This material is reproduced with permission from the copyright holder. Please cite as 6 Texas Journal of Women and the Law 181.
GENDER-BASED PERSECUTION AND POLITICAL ASYLUM: THE INTERNATIONAL DEBATE FOR EQUALITY BEGINS
GREGORY A. KELSON*
Introduction ............................................................................................................. 182
I. Types of Gender-based Persecution ................................................................... 184
A. Definition of Gender-based Persecution ........................................................... 184
B. Female Circumcision .......................................................................................... 185
C. Rape ..................................................................................................................... 185
D. Morality Codes ..................................................................................................... 186
E. Physical Violence ................................................................................................ 188
II. Analysis of Prominent Cases Worldwide ............................................................ 189
A. The Case of Sofia Campos-Guardado ................................................................. 189
B. The Case of Parastoo Fatin ................................................................................. 191
C. The Case of Aminata Diop .................................................................................. 195
D. The Case of Ting Ting Cheung .......................................................................... 197
III. Legal Remedies .................................................................................................. 201
A. Laws and Statutes ................................................................................................ 201
B. Human Rights Instruments .................................................................................. 205
C. Canadian Guidelines ............................................................................................. 208
D. American Guidelines ............................................................................................. 209
IV. Recommendations and Conclusion ...................................................................... 211
A. Recommendations .................................................................................................. 211
B. Coda ........................................................................................................................ 212
[End of Page 181]
INTRODUCTION
In an earlier article, I stressed the need for the United States to "reform its political asylum laws and grant political asylum based on . . . gender-related persecutions." 1 This premise not only holds true for the United States, but for all world governments. There is now a growing movement around the world for more governments to follow the lead of Canada and the United States in granting asylum to victims of gender-based persecution. 2
It is estimated that most of the world's refugees are female. 3 These women are fleeing various types of persecution, including female circumcision, morality codes, rape, and other forms of violence. 4 Charlotte Bunch, a noted feminist author, has observed:
Significant numbers of the world's population are routinely subject to torture, starvation, terrorism, humiliation, mutilation, and even murder simply because they are female. Crimes such as these against any group other than women would be recognized as a civil and political emergency as well as a gross violation of the victims' humanity. 5 [End of Page 182] But even after fleeing their home countries, female refugees are being subjected to "continuing gender-related abuse including sexual harassment, rape, and torture by pirates, smugglers, border guards, camp administrators, and employers." 6
Persuading governments to grant asylum to these women is difficult "because of the absence of explicit recognition of gender-based persecution, and because of the social and political context in which the claims of women are adjudicated." 7 Because gender is not one of the enumerated grounds of persecution in the 1951 Convention Relating to the Status of Refugees ("1951 Convention") or the 1967 Protocol Relating to the Status of Refugees ("1967 Protocol"), 8 adjudicators have neglected gender-based claims in detailing the accepted grounds of persecution. 9 Pamela Goldberg highlights an additional factor: "The substantive law applied in evaluating whether an individual is eligible for refugee status is generally narrowly construed and does not usually recognize the full panoply of issues shaping an individual's reasons for seeking safe haven. This is particularly true in regard to claims presented by women." 10 Another problem is that women often must plead their asylum cases before male adjudicators, who tend to regard gender-based persecution as private and personal instead of the socially significant phenomenon that it is. 11
Part I of this article will examine various types of persecution that are unique to women. Part II examines the current status of asylum law with respect to gender-based persecution by looking at several prominent asylum cases in the United States, Canada, France, and Australia. Part III will examine asylum laws and statutes around the world along with various international human rights instruments that are meant to protect women. I will also take a closer look at Canada's guidelines for granting asylum to claimants suffering gender-based persecution and how they have affected the granting of asylum both in Canada and worldwide. [End of Page 183] This section will also examine the gender guidelines that were adopted in the United States and the impact they have had on U.S. law. Finally, in Part IV, I will make recommendations on how various national governments and the United Nations should proceed in the granting of political asylum to women who claim persecution based on gender.
I. TYPES OF GENDER-BASED PERSECUTION
A. Definition of Gender-Based Persecution
There is no standard definition of persecution in the United States or any other country. 12 The Office of the United Nations High Commissioner for Refugees (UNHCR), in its Handbook on Procedures and Criteria for Determining Refugee Status, infers from Article 33 of the 1951 Convention that persecution is "a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group." 13 The handbook continues by saying:
Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case, including the subjective element to which reference has been made. . . . The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary. 14
This statement by the UNHCR suggests that the five types of persecution enumerated in the 1951 Convention and the 1967 Protocol should not be seen as exhaustive. This article will propose and concentrate on a sixth category: persecution by gender. This sixth category would encompass forms of persecution that occur because a person is of a particular sex (for the purposes of this article, women). In order to introduce the reader to this new category, I will to focus on several forms of persecution by gender, namely, female circumcision, rape, morality codes that reduce a woman's status, and physical violence. Under the 1951 Convention, the 1967 Protocol, and the asylum laws of [End of Page 184] most countries, claiming persecution based on these circumstances alone is not sufficient grounds for asylum unless the act falls within the five enumerated forms of persecution. I will argue in this article that each is an independent form of persecution that should be recognized in national and international law.
B. Female Circumcision
The practice of female circumcision 15is approximately twenty-five hundred years old, predating both Christianity and Islam. 16 Female circumcision involves the removal of the clitoris in one of three procedures. The first, known as excision, involves the removal of the prepuce, or hood, of the clitoris. In the second procedure, known as clitoridectomy, the clitoris is removed along with the labia minora, leaving the vulva intact. The most severe form, infibulation, involves the removal of the clitoris, labia minora, and labia majora. The vulva is then sutured together, leaving only a small opening for the passage of urine and menstrual fluid. 17
It is estimated that over one hundred million women worldwide have undergone female circumcision. 18 The victims of the practice are usually infants and toddlers, although the procedure is also performed on teenagers and adult women. Female circumcision is practiced in about forty countries. 19
C. Rape
This category of gender-based persecution is perhaps the most hotly debated around the world. Rape has been defined by one commentator as [End of Page 185] "forced sexual intercourse, or threats thereof." 20 Another commentator points out that women who base their claims of persecution based on rape are frequently denied asylum because the rape "is frequently viewed as a 'personal' act of violence rather than one of 'political' persecution." 21 But Jacqueline Castel points out that "[r]ape and other forms of sexual violence are inflicted on women detainees in many countries, but rarely inflicted on men. Interrogators and other government officials use rape as torture to intimidate women from pursuing activities that are viewed as subversive and to extract information or confessions." 22
Courts have ruled that women cannot assert a right to asylum for rape or other sexual assaults based on the claim that they are "members of a particular social group," one of the five accepted grounds of persecution. 23 The case of Sofia Campos-Guardado, analyzed in Part III, gives us an excellent example of this point.
D. Morality Codes
In January 1979, Reza Pahlavi, the last reigning Shah of Iran, was forced into exile. With his departure and the assumption of power by Ayatollah Ruhollah Khomeni, women's rights in Iran were set back approximately seventy years. Prior to this time, women's rights had been expanded with the Constitutional Revolution of 1907; women were [End of Page 186] declared emancipated and traditional women's clothing had been abolished by the Shah in 1936; and the Family Protection Act of 1963 had been passed, allowing women to seek divorce and gain custody of children and banning male poligamy. 24 Laws that gave a husband the final say in whether or not his wife worked or traveled alone were not enforced. 25 Fifteen days after Khomeni took power, the Family Protection Act was repealed. 26 "Polygamy once again became accepted practice, divorce became the unique right of men, and the legal age for marriage was declared to be nine years old for girls." 27 Iranian women are not allowed to marry foreigners without written permission from the Ministry of the Interior. 28 A man is permitted to have up to four wives and as many concubines as he wants. 29 A married woman must be willing to meet her husband's sexual needs at all times or else lose her right to shelter, food and clothing. 30 "Divorce is the indisputable right of men," but not women. 31 Women receive custody of their children "only if there is no father or grandfather living." 32
Employment and educational opportunities were also curtailed for women after the Khomeni regime came to power. Khomeni declared that "the physical and mental weakness of women [makes] them incapable of taking up certain jobs." 33 The government fired over forty thousand women teachers, and prohibited the employment of women in government. 34 Because of strict segregation of teachers and students, many schools for girls closed because of a lack of female teachers, meaning that in many rural towns girls were denied education altogether. 35
Perhaps the most well-known and most unpopular facet of life for women in Iran is the strict Islamic dress code, especially the wearing of [End of Page 187] the chador, a veil which is worn to cover the hair and face, which became mandatory for all women. Khomeni declared on March 6, 1979, "From now on, women have no right to be present in the governmental administration naked. They can carry on their tasks, provided they use Islamic dress." 36 Women are searched to make sure that they are not wearing cosmetics or thin stockings and are subject to fines or lashings if they are not dressed properly. 37
The case of Iran is not unique. Morality codes aimed at regulating women's behavior exist and are enforced in many Middle Eastern and Asian countries as well. 38
E. Physical Violence
Many people have been concentrating on the case of People v. O.J. Simpson, which has centered attention on domestic spousal abuse. 39 In fact, the Federal Bureau of Investigation estimates that a woman is beaten in this country every eighteen seconds. 40 The United States, however, does not have an exclusive monopoly on physical violence toward women. There are countries in which physical violence is overlooked and, in some cases, even encouraged.
