man and she feared leaving her daughters in the United States to live with him.(37) Her choice then, was to leave them with an abusive father or take them with her to an abusive culture where they would be subjected to the same painful genital mutilation process that Lydia had undergone as a young girl. The immigration judge ruled that sending her back to Nigeria would cause "extreme hardship" to her children who were U.S. citizens.(38) The court rejected the U.S. government's argument that customs in Nigeria are changing and allowed Lydia to remain in the United States, not as a refugee or asylee, but on humanitarian grounds--in order to protect the young U.S. citizens.(39)
U.S. policy generally holds that the persecution must be directed against the person claiming refugee status, not against a relative or child. Had the court used the current guidelines for granting asylum or withholding deportation as opposed to using the humanitarian policy, Lydia probably would not have succeeded on the merits of the claim. If the court had followed U.S. policy strictly, Lydia would have had to make that difficult choice between leaving the girls with their abusive father or bringing them to Nigeria.
A. The United Nations
After World War I, thousands of European men, women, and children found themselves displaced from their homelands. Private organizations were the primary source of assistance to them.(40) The efforts by such organizations to provide for refugees was codified in 1951 in the United Nations Convention Relating to the Status of Refugees ("Convention"). The Convention defined refugee as "any person who, as a result of events occurring before [January 1, 1951] and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality."(41)
In 1967, the United Nations altered the provisions slightly. The Protocol Relating to the Status of Refugees ("Protocol") eliminated the passage "[a]s a result of events occurring before [January 1, 1951]."(42) The parties to the Protocol considered it desirable that "equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline [January 1, 1951]."(43)
Furthermore, the Protocol reflects a more universal character as opposed to the original protection given to Europeans. "The present Protocol shall be applied by the States Parties hereto without any geographic limitation . . . ."(44) This statement eliminated an optional limitation which under the Convention allowed contracting States to limit their obligation to refugees from European countries.(45)
B. The United States
Congress' response to the refugee problem was the Immigration and Nationality Act of 1952.(46) Not like the United Nations Convention Relating to the Status of Refugees, the Immigration and Nationality Act had certain deficiencies.(47) In order to establish a more comprehensive refugee resettlement and assistance policy, the original Immigration and Nationality Act was amended by the Refugee Act of 1980. This Act brought United States immigration law into compliance with the 1967 United Nations Protocol Relating to the Status of Refugees.(48)
The Immigration and Nationality Act provides two methods by which an alien may remain in the United States due to fear of persecution in his native country.(49) First, the alien can apply for a grant of asylum.(50) Second, the alien can apply to have his deportation withheld.(51) There are, however, some important differences between the two procedures.
Section 208 of the Immigration and Nationality Act states that "the alien may be granted asylum in the discretion of the Attorney General if [he/she] determines that such alien is a refugee within the meaning of Section 101(a)(42)(A)."(52) In that section Congress adopted the definition of "refugee" from the United Nations Protocol Relating to the Status of Refugees. In order to succeed on an asylum claim, the applicant must prove to a district director of the Immigration and Naturalization Service or an immigration judge that the applicant is "unable or unwilling to return to, and 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."(53)
The Act is interpreted to mean that in order to establish refugee status, a woman must demonstrate that she has been persecuted in the past or has a fear of future persecution, that the feared persecution was, or will be, by the government of the country from which she is emigrating, or by someone whom the government is unwilling or unable to control, and that the feared persecution is on account of race, religion, nationality, political opinion or membership in a particular social group.(54)
If the asylum request is granted, the alien may remain in the United States for one year. At the end of one year, the asylum claims are reassessed.(55) Asylum status may be terminated for any one of three reasons: (1) if circumstances have changed in the asylee's country of nationality so as to eliminate the need for asylum; (2) if the asylee poses a danger to the security of the United States or is convicted of a serious crime; or (3) if the alien was not eligible for asylum in the first place.(56) Asylum requests made after the institution of deportation proceedings are automatically considered requests for the withholding of deportation.(57)
