Gender-Based Violence Among Women Seeking Asylum in the U.S.

Samantha Bryan, Fall 2020

Introduction

For many women seeking asylum in the United States due to gender-based violence in their home countries, safety is not guaranteed when they arrive. They seek protection from a range of atrocities committed against them, ranging from domestic violence in the private sphere [1], to rape and human trafficking as a result of gang violence or war. Entry onto U.S. soil and into U.S. systems present a new war, often subjecting these asylees to sexual assault at the hands of Immigration agents, medical malpractice or negligence, and further violence within displacement communities due to cultural breakdowns and lack of protection [2]. The process for gaining refugee status and state protections is a long and challenging one, due to gender not being an explicit asylum category despite years of legal battles to change it. This lack of clear criteria and subsequent challenges for asylees’ case defenses force victims into a precarious position within a system that favors policy over humanity.

Gender Based Violence: From Country of Origin to the United States

Violence against women seeking asylum takes various forms in their countries of origin. One of the most challenging categories to defend in court is violence that occurs in the private sphere, due to its secretive and individualized nature, as well as the possibility that the particular culture in question might accept these acts as norms instead of violations [3]. This includes sexual or domestic violence, emotional or economic abuse, incest, forced marriage, forced pregnancy, honor killings, widow’s rituals, and genital mutilation [4]. The second category deals with public violence such as gang activity, war, or acts of population control due to genocide. This includes rape, kidnapping, human trafficking, forced marriages, restrictions on reproductive care, and selling women into slavery [5].
When these women make the hard- and often perilous- decision to leave their home, their journey toward asylum is frequently not the start of a peaceful new life. Many of them become prey for human traffickers, gangs, and violent border security agents [6]. If they are not immediately deported when they reach the border, asylum seekers will either be detained for a credible fear screening, released into the community on parole, or sent back to displacement communities in Mexico while they wait for their court dates. In these communities, women can be subjected to similar violence that they have given up their former lives for in order to escape. Many women will opt for “protection marriages” to avoid rape and gang violence, believed to be the result of displacement’s effect on the breakdown of behavioral norms [7]. Not only are these women at the mercy of the individuals they live amongst, but they are also subjected to sexual abuse by those in power, such as humanitarian staff and migration administration [8].

U.S. detention centers are also dangerous places for women seeking asylum. In September 2020, whistleblower Dawn Wooten, a nurse working in a Georgia detention center, brought the public’s attention to non-consensual hysterectomies being performed on female detainees [9]. As a result, Congress has called for an investigation of these reports, because “when directed at a particular racial, national, or ethnic group, forced sterilization is an act of genocide.[10]” Laura Wilson from Global Rights for Women reports that medical malpractice and sexual abuse in U.S. Immigration and Customs Enforcement (ICE) facilities are common. She shares accounts of guards assaulting detainees after taking them out of view of cameras.

Women are regularly threatened with deportation if they report sexual or medical injustices committed against them in ICE detainment centers [11]. Whether in detainment or community settings, asylees are unlikely to report gender-based violence due to the potential for destabilizing their housing or application status [12]. They may also avoid seeking medical help in the case of rape or assault to avoid discrimination or cultural misunderstandings [13].

Gender in the Legal Battle for Asylum

In the United States, asylum seekers must prove that they have faced past persecution in their country of origin, or have reason to believe that they will face future persecution based on the categories of race, religion, nationality, membership in a particular social group, or political opinion [14]. Despite decades long efforts to add gender to this list, it remains an ineligible category on its own. Opponents of the addition of gender-based asylum believe that such a broad category would overwhelm the immigration system [15], despite the reality that women are still applying based on their gender, regardless. In the absence of what would be a clearly defined option, women are instead encouraged to apply for asylum under membership in a particular social group (PSG).

The process for applying for asylum due to gender-based violence under the category of membership in a particular social group is an arduous one. In Matter of A-B 2018, Attorney General Jeff Sessions overturned the 2014 Board of Immigration Appeals’ (BIA) decision that better allowed women fleeing from domestic violence to apply for asylum. He believed that this demographic was too broad to qualify as a social group defined by its persecution, and encouraged judges to reject such cases, many of whom deciding to interpret this as a ban [16]. The Matter of A-B states that any asylum applicant seeking to defend a claim under PSG must demonstrate:

(1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her. [17]

The defendant must prove that her “immutable characteristic” is the absolute reason for her persecution. This can be challenging for two main reasons. Firstly, in the event of independent actors, all a woman has is her word, and it will be nearly impossible for her to prove exact motive of her abuser [18]. Second, in a culture where gender-based violence is either normalized, or in societies where assault and rape are cause to shame and punish the victim, the ability to collect testimonies to prove a gender-based motive can be met with overwhelming obstacles [19]. In the second section that defines proof of government response, this lack of awareness for complex state behavior leaves these asylum seekers vulnerable to having their cases denied. Some countries of origin will have laws that are against the persecution being experienced, but culturally this protection is not enforced.