In Peru, for example, seventy percent of the cases reported to the [End of Page 188] police are cases of women being beaten by their partners. 41 Wife beating is the second most frequent cause of divorce in Japan. 42 Until 1980, a husband was able to kill his wife for adultery in Colombia. 43 Wife killings in Brazil were considered to be noncriminal "honor killings" until 1991. 44
II. ANALYSIS OF PROMINENT CASES WORLDWIDE
Now that we have quickly surveyed certain forms of gender-based persecution, I will examine more closely several representative asylum cases from the United States, France, and Canada. 45 These cases will outline the need for a sixth category of persecution based on gender. All of the following cases were decided within the accepted grounds for persecution as defined in the 1951 Convention and the 1967 Protocol, with varying results.
A. The Case of Sofia Campos-Guardado
Sofia Campos-Guardado was a native of El Salvador who entered the United States illegally in the fall of 1984. 46 Earlier that year, while still in El Salvador, she visited her uncle, who lived in another town, in order to repay a debt owed by her father. When she arrived, she found her uncle "apprehensive" because two men had demanded money from him the day before. 47 Later that day, two men with rifles and a woman arrived and knocked down the door. 48 Ms. Campos, her uncle, a male cousin, and three female cousins were dragged to the edge of the farm's waste pit. 49 The victims were all tied by the hands and feet and the women were gagged. 50 The attackers then hacked the skin off of the men's bodies with machetes and finally shot them to death while the four [End of Page 189] women watched. 51 The male attackers then raped Ms. Campos and her three female cousins while the female attacker "shouted political slogans." 52 The victims were then cut loose and told to run or be killed. 53 They ran and were taken to a hospital in San Salvador where Ms. Campos suffered a nervous breakdown and was hospitalized for fifteen days. 54
Ms. Campos went to work in a factory in San Salvador upon her release from the hospital, choosing not to return to live with her parents. 55 On a visit home, her mother introduced her to two men whom she said were cousins of Ms. Campos. 56 Ms. Campos immediately recognized one of them as one of the men who raped her at her uncle's home. 57 The man later threatened to kill Ms. Campos and her family if she ever revealed his true identity. 58 Ms. Campos came to the United States after guerrillas burned down the factory where she worked in San Salvador. 59
In her original appeal to the Board of Immigration Appeals ("BIA"), Ms. Campos argued that she had been persecuted in El Salvador based on her "political opinion" and "membership in a particular social group." 60 Specifically she asserted that:
[S]he was persecuted in El Salvador for political opinions attributed to her by her assailants, on account of her family membership, and because of the concommitant association of the family with the agrarian land reform movement; as an eyewitness to the political assassination of her uncle and cousin, she is subject to future persecution if deported to El Salvador. 61
The BIA accepted the veracity of Ms. Campos' account of what happened at her uncle's house, but said that Ms. Campos "had not shown that the attackers harmed her in order to overcome any of her ownpolitical opinions." 62 The BIA concluded that "while the attackers may [End of Page 190] have been motivated by their own political goals . . . the record does not establish that [Ms. Campos] was persecuted on account of any political opinion she herself possessed or was believed by the attackers to possess." 63 In regard to the threat that she received from her cousin-assailant, the BIA concluded that the threats "were personally motivated--to prevent her from exposing his identity--and that there was 'no indication he maintained an interest in her because of her political opinion or any other grounds specified in the Act."' 64
In her appeal of the BIA's decision, Ms. Campos further contended that, in looking at the language of the opinion, it was clear that the BIA "failed to consider all of the relative evidence." 65 She further argued:
[T]he reasons motivating the persecutor are of greater importance than any opinion actually held by the victim. [Ms. Campos] asserts the record is replete with evidence that peasant leaders in the agrarian reform movement and their families are singled out for persecution; once she was in her uncle's home, his political views were attributed to her. Therefore . . . it was unreasonable for the Board to assume that the persecutors' reasons for victimizing her were different from their political motivation behind the torture, execution and rape of her family members. Further, as an eye-witness to the political assassination of her relatives, she contends that she is now a permanent target for future persecution. 66
I would also agree with Ms. Campos' belief that she would be a target for further persecution, not only from her cousin-assailant, but from the guerillas in El Salvador in general, because of association. Ms. Campos should have been granted asylum because the persecution she was fleeing was not merely personal but political and took the specific form it did because she was a woman. With gender-based guidelines in place, this would have been clear to the BIA.
B. The Case of Parastoo Fatin
Parastoo Fatin came to the United States from Iran on December 31, 1978, approximately two weeks before the last Shah of Iran went into exile. 67 She filed for asylum in May 1984 by completing Immigration [End of Page 191] and Naturalization Services ("INS") Form I-589. 68 According to the form used at that time, Question 31 asked Ms. Fatin was asked: "What do you think would happen to you if you returned to your home country?" 69 She replied: "I would be interrogated, and I would be forced to attend religious sessions against my will, and I would be publicly admonished and even jailed." 70 Question 34 asked: "Have you or any member of your family ever belonged to or been associated with any organization or groups in your home country?" 71 She responded:
I personally belonged to a student group that favored the Shah. We refused to demonstrate with the students who favored Khomeni. I refused to wear a veil which was a sign or badge that I favor Khomeni. My cousin . . . is now a refugee living in Paris, France. He was formerly one of the guards for the Shah. 72
In response to question 37, which asked if the conditions in Iran affected her freedom more than other citizens of the country, 73 she responded, "The present Iranian Government now looks with greater suspicion at famil[ies] having education and some wealth." 74 Finally, question 38 asked: "Have you or any member of your family ever been arrested, detained, interrogated, convicted and sentenced, [or] imprisoned in your country, any other country, or in the U.S.?" 75 In response, the immigration judge noted that "her father, a physician, had been harassed by 'religious fanatics,' but that the harassment had stopped after war broke out between Iran and Iraq and doctors were desperately needed. She also stated that two of her cousins had been jailed for about one year." 76
The INS District Director denied Ms. Fatin's application for asylum because she had failed to show a well-founded fear of persecution. 77 In [End of Page 192] May 1986, after conceding deportability due to the fact that she was no longer in college, she renewed her application for asylum and also applied for withholding of deportation. 78 At a hearing before an immigration judge a year later, she also noted that she wanted to apply for suspension of deportation. 79 After the hearing, in which Ms. Fatin described herself as a feminist and stated that she would be subject to jail or public punishment, the immigration judge denied Ms. Fatin's petition. 80 In his opinion, the judge noted:
[Ms. Fatin] has offered no objective indic[i]a which would lead the Court to believe that there is a possibility that she would be persecuted upon return to Iran. Respondent has not been political[ly] active in the United States nor openly opposed to the Khomeni Government. It would appear that her fear of return to Iran while indeed understandable is based upon uncertainty and the unknown. In addition, it would appear that the respondent's fear upon return to Iran is her apparent dislike for the system and her belief that she as a woman would be subject to the severe restrictions presently imparted on Iranian[s] in that country. Respondent therefore contends that her belief as a "feminist" would be compromised. While the Court is very much sympathetic to the respondent's desire not to return to Iran, nonetheless, in applying the law to include case law, the Court is compelled to find that the respondent has failed to sustain her burden of proof necessary to be accorded asylum in the United States. 81
Ms. Fatin then appealed to the BIA. 82 In her brief, Ms. Fatin claimed "that she feared persecution 'on account of her membership of a particular social group, and on the basis of her political opinion."' 83 Her group was "'the social group of the upper class of Iranian women who supported the Shah of Iran, a group of educated Westernized free-thinking individuals."' 84 Ms. Fatin stated that she would "'try to avoid practicing a religion as much as she could"' and avoid the traditional role of Islamic women in Iran, but feared that "'through religious ignorance and inexperience she would be unable to play the role [End of Page 193] of a religious Shi'ite woman."' 85 Ms. Fatin supported her argument by describing what would happen to her if she did not wear the chador:
In April 1983, the government adopted a law imposing one year's imprisonment on any women caught in public without the traditional Islamic veil, the Chador. However, from reports, it is clear that in many instances the revolutionary guards . . . take the law into their own hands and abuse the transgressing women. . . . 86
Ms. Fatin raised a similar argument in terms of her political opinion, stating that she had "deep-rooted beliefs in freedom of choice, freedom of expression [and] equality of opportunity for both sexes." 87
The BIA dismissed the appeal. In its rejection, the Board stated that there was no evidence that she would be singled out for persecution, but that she would be "'subject to the same restrictions and requirements' as the rest of the population." 88 The board also noted that there was "a considerable passage of time since [Ms. Fatin] was in high school and participated in political activities" and that her appeal was based on circumstances that happened since the time of her arrival in the United States. 89
Ms. Fatin then took her appeal to the United States Court of Appeals for the Third Circuit. In looking at her claim that she was a member of a particular social group, the court considered the definition of the phrase "membership of a particular social group." The court noted that there was no hard and fast definition of the phrase in legislative history, saying that it is "open- ended." 90 In light of this, the court applied a test from a prior immigration case, Matter of Acosta, to interpret the phrase. 91 In applying this test, the court found that "Iranian women who find their [End of Page 194] country's gender-specific laws offensive and do not wish to comply with them" was constitutive of a particular social group. 92 However, the court held that this group's adherence to the strict Islamic laws of Iran would not amount to persecution. 93 Thus Ms. Fatin could not apply for asylum based on a fear of persecution due to membership in a particular social group. 94
With respect to her argument that she faced persecution because of her political opinion--couched by the court as Iranian "feminism"--the court stated that her argument was the same as her claim that she faced persecution as a member of a particular social group. 95 In other words, the court held, again, that adherence to the laws of Iran did not constitute persecution. 96
In effect, the court ignored Ms. Fatin's statements that she had rejected the social mores enacted into law by the Khomeni regime and that it would be dangerous for her to return to Iran with this ideology. The court, by saying that all Iranian women are subject to these laws, implied that as long as Ms. Fatin adhered to these laws, she would not suffer persecution. However, these laws are persecutory to women; the BIA should have recognized this and granted asylum. Had gender guidelines been in place at the time of this trial, Ms. Fatin would have had a better chance of being granted asylum.
C. The Case of Aminata Diop
Aminata Diop is a citizen of Mali who was engaged to be married and thus subject to female circumcision. 97 She refused to submit to the [End of Page 195] procedure and the engagement was broken off. 98 In 1990, she fled from her village because her ex-fiance and family had threatened to perform the procedure on her "whether by her consent or by force." 99 She left Mali and traveled to France via Belgium. 100 Ms. Diop told the French authorities that if she were deported to Mali, "she [would] not be able to avoid [being circumcised by excision,] or the various forms of discrimination directed at uncircumcised women." 101
The French Office for the Protection of Refugees and Stateless Persons denied her claim for three reasons. First, the opinion noted, that female circumcision "is widely practiced, as a form of ritual, among certain ethnic groups making up the population of Mali[.]" 102 The opinion continued:
[I]f the requirement of this operation were due to the command of public authority, or if this requirement were encouraged or even only freely tolerated by such public authority, within the meaning of [Article I, paragraph A(2)] of the 1951 Convention] it would constitute a persecution of those women who wished to except themselves from it, provided that the . . . [ [women seeking asylum], had been personally exposed to it against their will. 103 [End of Page 196] Second, Mali authorities, while not encouraging the practice, had not as of the release of the opinion criminalized female circumcision, supporting the assumption that the practice was endorsed by the government. However, it is only tolerated by the government as to women who are circumcised while under the guardianship of their parents or adult women who independently choose to be circumcised. Thus, the opinion seems to argue, an adult woman couldgo to Mali's government for protection. The only way that an adult woman can be granted refugee status under the Convention would be if she were refused any protection by the government. 104
Third, the opinion stated that Ms. Diop's assertion that she fled Mali because of fear of forced circumcision lacked credibility. 105 The opinion noted that when Ms. Diop, on her own admission, spent "two months during which she prepared her departure in the normal course for France, she failed to ask for the protection, from the threatened persecution by her family, of the public authorities of Mali, or even of the movement militating against circumcision by excision in her native country." 106
Although the circumstances here do suggest that Ms. Diop was in no rush to get to her final destination, this is hardly conclusive. The form of persecution that she was trying to avoid is real. Female circumcision is a deadly practice, and Ms. Diop faced possible death if she returned to Mali. The procedure is a form of torture and Ms. Diop understood that. She should have been free to escape to another country to avoid this practice if she was not assured protection in her home country. 107
D. The Case of Ting Ting Cheung
Ting Ting Cheung was a national of China who entered Canada with her daughter, Karen Lee. 108 After giving birth to a son in the Chinese province of Guangzhou in 1984, Ms. Cheung started using an intra-uterine device ("IUD") as a method of birth control. 109 She thereafter [End of Page 197] removed the IUD after experiencing menstrual problems. 110 Ms. Cheung became pregnant three times over the next two years, with each of the pregnancies ending in abortion as required by the law. 111 Sterilization was urged by her doctor, but her husband was opposed to it. 112
Ms. Cheung became pregnant again in 1986 and decided against another abortion. 113 Instead, she moved in with her in-laws in Pun Yu so that authorities in her home of Guangzhou would not learn about her pregnancy and force her to have another abortion. 114 Ms. Cheung gave birth to her second child, Karen Lee, and returned to Guangzhou without her. 115
After she returned to her home, the Family Planning Bureau came and took Ms. Cheung away to be sterilized. 116 The doctor refused to perform the operation at the time, however, because Ms. Cheung was suffering from an infection that would require six months to heal sufficiently for the procedure to be performed. 117 Before the six-month period was over, Ms. Cheung fled to Pun Yu again to avoid sterilization. 118 She became pregnant again while in Pun Yu and underwent another abortion to terminate the pregnancy. 119
Over the next three years, she visited Guangzhou to visit her son, who had remained with his grandparents. 120 In 1989, Ms. Cheung took [End of Page 198] part in demonstrations pro-democracy movement in China. 121 After the demonstrations were quashed by the Chinese government, the Public Security Bureau visited Ms. Cheung's parents' home several times. 122 Ms. Cheung went to Canada soon afterward. 123
Canada's Immigration and Refugee Board ("IRB") denied Ms. Cheung's application for refugee status, determining that she did not have a well- founded fear of persecution. 124 The basic argument of the IRB's decision was as follows:
I do not read in the evidence a persecutory intent on the part of the Chinese government, simply a desperate desire to come to terms with the situation that poses a major threat to its modernization plans. It is not a policy born out of caprice, but out of economic logic.
While the central government's stated approach is that of persuasion, the evidence indicates that the coercion has been used by local authorities, who have been charged with implementing this policy. Such coercion has taken the form of steep fines, career setbacks, loss of certain privileges and involuntary abortion and sterilization. These dis-incentives, which have varied from province to province, have been accomplished by incentives to those couples adhering to government guidelines. The possibility of coercion in the implementation of this policy is not sufficient, in my view, to make it one of persecution.
It is a policy that amounts to a law of general application whose clear objective is not persecution, but general population control. . . .