In order to qualify for a withholding of deportation, it must be determined that "the alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion."(58) This phrase has been interpreted by the Supreme Court to mean the petitioner is required to show that "it is more likely than not that the alien would be subject to persecution" in the country to which he would be returned.(59) Consequently, in order to prevail an applicant had to establish by objective evidence a clear probability that he would be singled out for persecution if deported to his native country.(60) These evidentiary requirements were very difficult to meet -- especially in the case of an alien who fled his native country without proper documentation of persecution.(61)
The determination whether or not to withhold deportation is made by an immigration judge. If an applicant makes a successful claim, withholding of deportation is mandatory with respect to the applicant's native country. He may, however, be deported to a third country.(62)
C. The Standards of Proof
The first version of the Immigration and Nationality Act had no provisions which would grant asylum to aliens already in the United States.(63) The alien had no choice but to wait until deportation proceedings had begun and then apply to have that deportation withheld. The enactment of the Refugee Act instituted the provision for granting asylum to those aliens already in the United States with a "well-founded fear of persecution" standard of proof.(64) The Refugee Act also included the Protocol's requirement for the mandatory withholding of deportation for qualified applicants.(65) As discussed above, the "well-founded fear" standard is less stringent than the "clear probability" standard used in deportation proceedings and allows for the consideration of subjective factors.(66) Unfortunately, these differing standards for the differing forms of relief led to some confusion in the courts.
Although it instituted provisions and a standard of proof for granting asylum, the Refugee Act made no reference to the standard of proof necessary to determine a claim for withholding of deportation. Because of this omission, courts did not agree as to which standard should be used.(67) The Third Circuit reasoned that the Immigration and Nationality Act's stricter standard for withholding of deportation applied to determining whether or not to grant asylum.(68) The Third Circuit contended that the Refugee Act was effected solely for the sake of clarity. It declared that the language of the Refugee Act should conform to the language of the Convention and Protocol.(69) The Second(70) and Sixth(71) Circuits claimed that the Refugee Act applied the more subjective "well-founded fear" standard to both types of claims. They reasoned that the less strict standard is more in line with the humanitarian goals of the Refugee Act.(72) Three years after the Act was instituted, the Supreme Court first addressed the inconsistent interpretation problem in INS v. Stevic.(73)
Stevic discussed the standards of proof for establishing a claim for withholding of deportation and for an application for asylum. In 1977, an alien sought to have his deportation withheld under the Immigration and Nationality Act of 1952.(74) The lower court held that he had not met the difficult burden of proof of a clear probability of persecution directed at him.(75) In 1981, he received another notice to surrender for deportation.(76) This time he claimed that the Refugee Act of 1980 had changed the burden of proof for deportation proceedings so he needed to show only a "well-founded fear" of persecution. The Supreme Court disagreed. It held that the "clear probability" of persecution standard remained applicable for deportation claims.(77) It declared that such an application must be supported by objective evidence establishing that "it is more likely than not that the alien would be subject to persecution . . . ."(78) The Court stated that the Refugee Act was intended to change the approach to admission of refugees only.(79) It contended that there was nothing in the Act that indicated that the standard for withholding of deportation should change.(80)
While the Court in Stevic decided to interpret the "clear probability" of persecution standard used to overcome deportation, it declined to explain the meaning of "well-founded fear" of persecution used for asylum claims.(81) It was soon to be addressed, however, in INS v. Cardoza-Fonseca.(82)
In Cardoza-Fonseca, a woman was seeking either asylum or a withholding of deportation due to her brother's political status in Nicaragua. She claimed that because the Sandanistas knew that she had fled with her brother, if she returned she would be interrogated regarding his whereabouts and possibly punished.(83) The immigration judge found that she had not established a "clear probability of persecution" and was therefore not entitled to either form of relief.(84)
