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INS Asylum Gender Guidelines

Cite as "AILA InfoNet Doc. No. 95053159 (posted May. 31, 1995)"

FACT SHEET
May 26, 1995

INS Asylum Gender Guidelines

Background

  • Human rights violations against women are not a new phenomenon in the world. Yet, only recently have they risen to the forefront of the international agenda.
    • In 1979, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) recommended the eradication of violations against women.
    • In June, 1993, the United Nations World Conference on Human Rights emphasized the need to incorporate the rights of women, and called upon the General Assembly to adopt the Declaration on the Elimination of Violence against Women. On December 20, 1993, the United Nations General Assembly adopted the Declaration.
    • There have also been Conclusions from the United Nations High Commissioner for Refugees (UNHCR). For example, in 1985 the UNHCR Executive Committee adopted Conclusion No. 39 noting that refugee women and girls constitute the majority of the world refugee population and that many of them are exposed to special problems.
    All of these international initiatives underscored and contributed to the development of guidance related to women refugee claimants.
  • The Canadians Immigration and Refugee Board (IRB) issued its asylum gender guidelines over two years ago, in March, 1993. The UNHCR issued a set of guidelines in 1991, and faculty members at Harvard Law School also submitted a proposed set of guidelines in 1994. Despite the increased attention given to gender-based asylum claims, they are still relatively new developments in refugee protection.
  • INS Implementation
  • Because gender issues are novel, and adjudicators of asylum claims are guided by recent (and still developing) U.S. caselaw, INS felt that guidance to all Asylum Officers would be appropriate to ensure uniformity in adjudications, and would allow Asylum Officers to be more responsive to bona fide asylum claims.
  • Women asylum applicants, like all applicants, must satisfy the refugee definition provided for by statute. Under U.S. law, the term refugee means "...any person who is outside any country of such person's nationality," and who is "unable or unwilling to return to...that country because of persecution or a well-founded fear of persecution on account to race, religion, nationality, membership in a particular social group, or political opinion...".
  • The U.S. refugee definition is a narrow one. Individuals cannot qualify for asylum in the United States unless the persecution is on account of one of the protected grounds specified by Congress. There must also be a favorable credibility finding by an Asylum Officer. The INS Guidelines summarize recent decision from the courts and the Board of Immigration Appeals which provide appropriate analysis for gender-related and other asylum claims. The INS Gender Guidelines do not enlarge or expand on the grounds that were specified by Congress and the understandings the courts have reached about those grounds.
  • Not all women who apply for asylum under this new guidance will be granted asylum. INS asylum decisions are individualized, case-by-case determinations. For example, INS sometimes encounter women asylum applicants who come from countries where domestic or sexual abuse is tolerated. However, to qualify for asylum these women must show, for example, that:
    • The domestic violence cannot be purely "personal". It must relate to one of the grounds enumerated in the statute.
    • The harm feared must rise to the level of "persecution". The courts have uniformly held that "persecution" denotes extreme conduct and does not include every sort of treatment our society regards as offensive, unfair, unjust, or even unlawful or unconstitutional.
    • Also, both U.S. law and the UN Protocol require that the fear of persecution must normally extend to the entire country of origin; that is, in order for an applicant to meet the definition of a refugee she must do more than show a well-founded fear of persecution in a particular place or abode within a "country" - she must show that the threat of persecution exists for her country-wide. For example, some battered women may be denied asylum because they could have sought safety from the batterer simply moving to another town or province in their country of origin. National protection should take precedence over international protection.
    In sum, every asylum applicant is carefully interviewed. No applicant can be approved unless all the definitional elements of the statute are satisfied.
  • INS does not expect the rate of asylum applications to increase because of the Gender Guidelines. That was not the experience of the Canadians who issued their guidelines more than 2 years ago.
  • Asylum Interviews/Officers: All INS Asylum Officers - men and women - will be expected to conduct interviews of women with gender-based claims. To the extent that personnel resources permit, however, Asylum Offices may allow women Asylum Officers to interview these cases. An interview will not generally be canceled because of the unavailability of a woman Asylum Officer. But INS also recognizes that, because of the very delicate and personal issues arising from sexual abuse, some women claimants may understandably have inhibitions about disclosing past experience to male interviewers.
  • Interpreters/Presence of Family Members: Testimony on sensitive issues such as sexual abuse can be diluted when received through the filter of a male interpreter. While INS encourages the use of female interpreters, interviews will not generally be canceled and rescheduled because women with gender-based asylum claims have brought male interpreters.