I do not perceive the Chinese one-child policy to be subterfuge for some persecutive purpose and while I sympathise with those who must bow to it, I do not feel it is my purpose to tell the Chinese government how to run its economic affairs. Even though the claimant faces the possibility of being sterilized if she is returned to China, since this violation of her personal integrity is simply the implementation of a law of general application and cannot be related to one of the five Convention grounds, I do not see it falling within the gambit [sic] of the [End of Page 199] Convention refugee division. 125
Ms. Cheung appealed the decision to the Federal Court of Appeals. In overturning the IRB's decision, the court stated that "[t]he main issue . . . is whether a well-founded fear of forced sterilization under China's one-child policy constitutes a well-founded fear of persecution for reasons of membership in a particular social group." 126
The court declared that Ms. Cheung's social group was "women in China who have more than one child, and are faced with forced sterilization." 127 The opinion cited a test in another asylum case, Mayers v. Canada (Minister of Employment and Immigration), 128in declaring this group a "particular social group" under the 1951 Convention. 129
The court also determined that Ms. Cheung had a well-founded fear of persecution due to the attempted forced sterilization. 130 It cited Articles 3 and 5 of the U.N. Universal Declaration of Human Rights 131 and stated that forced sterilization is not only a violation of a woman's basic human rights, but "a serious and totally unacceptable violation of her security of the person." 132
[End of Page 200]
The court, in declaring Ms. Cheung a Convention refugee, stated:
If, for example, rather than forced sterilization, the policy was to put to death every child subsequently born to a one-child family, no one could possibly deny that the law was persecutory. There is a point at which cruel treatment becomes persecution regardless of whether it is sanctioned by law; the forced sterilization of women is so intrusive as to be beyond that point. This is not merely an "economic affair" as the board suggested in its reasons, nor is it "purely regulatory", as counsel for the Minister argued. The practice of forcing women to undergo sterilization is such an extreme violation of their basic human rightsas to be persecutory, even though this was thought to advance the modernization of China. 133
In this case, the court properly overturned the IRB decision. China violated the human rights of Ms. Cheung by forcing her to have five abortions and by compelling permanent sterilization. The court recognized this violation and was able to not only protect the rights of Ms. Cheung, but also of her daughter, Karen Lee, who would have faced a life of substandard care.
III. LEGAL REMEDIES
A. Laws and Statutes
Many countries have based their immigration and asylum laws on the 1951 Convention and the 1967 Protocol. These countries have written into their laws the five enumerated grounds for persecution. None of the countries, however, addresses persecution that can occur to only one sex (i.e., persecution by gender). This section will briefly examine some of those laws.
1. Canada The Immigration Act 134governs immigration and asylum procedures for Canada. The Immigration and Refugee Board (IRB) is charged with determining the status of all refugees who enter Canada. 135 A refugee will come before the IRB if an adjudicator determines that a person does not qualify as a "Convention refugee." 136 The IRB will hear the appeal [End of Page 201] and determine for itself if the person qualifies. 137
If the IRB determines that the person does not qualify, the person can make an appeal to the Federal Court of Appeals "on any question of law, including a question of jurisdiction." 138 This is the final course of appeal for a refugee. The case of Ting Ting Cheung is one example of this court overturning a decision of the IRB. 139 In extreme cases, the Minister of Employment and Immigration may step in and give a refugee permanent resident status in Canada. 140
2. Germany
Asylum is a basic right under Article 16a of the Basic Law: "Persons persecuted on political grounds shall enjoy the right of asylum." 141 However, the law states that a person will not be granted asylum if that person "enters [Germany] from a member country of the European Communities or from another third country in which application of the Agreement Concerning the Status of Refugees . . . is guaranteed." 142
Asylum procedures in Germany are governed by the Asylum Procedure Act of 1993. 143 The Act established the Federal Office for the Recognition of Foreign Refugees ("Federal Office"), which decides all asylum applications. 144 The head of the Federal Office is appointed by the Federal Ministry of the Interior. 145
An applicant for asylum must file an application at a branch office of [End of Page 202] the Federal Office. A hearing is then held to determine if the applicant is eligible for asylum. 146 At the hearing, the applicant:
[S]hall explain the facts underlying his fear of political persecution and provide the necessary details. The necessary details shall include information concerning residences, itineraries, stays in all other states and information on whether a procedure aimed at obtaining recognition as a foreign refugee or an asylum procedure has already been initiated or completed in other states or on the Federal Territory. 147
The Act continues by saying that:
As a rule, an alien shall not be recognized as a person entitled to asylum if the threat of political persecution is based on circumstances resulting from a deliberate decision taken by the alien after he left his country of origin, unless the decision is in line with firm convictions which he manifestly expressed while he was still in his country of origin.
The Federal Office will then hand down a written decision. 148
If asylum is not granted, the applicant can appeal to the Administrative Court. 149 If this is not successful, the applicant can appeal to the Higher Administrative Court (Supreme Court). 150 The Court will hear the appeal at its own discretion; if it is rejected, the ruling of the Administrative Court stands and there is no further appeal. 151
3. United Kingdom The Immigration Act of 1971 152and the Asylum and Immigration Appeals Act of 1993 153govern asylum procedures in the United Kingdom. Authority to enter the United Kingdom is delegated to immigration officers and the Secretary of State. 154 A person who applies for asylum formally asks the Secretary of State [End of Page 203] for permission to enter and remain within the United Kingdom. If the person is refused, the Secretary of State is required to give the person notice in writing. 155 The person can then make the claim to a special adjudicator "on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligation under the [1951] Convention." 156 If the adjudicator confirms the finding of the Secretary of State, the claimant can then appeal to the Immigration Appeal Tribunal. 157 The Tribunal is the final course of appeal for a claimant.
4. United States
In the United States, immigration procedures are governed by the Immigration and Nationality Act of 1952 158and the Refugee Act of 1980. 159 The Attorney General of the United States is charged with carrying out these laws. 160 That authority has been delegated to the Immigration and Naturalization Service of the U.S. Department of Justice. 161
A person applying for asylum must first file Form I-589, "Request for Asylum in the United States." 162 The case is assigned to a hearing officer, who determines if the applicant can be granted asylum. 163 If the hearing officer determines that the applicant has not shown a well-founded fear of persecution, deportation is ordered. 164
The case is then assigned to an immigration judge to determine deportability. 165 If the judge does not grant asylum, the applicant can appeal to the BIA. 166 At this point, the applicant has exhausted the administrative process.
If the BIA upholds the immigration judge's adverse ruling, the applicant can then apply to the federal court of appeals in the circuit where the applicant lives. If the court upholds the decision of the BIA, [End of Page 204] the applicant can then appeal to the U.S. Supreme Court. The Court, at its discretion, may hear the case.
B. Human Rights Instruments
In 1948 the United Nations declared, "Everyone has the right to seek and enjoy in other countries asylum from persecution." 167 This has not universally been the case in practice, as our earlier cases have shown. But several human rights instruments do exist for this purpose.
1. Universal Declaration of Human Rights
When it was passed by the United Nations on December 10, 1948, the Universal Declaration of Human Rights set the standard for the entire world to follow. Article 1 declares, in part, "All human beings are born free and equal in dignity and rights." 168 But do men and women equally share the same rights under the declaration? If we were to break down the declaration, we could interpret only two articles that deal directly with women's rights. 169
Despite this, the declaration provides an avenue for equality for women seeking asylum for gender based persecution. Articles 3, 4, 5, and 18 specifically deal with the scope of this article. Article 3 of the declaration states, "Everyone has the right to life, liberty and security of person." 170 Article 4 states, "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms." 171 This would include women who are sold into the sex trade or minor girls who are sold into marriage. Article 5 states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." 172 Article 18 states:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in [End of Page 205] teaching, practice, worship and observance. 173
2. Declaration on the Elimination of Violence Against Women
In response to international pressures from non-governmental organizations, the United Nations General Assembly passed the Declaration on the Elimination of Violence Against Women 174in December 1993. This Declaration "is a significant addition to the legal definition of the human rights of women." 175 Article 1 of the Declaration defines violence against women as "any act of gender-based violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life." 176
Article 2 of the Declaration goes even further, stating that violence against women encompasses, but is not limited to:
(a) Physical, sexual and psychological violence occurring in the family, including batteries, sexual abuse of female children in the household, dowry- related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;
(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs. 177
The above definition alone would support a new category of persecution based on gender. Unfortunately, this is only a Declaration and does not have the binding force of a treaty. But it can serve as a means for educating governments concerning what constitutes persecution against women.