On appeal, she did not challenge the decision of the Board of Immigration Appeals ("BIA") that she was not entitled to a withholding of deportation, but argued that she was eligible for consideration for asylum and that the judge erred in applying the "clear probability of persecution" standard to her application for asylum.(85) She argued that for her application for asylum, the court should have applied the more generous "well-founded fear" standard established in the Refugee Act.(86) The Supreme Court granted certioriari to resolve this circuit conflict.(87) In its opinion, the Court pointed out that "[t]he contrast between the language used in the two standards, and the fact that Congress used a new standard to define the word "refugee," certainly indicates that Congress intended the two standards to differ."(88) Although the Court did not set forth in detail how the "well-founded fear" test should be applied, it did state that in order to show a "well-founded" fear of persecution, an alien need not rise to the level of proof that it is more likely than not that he or she will be persecuted in his or her country.(89) It also determined that the statutory language causes the asylum eligibility determination to turn to some extent on the alien's subjective mental state.(90)
In comparing the standards of proof, it is apparent that there is not much difficulty in persuading a member of the court of the subjective mental state of the alien (the test used in Cardoza-Fonseca). A battered woman experiences fear. The objective component stated in Stevic, on the other hand, raises some difficulties. In most cases, there are no witnesses to the violent acts or the witnesses are in another country. Furthermore, there is no actual proof by way of police and medical reports. Most circuits do not allow the applicant's testimony alone without corroborating evidence.(91) The Ninth Circuit holds otherwise, however. When no other proof is available or accessible, the Ninth Circuit will rely on the testimony of the woman applying for asylum. It has stated that "the imposition of (requiring corroborating evidence) would result in the deportation of many people whose lives genuinely are in jeopardy."(92)
Expert testimony is also used to establish the subjective mental state of the alien. Expert testimony has been used in some cases to verify post-traumatic stress disorder in refugee women.(93) An expert can affirm that the testimony regarding what took place is consistent with the refugee's response to it.
D. At the Hands of the State
Once a woman has met the appropriate burden of proof, in order to satisfy the statutory requirements for refugee status, she must prove that this persecution is due to the fact that she is not adequately protected by her own government.(94) In other words, it must be proved that the acts of persecution were at the hands of the government or by groups or individuals that the government either cannot or will not control.(95) Although this seems to focus on persecution by the government and government agents, it is also construed as persecution by private individuals and non-governmental groups tolerated by the authorities. For example, many governments refuse to impose criminal sanctions when the man and woman are intimate, as in a husband/wife situation.(96) Especially in those cases where the husband is connected to the government, the authorities refuse to offer protection.(97)
When a woman has met the statutory burden of proof for her claim and has cleared the "at the hands of the state" statutory hurdle, she must then prove that she falls into one of the five categories enumerated in the refugee statute. These categories are race, religion, nationality, membership in a particular social group, and political opinion.(98) The majority of gender-related claims have been brought under either a member of a particular social group or a political opinion theory.
In Gomez v. INS,(99) the Second Circuit upheld a denial of political asylum by the Board of Immigration Appeals. A Salvadoran sought asylum as a member of a particular social group of women who had been previously battered or raped by Salvadoran guerrilla forces. Ms. Gomez had been attacked five times while between the ages of twelve and fourteen.(100) Her denial was upheld because she had failed to offer evidence that the group for which she sought recognition possessed any common characteristics - other than gender and youth - which would identify them as a group to the persecutor.(101)
In Ananeh-Firempong v. INS,(102) the First Circuit court defined a particular social group as having members that share and are persecuted for "characteristics that are essentially beyond the petitioner's power to change."(103) In this case, the court recognized a social group claim without developing a reliable test for the recognition of a particular social group. It found that the petitioner had a reason to fear social group persecution when the current government persecuted: 1) those associated with the former government, 2) members of a certain tribe, and 3) the educated/professional class.(104) The petitioner's family fell within all three categories.(105) The court stated that general accounts that describe persecution of persons with the petitioner's characteristics are acceptable to prove a specific threat to the petitioner.(106) The court did not specify whether she was granted asylum because she was a member of one social group that possessed all three attributes or because she was a member of three different persecuted groups.
