Calling all women, would you like to join our social group?
By Jordan Brownlow
In honor of yesterday’s International Women’s Day, I am devoting this post to women and asylum law. Quick review: In order to be approved for asylum, an applicant must demonstrate that he or she is fleeing violence and or persecution in their home country due to race, caste, nationality, religion, political opinion, or membership in a certain social group. For women fleeing gender-specific and gender-based violence, their application for asylum falls under the “membership to a certain social group” clause, and they must prove that they are being persecuted on account of their gender. In order for a woman to be granted asylum under these conditions, a judge must therefore see gender as a social group, meaning that there is often little consistency between which cases are granted asylum and the matter simply comes down to which judge the woman has been assigned.
Whether or not being a woman counts as being a member of a certain social group has been widely debated. Often, it is argued that gender is too large or too broad a category to be specifically protected. However, the 1951 Refugee Convention laid the groundwork for which characteristics were necessary to classify a group as qualifying for protection - with the main characteristic being immutability. Certainly gender - biological and social constructions included - is as immutable, if not more so, than race, caste, nationality, religion, or political opinion. The two other characteristics decided on at the Convention were particularity and circularity, meaning that the group must be distinguishable from other groups, and exist without the persecution. Are women and men distinguishable? Yes. Does woman exist without persecution? Well, that’s a longer answer.
It is important to note that just because woman is considered a valid social group, that does not open up the doors to let in every woman not currently living in the US to apply for asylum. This argument is ridiculous. A woman would still have to prove that her persecution was on account of her being a woman, the level of harm was severe enough to be considered persecution, the state she is fleeing is unable or unwilling to protect her, and she does not have a serious criminal record. Instead, officially recognizing gender as a social group would be a validation of the unique and shared marginalization experienced by women on account of their being women, “including their inability to vindicate their human right to be free from violence.”
This recognition of women as a social group is important because it validates, or invalidates, the asylum claims of women who come to the US fleeing gender-specific violence (rape, sexual violence, forced abortion, female genital mutilation, etc…) and gender-based violence (mostly domestic violence). Many of the women coming to the US from Latin America are fleeing domestic violence, and without uniform understanding of how women as a social group is to be interpreted, these women are at the discretion of how their individual immigration judge is feeling on that day. The US and the international community must step up and add women to the list, removing the confusion.
Yale Law Journal