[End of Page 206]
3. Convention on the Elimination of All Forms of Discrimination Against Women
There is a serious case to be made that the current enumerated grounds of persecution as defined in the 1951 Convention and the 1967 Protocol discriminate against women. Even when women have used the "membership in a particular social group" definition to define their persecution, as Sofia Campos-Guardado and Parastoo Fatin did in their asylum cases, there is still a male bias against granting them asylum.
On November 7, 1967, the United Nations General Assembly approved the Declaration on the Elimination of Discrimination Against Women. At the time of its passage, it was considered a major advance toward equality for women worldwide. Article 1 of the Declaration declared "Discrimination against women, denying or limiting as it does their equality of rights with men, is fundamentally unjust and constitutes an offence against human dignity." 178 Although this was a major advance towards equality, the Declaration did not have the binding force of a treaty.
Treaty status was given to the Declaration on December 18, 1979 when the U.N. General Assembly approved the Convention on the Elimination of all Forms of Discrimination Against Women ("CEDAW"), 179which also established the Committee on the Elimination of Discrimination Against Women. 180 Article 5 of the Convention stipulates that all signatories to the Convention shall:
[M]odify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. 181
4. Guidelines on the Protection of Refugee Women
In July 1991, the United Nations High Commissioner for Refugees issued its Guidelines on the Protection of Refugee Women. These guidelines were issued to ensure that women refugees are afforded protection as they settle in a new country. The guidelines acknowledge [End of Page 207] that women share the same types of persecution as other refugees:
Women share the protection problems experienced by all refugees. Along with all other refugees, women need protection against forced return to their countries of origin; security against armed attacks and other forms of violence; protection from unjustified and unduly prolonged detention; a legal status that accords adequate social and economic rights; and access to such basic items as food, shelter, clothing and medical care. 182
But the guidelines also note that women and girls "have special protection needs that reflect their gender: they need, for example, protection against manipulation, sexual and physical abuse and exploitation, and protection against sexual discrimination in the delivery of goods and services." 183 The guidelines cover most of the physical and legal problems that women refugees can face, suggest improvements that can and should be made, and recognize that women refugees should seek asylum if confronted with violence.
C. Canadian Guidelines
In 1991, a Saudi Arabian woman known only as "Nada" came to Canada to claim refugee status, telling immigration officials that she would be arrested and tortured by Saudi police if she returned home. 184 Her application was turned down twice by the IRB, 185but, with the assistance and intervention of human rights groups and lawyers, Immigration Minister Bernard Valcourt granted Nada permanent residency on humanitarian grounds. 186
On March 9, 1993, Nurjehan Mawani, chairperson of the IRB, announced guidelines for women bringing claims of persecution based on gender in Canada. Canada thus became the first country in the world to recognize gender-based persecution. 187 As stated in the guideline's general proposition:
[End of Page 208]
Although gender is not specifically enumerated as one of the grounds for establishing Convention refugee status, the definition of Convention refugeemay properly be interpreted as providing protection to women who demonstrate a well-founded fear of gender-related persecution by reason of any one, or a combination of, the enumerated grounds. 188
Ms. Mawani told IRB members that the guidelines are not binding on them but she "expect[ed] concise reasons for negative decisions in gender cases." 189 Of the 304 women who applied under the new guidelines in 1994, 195 were granted refugee status. 190
Canada's procedures have been heavily criticized, despite these groundbreaking guidelines. The Canadian Council of Refugees says that because of the high cost of filing an application for refugee status, the government is discriminating against poorer refugee claimants, most of them women. 191 Indeed, some have said the government should intentionally discriminate against refugees on the basis of their "economic benefits." 192
D. American Guidelines
On May 26, 1995, two years after the release of Canada's groundbreaking gender guidelines, the United States Office of International Affairs of the U.S. Department of Justice issued a memorandum entitled "Considerations For Asylum Officers Adjudicating Asylum Claims From Women." The memo, from Phyllis Coven, Director of the Office of International Affairs, to the INS Asylum Officer Corps, was issued to provide "guidance and background on adjudicating cases of women having asylum claims based wholly or in part on their gender." 193
Unlike the Canadian Gender Guidelines, the American Guidelines do not create, per se, another category under which women can be granted asylum, but rather instructs Asylum Officers to be more sensitive to the [End of Page 209] plight of women coming in their own right to request asylum. Asylum Officers are to be "customer friendly" when dealing with women claimants in order to allow them to "discuss freely the elements and details of their claims." 194 The memo points to these variables:
1. The laws and customs of some countries contain gender-discriminatory provisions. Breaching social mores (e.g., marrying outside of an arranged marriage, wearing lipstick or failing to comply with other cultural or religious norms) may result in harm, abuse or harsh treatment that is distinguishable from the treatment given the general population, frequently without meaningful recourse to state protection. As a result, the civil, political, social and economic rights of women are often diminished in these countries.
2. Although women applicants frequently present asylum claims for reasons similar to male applicants, they may also have had experiences that are particular to their gender. A woman may present a claim that may be analyzed and approved under one or more grounds. For example, rape (including mass rape in, for example, Bosnia), sexual abuse and domestic violence, infanticide and genital mutilation are forms of mistreatment primarily directed at girls and women and they may serve as evidence of past persecution on account of one or more of the five grounds.
3. Some societies require that women live under the protection of male family members. The death or absence of a spouse or other male family members may make a woman even more vulnerable to abuse.
4. Women who have been raped or otherwise sexually abused may be seriously stigmatized and ostracized in their societies. They may also be subject to additional violence, abuse or discrimination because they are viewed as having brought shame and dishonor on themselves, their families, and their communities. 195
Unfortunately, the American Guidelines do not go as far as the Canadian Guidelines in recognizing gender-based persecution and the effects that it has on women claimants. 196 It is, however, a starting point that will hopefully lead to legislation and codification of regulations to [End of Page 210] assure that women refugee claimants will be treated fairly before an Asylum Officer in the United States.
IV. RECOMMENDATIONS AND CONCLUSION
As I have argued in the course of this article, there is a need for a new category of persecution, namely gender. This article has attempted to illustrate the reasons that this new category is needed and some of the situations in which it could be applied. Canada and the United States have already begun the process of recognizing gender-based persecution, but more must be done.
A. Recommendations
Listed below are my specific recommendations for instituting gender as a new category of persecution.
1. The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol
Relating to the Status of Refugees must be amended.
Before national governments begin to amend their immigration and asylum laws, the United Nations General Assembly must act. I propose that Article 1A(2) of the 1951 Convention be amended as follows (my amendments are in italics):
(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of gender, race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or hernationality and is unable or owing to such fear, is unwilling to avail himself or herselfof the protection of that country; or who, not having a nationality and being outside the country of his or herformer habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person owing to a well-founded fear of persecution for reasons of gender, that persecution shall include, but not be limited to, rape, genital mutilation, forced sterilization, domestic violence, or any other persecution that can occur to a person on the basis of being of a certain sex.
In the case of a person who has more than one nationality, the term "the country of his or her nationality" shall mean each of the countries of which he or she is a national, and a person shall not be deemed to be lacking the protection of the country of his or hernationality if, without any valid reason based on well-founded [End of Page 211] fear, he or shehas not availed himself or herselfof the protection of one of the countries of which he or sheis a national.
Once this amendment is added to the definition of the term refugee, Article 1 of the 1967 Protocol will cover those countries who are not parties of the Convention but are parties to the Protocol. 197
2. World governments must begin recognizing gender-based persecution based on
the 1951 Convention and the 1967 Protocol.
As I noted earlier, many countries have modeled their asylum laws on the 1951 Convention and the 1967 Protocol. 198 The first step towards recognition of gender-based persecution would be the establishment of asylum guidelines that incorporate gender as a separate category of harm. Canada and, to a lesser degree, the United States have already taken the lead in doing this.