The Ninth Circuit, on the other hand, set out a four part test to determine when membership in a particular social group may form the basis of an asylum claim.(107) In Sanchez-Trujillo v. INS, the court stated that first it must be decided whether the class is "cognizable as a 'particular social group' under the immigration statutes." Second, it must be established that the petitioner is a member of that group. Third, it must be proved that the persecution was aimed at one of the group's unifying characteristics. Finally, the court may consider "special circumstances" which would allow for recognition of a solely group-based claim.(108) The court did not elaborate on what might constitute the "special circumstances." The test in this case was set forth in a situation inapplicable to situations discussed in this article. It is difficult to try and evaluate how a lower court would apply this test in cases of women refugees.
Sanchez-Trujillo, therefore, contradicts the Gomez case discussed previously. In Gomez, the court stated that "[p]ossession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular [social] group".(109) Although it appears to recognize the validity of a gender-based social group claim, the Second Circuit requires more than a showing of gender as a reason to justify the granting of asylum, whereas the Ninth Circuit presumably would permit a gender-based claim.
Thus, the Board of Immigration Appeals has interpreted the term "particular social group" as having two alternative criteria. "The common characteristic defining the group must be one that the members of the group cannot change or should not be required to change because it is so fundamental to the members' individual identity or conscience."(110) The Board listed specific examples of groups identifiable by such immutable characteristics and sex was among them.(111)
A second ground for fear of persecution for a gender-based claim could be categorized under political opinion. Such a case could arise when a woman is a victim of violence and either seeks protection from her government or flees the country. When she does this, she is refusing to submit to the social or cultural norm that it is a man's right to dominate and even be abusive toward his wife or partner. Her refusal is read as political resistance.
In Lazo-Majano v. INS,(112) Ms. Lazo-Majano was repeatedly harassed and raped as well as forced to do housework and chores for a sergeant in the Salvadoran military. The court construed this as the sergeant asserting the political opinion that a man has a right to dominate. By fleeing, Lazo-Majano asserted a differing opinion.(113) The court also stated that "[o]ne must continue to look at the person from the perspective of the persecutor. If the persecutor thinks the person guilty of a political opinion, then the person is at risk."(114)
This liberal interpretation by the Ninth Circuit, stands in contrast to the Campos-Guardado case discussed in the beginning of this article. Ms. Campos was denied asylum when the Fifth Circuit upheld the finding of the Board of Immigration Appeals. Ms. Campos had sought asylum because the political opinions of her family had been imputed to her. The Fifth Circuit declared that the threats to her, although not unlike the threats to Ms. Lazo-Majano, were personally rather than politically motivated.(115) The holdings of these cases and the disparity among the circuits vary too widely to be relied upon and, therefore, provide little guidance to someone seeking refuge in the U.S. based on a gender-related claim.
Due to the strict criteria one must meet prior to being granted refugee status, it is difficult for women attempting to escape gender-based persecution to meet the requirements under United States immigration law. Women are denied access into the United States because the provisions currently used for refugee determination fail to acknowledge the particular needs of some female applicants. Moreover, even if the provisions could be construed to encompass certain troublesome situations (not unlike the ones detailed in this article), most judges interpret the provisions narrowly. Thus, many of the gender-related claims are dismissed.
The United Nations has recognized and has responded to human rights violations occurring daily in some parts of the world. It is time for the United States to respond to the initiative of the United Nations and update immigration policies to reflect the current recognition of universal human rights rather than the political ideology of the past -- an ideology that fails to recognize gender persecution.
