Persecution Taxonomy

• Publication year: 2023

Persecution Taxonomy

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Adding Sex and Gender as Protected Grounds for Asylum

Elaine Wood ^*

Abstract: A puzzling barrier to asylum grants in the United States is the systemic gender bias inherent in structures of legal justice. Part of the issue stems from the conflation between gender and sex in U.S. asylum law. This article considers how government discretionary determinations reveal biased social constructions of gender, rendering women as a disfavored group. It discusses sex and gender as grounds for protection of women who are persecuted because they are women and highlights the injustice that these distinctions are absent from the 1951 Geneva Refugee Convention and the INA enacted by Congress, and are further ignored by U.S. case law. The article proceeds with a close reading of asylum cases that represent different scenarios of bias. By addressing these cases together, we may see how their outcomes present a particularly challenging future for women applicants in U.S. asylum law if gender and sex continue to be ignored as distinct categories for protection. Ultimately, this article intends to prompt further discussion on the legal impact of broadening grounds for asylum to that of gender and sex.

Introduction

The United Nations High Commissioner for Refugees (UNHCR) estimates that "117.2 million people will be forcibly displaced or rendered stateless in 2023." ¹ Despite the massive number of people requiring resettlement, the United States grants asylum to only a select few. During fiscal year 2022, the U.S. granted asylum to a total of 23,686 individuals. ² That is, the U.S. grants refuge to just over 2% of people seeking to avoid persecution in their country of origin. The human right to be free from forced migration and statelessness is still observed primarily in the breach. Global mobility remains a choice available primarily to those least in need of it: individuals with favored passports and privileged backgrounds. Questions remain: By whose discretion are people granted asylum in the United States? Does U.S. asylum law effectively protect human rights, or does it favor certain categories of applicants for asylum?

A puzzling barrier to asylum grants in the United States is the systemic gender bias inherent in structures of legal justice. Part of the issue stems from the conflation between gender and sex in U.S. asylum law. Feminist scholarship continues to provide valuable insight into the historic, and often subtextual, gender biases in U.S. immigration law. ³ Scholars argue that asylum

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law remains "centered around the male applicant, the male situation, and the male experience." ⁴ The following analysis of case law involving past persecution issues in U.S. asylum jurisprudence highlights the subtext of violation against the bodily integrity of women. Collectively, case outcomes reflect a taxonomy of persecution that warrants a critical examination of Immigration and Nationality Act (INA) § 101(a)(42)(A) to include gender and sex as protected grounds for asylum claims in the United States.

This article considers how government discretionary determinations reveal biased social constructions of gender, rendering women as a disfavored group. It discusses sex and gender as grounds for protection of women who are persecuted because they are women and highlights the injustice that these distinctions are absent from the 1951 Geneva Refugee Convention and the INA enacted by Congress, and are further ignored by U.S. case law. It intends to prompt further discussion on the legal impact of broadening grounds for asylum to that of gender and sex.

"Gender-related persecution" in immigration law refers to acts against women that cause physical and psychological harm to their bodily integrity—including female genital mutilation (FGM), forced sterilization, punishment for breaching social norms (dress code violations), and intimate partner violence (IPV)—that are inflicted at least in part because of a person's gender. While gender-related persecution certainly includes acts against women that cause physical or psychological harm, it is also because they are women or a class of women. FGM and forced sterilization involve the physical integrity of a body, and dress code violations and IPV relate to behavior. The distinction between sexed bodies and gender identity is blurred in case law, and the fourth section of this article highlights instances of this conflation and its consequences. The article proceeds with a close reading of asylum cases that represent different scenarios of gender bias. These cases are categorized by issues involving mutilation (Matter of Kasinga; Mohammed v. Gonzales), sterilization (Matter of Y-T-L-), dress code (Fatin v. I.N.S.; Matter of S-A-) and intimate partner violence (Matter of A-R-C-G-; Matter of A-B-). ⁵ Ultimately, by addressing these cases together, we may see how their outcomes present a particularly challenging future for women applicants in U.S. asylum law if gender and sex continue to be ignored as distinct categories for protection.