After guidelines are established, it is important for immigration authorities to begin to implement them. Canada, for example, strongly urges members of the IRB to consider its guidelines when determining gender-based claims or to be prepared to give reasoning why they were not used. 199
The final step would be for each government to amend its asylum laws to incorporate the new language from the 1951 Convention and 1967 Protocol into its own laws. This may mean clarifying the language of "persecution by gender," within the definition section of the law. Once the amendments are codified into national laws, the country will have a true commitment to recognizing persecution by gender.
B. Coda
The process for the recognition of gender-based persecution will not [End of Page 212] come quickly, nor will it come painlessly. There will no doubt be many governments and legislatures that will not recognize that there are certain types of persecution that can and do occur to a person because she is of a certain sex. In the guidelines and evidence that this article has given, it is hoped that we are truly on our way to discussing the need to recognize these forms of persecution and giving women the protection that they so need and deserve.
************************************************
* Executive Director, Institute for Women and Children's Policy, Chicago, Illinois. This article was the result of a paper that was presented at the 37th Annual Meeting of the International Studies Association, April 16- 20, 1996, San Diego, California. I would like to thank Nanette Elster, Steven Manley, Stephen Sowle, and Bryan Wildenthal for their review and comments on the various drafts of this article.
1 Gregory A. Kelson, Granting Political Asylum to Potential Victims of Female Circumcision, 3 Mich. J. Gender & L. 257, 298 (1995).
2 The Office of the United Nations High Commissioner for Refugees recently urged "more countries to follow Canada and the United States in drafting guidelines recognizing a woman's right to international protection against 'gender-based persecution."' Stephanie Nebehay, Sexual Violence Entitles Women to Refugee Status, Reuters, Feb. 23, 1996. Canada issued its Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution on March 9, 1993. See infra Part III(C). The United States issued their gender guidelines on May 25, 1995. See infra Part III(D).
3 See Nancy Kelly, Gender-Related Persecution: Assessing the Asylum Claims of Women, 26 Cornell Int'l L.J. 625, 625 n.1 (1993). ("Because the United Nations High Commissioner for Refugees (UNHCR) ... does not disaggregate refugee figures by gender, the precise number of women refugees worldwide is not known. However, authoritative sources estimate that well over half of all refugees are female.")
4 See infra Part II.
5 Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 Hum. Rts. Q. 486, 486 (1990).
6 Kelly, supra note 3, at 626.
7 Id. at 627.
8 Those grounds are race, religion, nationality, membership of a particular social group, and political opinion. See Convention Relating to the Status of Refugees, July 28, 1951, art. I(A)(2), 189 U.N.T.S. 150 [[hereinafter "1951 Convention" ]; Protocol Relating to the Status of Refugees, Jan. 31, 1967, art. 1, 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter "1967 Protocol" ].
9 See Kelly, supra note 3, at 627.
10 Pamela Goldberg, Where in the World is There Safety for Me?: Women Fleeing Gender-Based Persecution, in Women's Rights, Human Rights: International Feminist Perspectives 345, 346 (Julie Peters & Andrea Wolper, eds., 1995) [hereinafter Peters & Wolper).
11 "[A]n individual who fears persecution because of a personal dispute with a foreign government official is not entitled to 'refugee' status...." Sanchez-Trujillo v. Immigration & Naturalization Serv., 801 F.2d 1571, 1576 n.7 (9th Cir. 1986) (emphasis added).
12 See Kelson, supra note 1, at 274-75.
13 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status P 51 (1979).
14 Id. P 52.
15 There has been a dispute for quite some time as to whether the proper term for this procedure should be "female circumcision" or "female genital mutilation." I have defended the use of the term "female circumcision" many times and I will continue to do so. See, e.g., Kelson, supra note 1, at 257-58 n.2. Many feminists have insisted on using the term "female genital mutilation" because it more closely aligns with the procedure and does not identify with male circumcision. See e.g., Layli Miller Bashir, Female Genital Mutilation in the United States: An Examination of Criminal and Asylum Law, 4 Am. U. J. Gender & L. 415, 415 n.* (1996). I believe the time has come for the international human rights community and feminists groups to come together and agree on a term to describe this procedure that can be acceptable to both sides.
16 See Alison T. Slack, Female Circumcision: A Critical Approach, 10 Hum. Rts. Q. 437, 443 (1988).
17 For a more detailed description of the procedures, including ceremonies that can accompany the practice, see Robyn Cerny Smith, Female Circumcision: Bringing Women's Perspective Into the International Debate, 65 S. Cal. L. Rev. 2449, 2460-66 (1992).
18 See Ritual Performed on 100 Million, Clev. Plain Dealer, May 9, 1995, at 8E.
19 See Rebecca Freligh, Movie Seeks End To Female Circumcision, Clev. Plain Dealer, July 4, 1995, at 4E.
20 Jacqueline R. Castel, Rape, Sexual Assault and the Meaning of Persecution, 4 Int'l J. Refugee L. 39, 40 (1992). Ms. Castel explains that she made this narrow definition because "many judges may have difficulty recognizing [rape] as persecution." Id. She further notes: "[J]udges are likely to have less difficulty concluding that more blatant forms of sexual violence, such as the use of electrical currents on the sexual organs, the insertion of hot metal objects in the vagina, and other sexually directed activities which can leave lasting physical damage, constitute persecution." Id.
21 Kristine M. Fox, Note, Gender Persecution: Canadian Guidelines Offer a Model for Refugee Determination in the United States, 11 Ariz. J. Int'l & Comp. L. 117, 126 (1994). See also Campos-Guardado v. Immigration & Naturalization Serv., 809 F.2d 285, 288 (5th Cir. 1987), cert. denied, 484 U.S. 826 (1987) ("[T]hese threats of reprisal [against Ms. Campos] were personally motivated ... and there was 'no indication [that Ms. Campos' cousin- assailant] maintained an interest in her because of her political opinion or any other grounds...."') (emphasis added) (quoting from findings of the Board of Immigration Appeals).
22 Castel, supra note 20, at 40.
23 See, e.g., Gomez v. Immigration and Naturalization Serv., 947 F.2d 660, 663 (2d Cir. 1991). Carmen Gomez, a native of El Salvador, was beaten and raped on five separate occasions by guerillas in El Salvador during her youth. She came to the United States illegally and, after experiencing financial difficulties, began selling drugs. She was convicted on several counts of possession of a controlled substance and was thus not eligible for protective status under U.S. law. The court ruled that her argument "failed to produce evidence that women who have previously been abused by the guerillas possess common characteristics ... such that would-be persecutors could identify them as members of the purported group." Id. at 664.
24 See Akram Mirhosseini, After the Revolution: Violations of Women's Human Rights in Iran, in Peters and Wolper, supra note 10, at 72.
25 See id.
26 See id.
27 Id. Khomeni even went so far as to assert "that a girl should have her first menstrual period in her husband's house, not her father's." Id.
28 See id. at 73.
29 See id.
30 See id.
31 Id. The only exception to this is if there is a statement to the contrary in the marriage contract. See id.
32 Id. Even in this situation, a woman can only have custody of daughters under age seven and sons under two years of age. See id.
33 Id. According to Ayatollah Mutahari: "The specific task of women in this society is to marry and bear children. They will be discouraged from entering legislative, judicial, or whatever careers may require decision making, as women lack the intellectual ability and discerning judgment required for these careers." Id.
34 See id.
35 See id. at 74.
36 Id. at 74.
37 See id. at 75. Under the Islamic penal code, a woman can be subject to up to 74 lashes if she is not dressed properly. See id. Women could be fined for wearing lipstick or any other cosmetics or even having an open button. See id.
38 For example, one commentator notes that in the Middle East,
Laws commonly provide that the wife must obey her husband, that wives are not allowed to work outside the home without their husbands' permission, that men may take up to four wives, that Muslim women may not marry outside the faith, and that women are entitled to only one-half the inheritance share that men inherit in the same capacity. Depending on the country involved, one may find that women are compelled to wear concealing garments in public, that they are excluded from studying certain subjects, that they are deprived of the right to vote, that they are barred from the legal profession and the judiciary, that their testimony in court is excluded or valued at one-half the weight of a man's, that they are not allowed to travel without the permission of a male relative or unless accompanied by a male relative, or that they are not allowed to drive cars.