A. UNHCR Guidelines
The principal agency in the United Nations concerned with refugees, the United Nations High Commissioner for Refugees, has developed guidelines that recognize a woman's claim to refugee status may be based on circumstances particular to women. The Guidelines on the Protection of Refugee Women urge legal protection for women suffering from such abuses as severe sexual discrimination rising to the level of persecution, victimization because of the activities of a male relative, and persecution for transgressing social mores.(116)
The UNHCR has also recommended a number of measures more sensitive to the needs of these women. They include: instituting gender-sensitive procedures for interviewing women applicants for asylum;(117) providing training specifically designed to deal with women who have been sexually abused; providing an opportunity for the applicant to be interviewed without family members present; providing education to the interviewers regarding relationships between males and females in other cultures; and familiarizing adjudicators with the status and experiences of women in the country from which the applicant has fled.(118)
B. The Canadian Response
The Canadian Immigration and Refugee Board has used the UNHCR Guidelines to develop its own guidelines to assist it in its determination of refugee status regarding women.(119) The Canadian guidelines first attempt to identify the nature of the persecution claimed by the applicant. In its identification, there are four categories of "feared" persecution: 1) fear based on one of the five enumerated grounds (race, religion, nationality, social group, or political opinion); 2) fear for reasons related to kinship (the imputing of a family member's views or activities to the applicant); 3) fear resulting from severe discrimination due to gender, and 4) fear as a consequence of failing to conform to gender-discriminating cultural or social norms or practices.(120)
Once the nature of the persecution is identified, it is necessary to determine whether the feared harm is "persecution" as contemplated for refugee status. This determination is to be based upon whether the claimant's experienced or feared violence "is a serious violation of a fundamental human right for a Convention ground and [whether] the risk of that violence [can] be said to result from a failure of state protection."(121)
Other Canadian developments in evaluating a claim of a refugee are to consider an applicant's circumstances in relation to the overall human rights of her country. In order to accomplish this, Canada attempts to provide that those involved in individual evaluations specialize in claims involving particular countries of origin.(122)
While Canada's new guidelines direct asylum decision-makers to take gender into account, it is emphasized that the basic requirements for refugee determination have not changed. A woman seeking refugee status must still establish a fear of persecution because of her membership in one of the five enumerated categories and that the persecution would be due to governmental action or inaction.(123) It is not intended that Canada's guidelines create special allowances for women, but that they permit equality and consistency in refugee determination proceedings.
C. The United States
As previously mentioned, the narrow interpretation of the statutes as well as inconsistent holdings in judicial decisions have made refugee determination proceedings problematic in the United States. The United States could approach the problem of gender persecution in a few different ways in order to make the system less confusing and more cohesive.
If the United States were to implement guidelines similar to those instituted in Canada, the United States, in essence, would direct the decision-makers to take gender into account.(124) The U.S. should adopt specific gender guidelines in order to create more uniform standards in refugee determination proceedings that is lacking within the current mix of administrative and judicial proceedings.(125)
Another possibility is that, with some restructuring, the existing framework in the United States would be able to handle gender-related claims for asylum. First, Congress could develop evidentiary standards that the Board of Immigration Appeals and the circuit courts must apply. Because Congress failed to provide guidance on how to interpret the statutory requirements, the courts have been able to construe the evidentiary standards so strictly in some cases that the humanitarian goals of the Refugee Act have been compromised.
Furthermore, a number of commentators propound that the "social group" category in the U.S. statutory framework was designed to encompass a variety of different classes that are susceptible to persecution.(126) It is suggested that gender is "properly within the ambit of the social group category" and that "gender-based groups are clear examples of social subsets defined by an innate and immutable characteristic."(127) On the other hand, some feel that a more expansive interpretation of the social group category is necessary and declare that it was meant to be a catch-all category designed to protect those unable to fit their claims into one of the other four categories.(128)
Also, "political opinion" as grounds for asylum is not an unpopular idea. The Canadian guidelines state that "[a] woman who opposes institutionalized discrimination of women, or expresses views of independence from male social/cultural dominance in her society, may be found to fear persecution for reasons of imputed political opinion."(129) Under this theory, a narrow reading of "political opinion" as evidenced in the Campos-Guardado decision(130) is rejected and the theory evidenced in Lazo-Majano(131) is used.