Specifically, this cataloguing reveals how gender bias emerges in U.S. asylum jurisprudential assessments of past persecution. This article focuses on power and privilege to highlight how the language used in case law perpetuates a climate of sexism in the legal processes around immigration. "Examining the sexist perceptions of, and practices against, women in asylum and immigration law are an important step toward understanding why the exclusion of gender-related persecution is one of the most discernible gaps in the application of the Refugee Act." ⁶ These cases also show how gender bias emerges to the detriment of women at the level of noninclusive language. For instance, Article 1(A)2 of the Refugee Convention uses male pronouns to define a refugee. Perhaps

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this was adequate in 1951; however, today it warrants revision. ⁷ Moreover, textual analysis of the language comprising case law details exactly what gender bias means in the context of asylum law. Far more important than the dated pronoun usage is that the Convention itself does not specifically provide for persecution on account of sex or gender.

The feminist methodological lens of this article seeks to make visible, understand, and challenge the often unseen androcentric biases in the way that the "concept of knowledge has traditionally been constructed in politics and international relations." ⁸ Perhaps the authorial rule of law itself does not amount to persecution because it is not intended by male actors—law, patriarchy, judges—but it remains the fabric of a system that is designed by men, tends to privilege men, and to serve male interests. To be fair, the Convention, it should be noted, was championed by, among others, Eleanor Roosevelt, in reaction to the refugee crisis following World War II. Nevertheless, biases and inequalities emerge from a closer look at these cases and represent different vehicles for inequality in the immigration context.

This article proceeds as follows: the next section, "Asylum Regulation: International and National Levels," highlights how the 1951 Geneva Refugee Convention defines the term "refugee" and outlines how the U.S. Refugee Act of 1980 implements the term in its codification of refugee law. The section "Gender Bias in U.S. Asylum Law: Framing the Issue" clarifies how U.S. immigration courts define "persecution" and "social group" in their decisions. Additionally, this section distinguishes gender from sex to clarify how "gender-based persecution" conflates sex assignment at birth with gender identity. Language impacts the way people conceptualize and respond to an issue. This distinction between sex and gender becomes a tool to explain the inner workings of implicit sexism in U.S. immigration law: conflating terms, causing harm, and ultimately preventing applicants from accessing asylum. The fourth section, "Taxonomy of Persecution: Violations of Bodily Integrity," provides a textual analysis of Matter of Kasinga; Mohammed v. Gonzales; Matter of Y-T-L-; Fatin v. I.N.S.; Matter of S-A-; Matter of A-R-C-G-; and Matter of A-B- to display their distinct components of "gender-based persecution" claims. Categories include mutilation, sterilization, dress code violations, and intimate partner violence, respectively. The conclusion offers a realistic assessment of our current situation in the wake of the 2021 reversal by the U.S. attorney general of the Matter of A-B- decision and an articulation of potential outcomes for future asylum applicants.

Asylum Regulation: International and National Levels

This section highlights how the 1951 Geneva Refugee Convention defines the term "refugee" and outlines how the U.S. Refugee Act of 1980 implements the term in its codification of refugee law.

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The Geneva Convention

Under the Geneva Convention, an asylum seeker is someone who has petitioned a particular state to grant them refugee status under the terms of the 1951 Refugee Convention/Geneva Convention. ⁹ The definition of a refugee under international law is someone who has been recognized either by a national government or by the United Nations High Commissioner for Refugees as deserving international protection under these terms. ¹⁰

Article 1(A)2 of the Geneva Convention defines a refugee as "a person who, owing to a 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 or being outside the country of his former habitual residence as a result of such events, is unwilling, or owing to such fear is unwilling to return to it." ¹¹ (Italics added to emphasize gender noninclusive terms.) The non-gender-neutral pronoun in the definition displays the...