Ann Elizabeth Mayer, Cultural Particularism as a Bar to Women's Rights: Reflections on the Middle Eastern Experience, in Peters & Wolper, supra note 10, at 176, 177.
39 See generally People v. O.J. Simpson, No. BA097211, (Cal. Super. Ct. 1995). O.J. Simpson was accused of the double murder of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman. The trial lasted for about 10 months and attracted worldwide attention. The jury deliberated for about four and a half hours before acquitting Mr. Simpson on both counts.
40 See Julie Mertus, State Discriminatory Family Law and Customary Abuses, in Peters & Wolper, supra note 10, at 135, 141.
41 See id. at 140.
42 See id.
43 See id. at 140-41.
44 See id. at 140.
45 I chose these countries because the opinions for these cases were relatively easy to obtain.
46 See Campos-Guardado v. Immigration & Naturalization Serv., 809 F.2d 285, 287 (5th Cir. 1987), cert. denied, 484 U.S. 826 (1987). The court pointed out that she was not eligible for legalization under the Immigration Reform and Control Act of 1986 because Ms. Campos did not "establish that [s]he entered the United States before January 1, 1982." Id. at 287 n.1 (quoting Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, _ 210, 100 Stat. 3359 (Nov. 5, 1986)).
47 See id. at 287. Ms. Campos' uncle was the chairman of a local agricultural cooperative. See id.
48 See id.
49 See id.
50 See id.
51 See id.
52 See id.
53 See id.
54 See id.
55 See id.
56 See id.
57 See id.
58 See id.
59 See id.
60 Id. at 288.
61 Id.
62 Id. (emphasis in original). It was noted that Ms. Campos did not establish that she personally held political opinions that would subject her to persecution. See id. at 288 n.3. In fact, even though she was attacked because of her uncle's political views, the BIA concluded that her attackers "could not have expected her to be present at her uncle's home that day." Id. at 288.
63 Id.
64 Id.
65 Id.
66 Id. at 288-89.
67 See Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233, 1235 (3rd Cir. 1993). Ms. Fatin was 18 years old at the time of her entry and attended high school in Philadelphia until May 1979, enrolling in Spring Garden College in Philadelphia the following September. See id.
68 See U.S. Department of Justice, Immigration and Naturalization Service, Request for Asylum in United States, Form I-589, (Rev. 08-91) [[hereinafter INS Form]. The form used for Ms. Fatin was revised on August 8, 1991; the question numbers in the opinion do not match the numbers on the current form.
69 See id. This is now question 19 on the 1991 revision.
70 Fatin, 12 F.3d at 1235.
71 See INS Form, supra note 68. This is now question 20 on the 1991 revision.
72 Fatin, 12 F.3d at 1235.
73 See INS Form, supra note 68. This is now question 21, which is worded: "Have you or any member of your family, ever been mistreated/threatened by the authorities of your home country or by a group(s) controlled by the government, or by a group(s) which the government of your home country is unable or unwilling to control?" Id.
74 Fatin, 12 F.3d at 1235 (alteration in original).
75 See INS Form, supra note 68. This is now question 22 on the 1991 revision.
76 Fatin, 12 F.3d at 1235.
77 See id.
78 See id. at 1236 (citing 8 U.S.C. _1253(a)(3)(F) (1994) allowing discretionary relief from deportation proceedings).
79 Fatin, 12 F.3d at 1236.
80 See id.
81 Id. at 1236-37 (alterations in original).
82 See id. at 1237.
83 Id. at 1237 (citation omitted).
84 Id. (citation omitted). Ms. Fatin told the BIA that she had a deep belief in feminism, telling the court that she believed in "equal rights for women, and the right to free choice of any expression and development of abilities, in the fields of education, work, home and family, and all other arenas of development." Id. (citation omitted).
85 Id. (citations omitted).
86 Id. (alterations in original) (citation omitted).
87 Id. (alteration in original) (citation omitted).
88 Id. (citation omitted).
89 Id. (citation omitted).
90 Id. at 1238. In fact, the court went on to note that:
When the Conference of Plenipotentiaries was considering the Convention [ [Relating to the Status of Refugees] in 1951, the phrase "membership of a particular social group" was added to this definition as an "afterthought." The Swedish representative proposed this language, explaining only that it was needed because "experience had shown that certain refugees had been persecuted because they belonged to particular social groups," and the proposal was adopted.
Id. at 1239 (citation omitted).
91 See id. at 1240 ("whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences" (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985))).
92 See id.
93 See id. at 1241. The court's test for granting asylum was that the seeker must
(1)identify a group that constitutes a "particular social group" within the interpretation ...
(2)establish that he or she is a member of that group, and
(3)show that he or she would be persecuted or has a well-founded fear of persecution based on that membership.
Id. at 1240.
94 See id. at 1241.
95 See id. at 1242.
96 See id. at 1243. In a variation of its test, the court said that an alien must
(1)specify the political opinion on which he or she relies,
(2)show that he or she holds that opinion, and
(3)show that he or she would be persecuted or has a well-founded fear of persecution based on that opinion.
Id. at 1242.
97 See Matter of Aminata Diop, decision in: Dossier 90-12- 01134/AF1/SECAF3, Decision de Rejet, Office Francais de Protection des Refugies et Apartrides [File No. 90-12-01134/AF1/SECAF3, Notice of Denial, French Office for the Protection of Refugees and Stateless Persons] (Dec. 18, 1990) and Matter of Aminata Diop, decision in: Recours no 164078, Republique Francais ... La Commission des Recours des Refugies, 2eme Section [Appeal No. 164078, French Republic ... The Commission for Refugee Appeals, 2d Section] (Sept. 18, 1991) at 3 [hereinafter Matter of Diop] As the original document is in French, I will be citing from an official English translation. I wish to thank Tilman P. Hasche of Parker, Bush & Lane, P.C. in Portland, Oregon for providing me with both the English and French versions of this document.
98 See id. at 3.
99 Id.
100 See id. The opinion noted that she was "[a]bandoned by her family in
Bamako ... and rejected by society for thus having removed herself from the exercise of parental authority." Id. Her mother was also known "for encouraging [Ms. Diop] to resist the practice [of excision]"
Id.
101 Id.
102 Id. at 4.
103 Id. Article I, paragraph A(2) of the Convention states, in part:
As a result of events occurring before 1 January 1951 and owing to 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 nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
1951 Convention, supra note 8, Chap. I, art. 1, para. A(2).
104 See Matter of Diop, supra note 97, at 4.
105 See id. at 5. "[Ms. Diop's] allegations lack credibility insofar as they are entirely unsupported except for a document produced and presented as a letter from her mother dated 18 January 19909 [sic], whose very text negates its probative value." Id.
106 Id.
107 See generally Kelson, supra note 1 (discussing the need for political asylum for potential victims of female circumcision).
108 See Cheung v. Canada (Minister of Employment and Immigration) [[1993] 102 D.L.R. (4th) 214, 216 (Fed. Ct. App.) (Can.).
109 See id. ThePeople's Republic of China imposed the one-child policy in 1979. On February 15, 1995, it was estimated that China's population was over 1.2 billion people. See Jane Macartney, China Defends Tough One-child Population Controls, Reuters, Aug. 23, 1995, at 8. According to Communist Party President Jiang Zemin, the policy must be enforced because "food shortages, employment, education, exploitation of resources, pollution and imbalance of ecology that [comes] with economic development [are] directly linked to a huge population." Agnes Cheung, One-child Rule Must Be Heeded, Says Jiang, S. China Morning Post, Mar. 20, 1995, at 7. The penalty for violation of the policy can be very strict:
Disciplinary measures against those who violate the policy include stiff fines, withholding of social services, demotion, and other administrative punishments, including, in some instances, loss of employment. Unpaid fines have sometimes resulted in confiscation or destruction of personal property. Because penalties for excess births may be levied against local officials and the mothers' work units, many persons are affected, providing multiple sources of pressure.
U.S. Dep't of State, Country Reports on Human Rights Practices 7 (Joint Comm. Print 1993).