A more liberal view would be to add a sixth category, namely "gender-based persecution," to the five bases of persecution currently recognized in the definition of refugee.(132) By doing so, Congress can ensure that immigration judges grant the protection of asylum to women who are victimized without having to struggle to fit them into an existing category.(133)
The Violence Against Women Act of 1994 mentioned above is a step in the right direction for U.S. human rights law. It will provide relief for immigrant women in the United States who are living in an abusive situation. It will not, however, provide relief for women coming to this country to escape an abusive husband or other male or simply to escape their own disagreeable culture.
The human rights community is moving in the direction of providing help to these women. At this time, it is necessary for the United States to recognize the weaknesses in the statutory scheme and begin to provide protection to these women. With carefully drafted legislation and regulations, the courts in the United States will be able to focus on the humanitarian value of providing refuge to women suffering gender-based persecution around the world.
1. Campos-Guardado v. INS, 809 F.2d 285, 287 (5th Cir. 1987).
2. Id.
3. Id.
4. Id.
5. Id. at 288.
6. Campos-Guardado, 809 F.2d at 288.
7. Id. at 290.
8. The requirements to succeed on a request to withhold deportation, as well as a request to grant an immigrant asylum, will be discussed infra notes 97-112 and accompanying text.
9. Campos-Guardado, 809 F.2d at 288.
10. Id.
11. Kathleen M. Pratt & Laurel E. Fletcher, Time for Justice: The Case for International Prosecutions of Rape and Gender-Based Violence in the Former Yugoslavia, 9 Berkeley Women's L.J. 77, 80 (1994).
12. Id.
13. Nancy Kelly, Gender-Related Persecution: Assessing the Asylum Claims of Women, 26 Cornell Int'l L.J. 625, 633 (1993).
14. Tom Post, A Pattern of Rape: A Torrent of Wrenching First-Person Testimonies Tells of a New Serb Atrocity: Systemic Sexual Abuse, Newsweek, Jan. 4, 1993, at 32.
15. David L. Neal, Women as a Social Group: Recognizing Sex-Based Persecution as Grounds for Asylum, 20 Colum. Hum. Rts. L. Rev. 203, 218 (1988).
16. Id. at 220.
17. Id. at 220-221.
18. Id. at 220.
19. Id. at 221.
20. Pamela Goldberg, Anyplace but Home: Asylum in the United States for Women Fleeing Intimate Violence, 26 Cornell Int'l L.J. 565, 566 n.1 (1993).
21. Id. at 567 n.3.
22. Id. at 565.
23. Id. at 565-566.
24. Id.
25. Id. at 566.
26. Id. at 566 n.2.
27. 42 U.S.C.A. § 14013 (1994).
28. Since Goldberg's article was written, legislation has been passed allowing battered women to petition for themselves. The Violence Against Women Act of 1994 allows for the suspension of deportations of battered women if the woman can prove extreme hardship if deported and that she married in good faith. The unfortunate side is that some women in these situations are completely compliant and have no access to such information. Jennifer McKim, Wives May Endure Abuse if Faced With Deportation, The Boston Globe, Mar. 6, 1995, at 13.
29. Goldberg, supra note 20, at 567-568.
30. Id.
31. Ellen Goodman, Step Toward Defining Abuse, The Arizona Republic, Mar. 31, 1994, at B5.
32. Usually, the clitoris and labia minor are cut out with a blade. Id.
33. Jill Lawrence, Gender Persecution: New Reason for Asylum, Human Rights: Women Face Bride-Burning, Genital Mutilation, Forced Abortions and Politically Motivated Rape, But Nations Have Been Slow to Grant Refuge, L.A. Times, Mar. 27, 1994, at A14.