    Interviewing Asylum Officers will provide women with the opportunity to be interviewed outside the hearing of other members of their family, especially male family members and children. There is a greater likelihood that a woman applicant may more freely communicate a claim involving sexual abuse when family members are not present.

  • Generally, the new Guidelines will assist Asylum Officers in the attentive examination of cases, and the approval of legitimate claimants.
INS Asylum Gender Guidelines
May 26, 1995

Q: Why has the U.S. issued gender-based Guidelines for asylum?

A: In issuing the gender-based Guidelines, the INS is joining the United Nations and Canada in recognizing that women may experience discrimination unique to their gender and that is some instances, such discrimination can meet the standards for refugee status. The new Guidelines will assist U.S. asylum adjudicators in evaluating claims by women alleging persecution based on their gender.

Q: How did the new Guidelines evolve and what are some of the international initiatives they follow?

A: The new Guidelines are an outgrowth of guidelines issued by Canada in 1993, 1991 guidelines issued by the United Nations High Commissioner for Refugees dealing with the special problems of women refugees, and a proposed set of guidelines issued by the Women Refugees Project of Harvard Law School in 1994. The new U.S. Guidelines will allow U.S. asylum adjudicators to more effectively analyze gender-based claims and identify bona fide refugees and to keep pace with international legal practice related to this issue.

Q: Will the new gender Guidelines make it easier for women in general to obtain asylum in the U.S.?

A: The new Guidelines will allow INS Officers to better analyze claims by women alleging persecution based on their gender. However, women applicants, like all asylum applicants, must satisfy the refugee definition set forth in the statute -- which is a relatively narrow one.

The term refugee means "...any person who is outside any country of such person's nationality", and who is "unable or unwilling to return to...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..." INA 101(a)(42).

The INS Guidelines do not enlarge upon Congress's definition. They simply summarize and analyze recent court and Board of Immigration Appeals decisions on gender-related and other asylum claims.

Q: In many countries domestic abuse is commonplace and culturally condoned. Will the new Guidelines mean that all battered women and women from other cultures will be granted asylum in the States?

A: INS asylum decisions are individualized, case-by-case determinations. The INS may encounter women asylum applicants who come from countries where domestic or sexual abuse is tolerated. However, to qualify for asylum these women must show, for example, that:

  • The domestic violence is not purely "personal". It must relate to one of the grounds enumerated in the statute.
  • The harm feared rises to the level of "persecution." The courts have uniformly held that "persecution" denotes extreme conduct and does not include every sort of treatment our society regards as offensive, unfair, unjust, or even unlawful or unconstitutional.
  • Also, both the INA and the UN Protocol require that the fear of persecution must normally extend to the entire country of origin; that is, in order for an applicant to meet the definition of a refugee she must do more than show a well-founded fear of persecution in a particular place or abode within a "country" - she must show that the threat of persecution exists for her country-wide. For example, some battered women may be denied asylum because they could have sought safety from the batterer simply by moving to another town or province in their country of origin. National protection should take precedence over international protection.
In sum, every asylum applicant is carefully interviewed. No applicant can be approved unless all the definitional elements of the statute are satisfied. The purpose of the new Guidelines is to assist Asylum Officers in doing this analysis.

Q: How will the Gender Guidelines change how gender-based claims are treated or interviews are conducted?

A: The Guidelines will educate Asylum Officers on the current state of the law on this issue and they will direct Asylum Officers to be aware of the special sensitivities which apply to interviews when such acts are alleged.

Q: Does INS expect to be inundated by applications from women worldwide as a result of these new Guidelines?

A: INS does not expect the rate of asylum applications to increase because of the Gender Guidelines, nor has that been the experience of the Canadian government which issued its guidelines over two years ago. It must be remembered that most women refugees in the world are overseas. They often lack mobility to travel and apply for asylum from within the United States.

Q: Would the women who applied for asylum from the "Golden Venture" have been granted asylum under these new Guidelines?

A: There is no reason to believe that any of these cases would have come out differently because of the Guidelines. The INS Gender Guidelines are drafted within the bounds of U.S. caselaw, including a decision from the Board of Immigration Appeals that concluded that China's family planning practices are not on their face persecutory. INS follows that general rule when assessing claims for asylum and withholding of deportation from persons fleeing coercive family planning practices. While many such aliens may not be eligible for asylum, INS may not wish to repatriate them for humanitarian reasons.

Q: Are the Gender Guidelines consistent with the goals of asylum reform?

A: Perfectly consistent. The goal of asylum reform is to identify bona fide claims and refer those which cannot be granted to Immigration Court for appropriate proceedings. The Gender Guidelines will assist Asylum Officers in their examination of cases and in recognizing legitimate asylum claimants.

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