Matter of A-B also states that:
If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim. [20]

In her piece entitled, “Women and Girls Facing Gender-based Violence, and Asylum Jurisprudence”, Irena Lieberman argues that this qualification of a flawless testimony is unrealistic for traumatized survivors of violence. She contends: “Women suffering from post-traumatic stress disorder will have difficulty recounting their ordeal confidently, coherently, and consistently. Ironically, the precise manifestations of post-traumatic-stress, such as selective memory and difficulty recounting certain details, are the same indicators that judges use to assess an applicant’s credibility.”[21]

One such case was Pena-Paniagua v. Barr, wherein a Dominican woman was seeking asylum based on domestic violence she suffered at the hands of the father of her child. The lower courts of the BIA rejected her case, finding minor inconsistencies in her account. They also disbelieved her claim that the government was unwilling to help, due to the police filing her reports as attempted homicide. The judge failed to consider that despite this filing, there was no follow-up and violence persisted. However, in April 2020, the First Circuit Court of Appeals overturned this ruling and held the lower court accountable for its error, stating that they did not give Pena-Paniagua sufficient consideration. This decision echoes the BIA’s standards prior to Attorney Session’s overturning, and maintains the integrity of a long fought litigation battle for gender rights for asylum seekers.

Conclusion

Women seeking asylum in the United States due to gender-based violence are faced with an unended series of obstacles and potential for further violence, with no guarantee that they will be given protection in the end. From atrocities at home such as rape, trafficking, genital mutilation, and honor killings, to encounters with gang and border security violence, up through abuse suffered in displacement communities and detainment centers, these women are tossed around in a world where there is seemingly no justice or accountability. If they make it to court, they are subjected to a legal system that is designed to discount and dismiss them. For these women attempting to find relief in the supposed home of the brave, they may likely instead come up against an inhospitable nation that is indifferent to their cause.

Notes

[1] Lieberman, Irena. 2002. “Women and Girls Facing Gender-Based Violence, and Asylum Jurisprudence.” Human Rights: Chicago 9-11.

[2] Obradovic, Marija. 2015. United Nations University. November 9. Accessed 2020. https://unu.edu/publications/articles/protecting-female-refugees-against-sexual-and-gender-based-violence-in-camps.html.

[3] Lieberman, Irena. 2002. “Women and Girls Facing Gender-Based Violence, and Asylum Jurisprudence.” Human Rights: Chicago 9-11.

[4] Bhargava, Shebani, and Shreenandini Mukhopadhyay. 2020. Intlawgrrls. August 13. Accessed 2020. https://ilg2.org/2020/08/13/the-quest-for-gender-based-asylum-exploring-women-as-a-particular-social-group/.

[5] Ibid.

[6] Obradovic, Marija. 2015. United Nations University. November 9. Accessed 2020. https://unu.edu/publications/articles/protecting-female-refugees-against-sexual-and-gender-based-violence-in-camps.html.

[7] Ibid.

[8] Ibid.

[9] Treisman, Rachel. 2020. NPR. September 16. Accessed 2020. https://www.npr.org/2020/09/16/913398383/whistleblower-alleges-medical-neglect-questionable-hysterectomies-of-ice-detaine.

[10] Wilson, Laura. 2020. Global Rights for Women. September 21. Accessed 2020. https://globalrightsforwomen.org/featured/violence-against-women-and-girls-ice-custody/.

[11] Ibid.

[12] Hall, Deborah, interview by Worcester State University. 2020. Domestic Violence and Police Abolition Panel Discussion (October 20).

[13] Obradovic, Marija. 2015. United Nations University. November 9. Accessed 2020. https://unu.edu/publications/articles/protecting-female-refugees-against-sexual-and-gender-based-violence-in-camps.html.

[14] U.S. Citizenship and Immigration Services. 2020. U.S. Citizenship and Immigration Services. October 30. Accessed 2020. https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum.

[15] Lieberman, Irena. 2002. “Women and Girls Facing Gender-Based Violence, and Asylum Jurisprudence.” Human Rights: Chicago 9-11.

[16] Bookey, Blaine, interview by Center for Gender & Refugee Studies. 2020. Asylum in the 21st Century: What’s New? Ep. 1 (April 30).

[17] Sessions, Attorney General Jeff. 2018. “Matter of A-B-, Respondent.” U.S. Department of Justice Office of the Attorney General. 316-346.

[18] Lieberman, Irena. 2002. “Women and Girls Facing Gender-Based Violence, and Asylum Jurisprudence.” Human Rights: Chicago 9-11.

[19] Ibid.

[20] Sessions, Attorney General Jeff. 2018. “Matter of A-B-, Respondent.” U.S. Department of Justice Office of the Attorney General. 316-346.

[21] Lieberman, Irena. 2002. “Women and Girls Facing Gender-Based Violence, and Asylum Jurisprudence.” Human Rights: Chicago 9-11.

Further Reading

1. U.S.: Investigate “Remain In Mexico” Program. Human Rights Watch.

2.) They Are (Still) Refugees: People Continue to Flee Violence in Latin American Countries. Center for American Progress.

3.) The must-knows on femicide. The Fem[in]icide Watch.