Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
AILA Doc No. 95053159 | Dated May 31, 1995
May 26, 1995
INS Asylum Gender Guidelines
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.
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:
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.
Cite as AILA Doc. No. 95053159.