34. Id.
35. Id.
36. Id.
37. Goodman, supra note 31, at B5.
38. Id.
39. Id.
40. The International Committee of the Red Cross, the International Labour Organization, the United Nations Relief and Rehabilitation Administration, the Intergovernmental Committee for Refugees, and the International Refugee Organization were organizations that assisted the refugees. Kristine M. Fox, Gender Persecution: Canadian Guidelines Offer a Model for Refugee
Determination in the United States, 11 Ariz. J. Int'l & Comp. L. 117, 119 n.25 (1994).
41. Convention Relating to the Status of Refugees, July 28, 1951, ch. I, art. I, 189 U.N.T.S. 152 (entered into force April 22, 1954).
42. Protocol Relating to the Status of Refugees, art. 1, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 6225.
43. Id. at Introduction.
44. Id. at art. 1.
45. Daniel Compton, Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar, 62 Wash. L. Rev. 913, 915 n.16 (1987).
46. 8 U.S.C. § 1101-1524 (1988 & Supp. II 1990).
47. The original Immigration and Nationality Act made asylum available to a certain number of persons fleeing only from particular countries or types of regimes. Further, the original Act did not provide asylum for aliens already in the United States. Joni L. Andrioff, Proving the Existence of Persecution in Asylum and Withholding Claims, 62 Chi.-Kent L. Rev. 107, 109 n.14 (1985-86).
48. Id. at 114 n.39.
49. Since amending the Immigration and Nationality Act, an alien may apply for asylum or request a withholding of deportation even if he has entered the United States illegally. However, if the illegal entry involved fraud or deception, the alien's application for asylum may be denied. Id. at 108 n.9.
50. 8 U.S.C. § 1158 (Supp. 1985).
51. Id. § 1253(h).
52. 8 U.S.C. § 1158 (1988 & Supp. II 1990).
53. Id. § 1101(a) (42) (A).
54. Kelly, supra note 13, at 635-636.
55. Andrioff, supra note 47, at 111 n.45.
56. Id. at 111-112.
57. Id. at 110.
58. 8 U.S.C. § 1253(h) (1) (1988 & Supp. II 1990).
59. INS v. Cardoza-Fonseca, 480 U.S. 421, 421 (1987).
60. Andrioff, supra note 47, at 113.
61. Id.
62. Id. at 112-113.
63. Id. at 113.
64. Id. at 114.
65. Id.
66. Id.
67. Andrioff, supra note 47, at 114-115.
68. See, e.g., Rejaie v. INS, 691 F.2d 139, 146 (3d Cir. 1982).
69. Id.
70. See, e.g., Stevic v. INS, 678 F.2d 401, 408 (2d Cir. 1982), rev'd on other grounds, 467 U.S. 407 (1984).
71. See, e.g., Reyes v. INS, 693 F.2d 597, 599-600 (6th Cir. 1982), vacated, 747 F.2d 1045 (6th Cir. 1984).
72. Andrioff, supra note 47, at 115 n.45.
73. 467 U.S. 407 (1984).
74. Id. at 410.
75. Id. at 410-411.
76. Id. at 411.
77. Id. at 430. The Court stated, "there is no textual basis in the [Refugee Act] for concluding that the well-founded fear of persecution standard is relevant to a withholding of deportation claim . . . ." Id. at 423-424.
78. Id. at 429-430.
79. Id. at 425-426.
80. Id. at 428.
81. Id. at 429.
82. 480 U.S. 421 (1987).
83. Id. at 424-425.
84. Id. at 425.
85. Id.
86. Id.
87. Id. at 426.
88. Cardoza-Fonseca, 480 U.S. at 432.
89. Id. at 449.
90. Id. at 430-431.
91. Gregory S. Porter, Persecution Based on Political Opinion: Interpretation of the Refugee Act of 1980, 25 Cornell Int'l L.J. 231, 243-44 n.90 (1992).
92. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir. 1984). The court stated that "[a]uthentic refugees rarely are able to offer direct corroboration of specific threats. '[I]t is difficult to imagine what other forms of testimony the petitioner[s] could present other than [their] own statement[s].' Persecutors are hardly likely to provide their victims with affidavits attesting to their acts of persecution." Id. (quoting McMullen v. INS, 658 F.2d 1312, 1319 (9th Cir. 1981)).
93. Adrianne Aron, The Gender-Specific Terror of El Salvador and Guatemala: Post-Traumatic Stress Disorder in Central American Refugee Women, 14 Women's Stud. Int'l F. 37 (1991).
94. Kelly, supra note 13, at 635.
95. McMullen, 658 F.2d at 1315 n.2. In this case, the U.S. Government conceded that persecution under the Refugee Act of 1980 § 243(h) included persecution by non-governmental groups such as the PIRA (an off-shoot of the Irish Republican Army). McMullen, a member of PIRA had fled to the United States and cooperated with the Bureau of Alcohol, Tobacco & Firearms as well as with Scotland Yard investigators with the hope of obtaining asylum.
96. Kelly, supra note 13, at 637 n.54.
97. Id.
98. 8 U.S.C. § 1253(h)(1) (1988 & Supp. II 1990); see also supra note 58 and accompanying text.
99. 947 F.2d 660 (2d Cir. 1991).
100. Id. at 662.
101. Id. at 664. The court stated that, "the attributes of a particular social group must be recognizable and discrete. Possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular group . . . . We cannot, however, find that Gomez has demonstrated that she is more likely to be persecuted than any other young woman." Id.
102. 766 F.2d 621 (1st Cir. 1985).
103. Id. at 626.
104. Id. at 623.
105. Id.
106. Id. at 626-627.
107. Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986). In this widely-criticized holding, the Ninth Circuit Court of Appeals held that young, urban, working-class Salvadoran males of military age (eighteen to thirty) who had not joined the armed services and had not expressed overt support for the Salvadoran government, were not cognizable as a particular social group. Id. at 1577.
108. Id. at 1574-1575.
109. Id.
110. Kelly, supra note 13, at 649.
111. Id.
112. 813 F.2d 1432 (9th Cir. 1987).
113. Id. at 1435.
114. Id.
115. Campos-Guardado, 809 F.2d at 290.
116. Kelly, supra note 13, at 633 n.34. Examples include choosing her own spouse, hair length, wearing lipstick and choosing her own style of clothing. Lazo-Majano v. INS, 813 F.2d 1432, 1435 n.132 (9th Cir. 1987).
117. These procedures include employing women as interpreters and interviewers when possible. Kelly, supra note 13, at 673.
118. Id.
119. Fox, supra note 40, at 135.
120. Id.
121. Id. at 136.
122. Id.
123. Id. at 138-139.
124. Id. at 143.
125. Id.
126. Goldberg, supra note 20, at 590-591.
127. Id. at 591.
128. Id.
129. Id. at 599.
130. The court in Campos-Guardado upheld the finding that "the record does not establish that [Ms. Campos] was persecuted on account of any political opinion she herself possesses or was believed by her attackers to possess." 809 F.2d at 289. The Fifth Circuit refused to recognize an imputed political opinion basis of her claim. Goldberg, supra note 20, at 604 n.203. It also disregarded the gender-related persecution as well as the political nature of the violence. Id.
131. 813 F.2d at 1432. Under this theory, if the persecutor believed that the woman was guilty of a political opinion, then the woman would be at risk in her own country. By flight, she asserted the opinion that she was hostile to the persecutor's opinions. Id. at 1435.
132. Emily Love, Equality in Political Asylum Law: For a Legislative Recognition of Gender-Based Persecution, 17 Harv. Women's L.J. 133, 152-153 (1994).
133. Id.
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