110 See Cheung, 102 D.L.R. (4th) at 216.
111 See id.
112 See id.
113 See id.
114 See id.
115 See id.
116 See id. at 217.
117 See id.
118 See id.
119 See id.
120 See id.
121 See id.
122 See id. The reasoning for the visits was not stated in the opinion. It is "unclear ... whether these visits were in connection to Ms. Cheung or to her brother who participated in demonstrations in Beijing." Id.
123 See id.
124 See id.
125 Id. at 217-18.
126 Id. at 218. The court further stated:
This issue can be broken into two sub-issues, the first being whether women in China who have more than one child and are faced with forced sterilization constitute a social group within the meaning of the definition of a Convention refugee. The second sub-issue addresses the question of whether forced or coerced sterilization constitutes persecution.
Id.
127 Id. at 220.
128 See Mayers v. Canada (Minister of Employment and Immigration) [[1992] 97 D.L.R. (4th) 729 (Fed. Ct.) (Can.).
129 See Cheung, 102 D.L.R. (4th) at 219. Mayers gives four criteria for being a particular social group under the Convention:
(1) a natural or non-natural group of persons with (2) similar shared background, habits, social status, political outlook, education, values, aspirations, history, economic activity or interests, often interests contrary to those of the prevailing government, and (3) sharing basic, innate, unalterable characteristics, consciousness, and solidarity, or (4) sharing a temporary but voluntary status, with the purpose of their association being so fundamental to their human dignity that they should not be required to alter it.
Id. (citing Mayers, 97 D.L.R.(4th) at 737).
130 See id. at 221.
131 See id. Article 3 of the Declaration states, "Everyone has the right to life, liberty and security of person." Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A(III), 3 U.N. GAOR (Resolutions, part 1), at 71, U.N. Doc. A/810 (1948). Article 5 of the Declaration states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Id. at art. 5.
132 Cheung, 102 D.L.R.(4th) at 221.
133 Id. at 222.
134 See Immigration Act of 1976-77, R.S.C., ch. I-2, __ 1-123 (1985) (Can.).
135 See id. _ 57(1).
136 The Act defines a "Convention refugee" as
[A] person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a)is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to available himself of the protection of that country, or
(b)not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country[.]
Id. _ 2(1).
137 See id. __ 68-76.
138 Id. _ 83.
139 See infra notes 108-33 and accompanying text.
140 This was the case with a Saudi woman known as Nada. Although she was granted permanent resident status by the Minister, she was never declared a Convention refugee. See infra notes 184-86 and accompanying text.
141 Basic Law for the Federal Republic of Germany of May 23, 1949, art. 16(a)1, Dec. 1, 1993, in David P. Currie, The Constitution of the Federal Republic of Germany 343, 349 (1994).
142 Id. art. 16a(2).
143 See Asylum Procedure Act, July 1, 1993 (Ger.) (Inter Nationes 1994).
144 See id. ch. 1, _ 5(1).
145 See id. ch. 1, _ 5.
146 See id. ch. 2, __ 24-5.
147 Id. sub-ch. 3, _ 25 (1).
148 See id. ch. 2, _ 31.
149 See id. ch. 7, _ 74. The action must be filed within two weeks after the decision has been served. See id. ch. 7, _ 74(1). The applicants are eligible for appeal contingent upon the satisfaction of other general requirements of appellate procedure. See id. ch. 7, _ 78.
150 See id. ch. 7, _ 78.
151 See id. ch. 7, _ 78(5).
152 Immigration Act, 1971, ch. 77 (Eng.).
153 Asylum and Immigration Appeals Act, 1993, ch. 23 (Eng.).
154 "The power ... to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave ... shall be exercised by the Secretary of State[.]" Immigration Act, 1971, ch. 77, _ 4(1) (Eng.).
155 See id.
156 Asylum and Immigration Appeals Act, 1993, ch. 23, _ 8(1) (Eng.).
157 See Immigration Act, 1971, ch. 77, _ 20 (Eng.).
158 Pub. L. No. 414, 66 Stat. 163, as amended (1952). The law has been codified in various sections of 8 U.S.C.
159 Pub. L. No. 96-212, 94 Stat. 102, as amended (1980). This has also been codified in various sections of 8 U.S.C.
160 See 8 U.S.C. _ 1103(a) (1994).
161 See id.
162 8 C.F.R. _ 208.3 (1997). An applicant must also submit a biographical information form, fingerprints of himself and any member of his family 14 years of age or older and two passport photographs. See id.
163 See id. _ 208.9.
164 See id. _ 208.14.
165 See id. _ 242.16.
166 See id. _ 242.21. The application for appeal must be made within 30 days of the rendering of the decision. See id. _ 242.21(a).
167 Universal Declaration of Human Rights, supra note 131, art. 3.
168 Id. art. 1.
169 Article 2 of the Declaration states in part, "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status." Id. art. 2. Article 7 states, "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of of this Declaration and against any incitement to such discrimination." Id. art. 7.
170 Id. art. 3.
171 Id. art. 4.
172 Id. art. 5.
173 Id. art. 18.
174 Declaration on the Elimination ofViolence Against Women, Feb. 23, 1994, 33 I.L.M. 1049 (1994).
175 Elissavet Stamatopoulou, Women's Rights and the United Nations, in Peters & Wolper, supra note 10, at 36, 39.
176 Declaration on the Elimination of Violence Against Women, supra note 174, art. 1.
177 Id. art. 2.
178 Declaration on the Elimination of Discrimination Against Women, Nov. 7, 1967, art. 1, reprinted in International Human Rights Instruments of the United Nations 1948-1982, at 103 (UNIFO Publishers, Ltd. 1983).
179 See Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, G.A. Res. 34/180, 34 U.N. GAOR, Supp. No. 46, at 193, U.N. Doc. A/34/36 (1980).
180 See id. Part V, arts. 17-22.
181 Id. art. 5(a).
182 Id.
183 Office of the United Nations High Commissioner for Refugees, Guidelines on the Protection of Refugee Women, 7 (1991).
184 See Julie Wheelwright, One Giant Step for Women in Search of Asylum, Guardian (U.K.), March 22, 1993, at 11.
185 See id. The Immigration and Refugee Board told Nada that she should "'comply with the laws of general application she criticises' and 'show consideration for the feelings of her father' who opposed his daughter's liberal views." Id.
186 See id. The immigration minister's order only granted Nada permanent residency; he did not overrule the Immigration and Refugee Board's denial of refugee status for Nada. See id.
187 See Miriam Davidson, Second-Class Refugees: Persecuted Women are Denied Asylum, The Progressive, June 1994, at 23.
188 Canadian Immigration and Refugee Board, Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution 2.
189 Alan Thompson, Canada First in Recognizing Abused Women as Refugees, Toronto Star, March 10, 1993, at A2.
190 See Canada Accepts Refugees on Basis of Sex, Reuters, Mar. 9, 1995.
191 See id. According to Nancy Worsfold of the Canadian Council of Refugees, the cost of filing an application for refugee status in Canada is $696. See id.
192 See, e.g., Julie Vondra, Potential Immigrants Over 18 Should Be Evaluated for Their Economic Benefits (letter to the editor), The Ottawa Citizen, July 29, 1994, at A10.
193 Department of Justice, Office of International Affairs, Considerations For Asylum Officers Adjudicating Asylum Claims From Women 1.
194 Id. at 4.
195 Id. at 4-5.
196 For a detailed analysis on how the Canadian Guidelines can be used under American asylum law, see Kelson, supra note 1, at 282-297. See also Fox, supra note 21, at 133-34 (suggesting that the United States follow Canada's lead in adopting similar guidelines to protect women refugee claimants).
197
1. The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined.
2. For the purpose of the present Protocol, the term "refugee" shall ... mean any person within the definition of article 1 of the Convention as if the words "As a result of events occurring before 1 January 1951 and ..." and the words "... as a result of such events," in article 1A(2) were omitted.
1967 Protocol, supra note 8, art. I.
198 See, e.g., Asylum and Immigration Appeals Act, 1993, ch. 23, _ 2 (Eng.) ("Nothing in the immigration rules ... shall lay down any practice which would be contrary to the Convention.").
199 Canadian Immigration and Refugee Board, News Release, March 9, 1993 (on file with author).
End of Document
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