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The Developing Jurisprudence of Gender-Based Asylum Claims

Matter of A and Z (IJ Dec. 20, 1994) (Arlington) (Nejelski, IJ): Granted asylum to a Jordanian woman who had been physically and verbally abused throughout a 30 year marriage by her husband who was a wealthy and successful businessperson. Husband also sought to control her activities and isolate her. Respondent testified she believed in Western values and was not content to be a slave to her husband. There was also a failure of state protection because the respondent could not go to the police to seek protection, nor could she divorce her husband. Judge found applicant to be a member of a particular social group, consisting of women who espouse western values and are unwilling to live their lives at the mercy of their husbands, society, or government.

Matter of M and K (IJ Aug. 9, 1995) (Arlington) (Nejelski, IJ): Granted asylum to a woman from Sierra Leone who suffered domestic abuse and forced female genital mutilation. In Sierra Leone, those who resisted mutilation was considered an outcast; women are expected to be subservient to men. Respondent was verbally and physically abused because she was mouthy and attempted to assert her individual autonomy. The government was unable or unwilling to protect women from mutilation or from spousal abuse. Spousal abuse was persecution; social group was women who have been punished with physical spousal abuse for attempting to assert their individual autonomy.

Matter of Sharmin (IJ Sept. 27, 1996) (New York) (Bukszpan, IJ): Granted asylum to Bangladeshi woman who was active in the women’s section of the Jayto Party despite her husband’s orders not to leave the house or talk to other people. Woman testified her husband beat her and a letter from a clinic corroborated physical injuries and hospitalization. Judge found persecution based on account of both social group membership and political opinion and that the government condoned a husband’s oppression of his wife, and that Muslim religious laws consigned women to an inferior status from which they could not escape.

Matter of A-P-(IJ, Sept. 20, 1996) (San Francisco) (Schooley Yam, IJ): Granted asylum to a Guatemalan women who was severely beaten by her husband (frequent infliction of severe injury, including dislocated jaw, attempt to cut off hands with machete, attempting to abort when she was pregnant by kicking her in the spine. Applicant sought help from police, but they said they “would not get involved." Judge found persecution on social group membership and political opinion. Membership was defined as “Guatemalan woman who become involved intimately with Guatemalan men who believe in male domination and are targeted by their male companions…when these men attempt to control them through violence. Applicant’s resistance to her husband’s abuse was a challenge to his opinion that women are to be subordinate to men, which constituted an expression of political opinion against male domination.

Matter of S- A-: Granted asylum to a Moroccan woman severely abused by her father because her actions did not conform to his religious beliefs restricting her conduct in dress and behavior. The court found that the woman was persecuted on account of religion. Membership in a particular social group is based on either an immutable characteristic or one that is so fundamental to the applicant’s identity that he should not be required to change it. While this encompasses many domestic violence asylum claims, Matter of S- A- illustrates that membership in a particular social group is not the only ground for gender claims. For example, women may resist subordination and violence because of views about their own autonomy may constitute a well-founded fear of harm. The court may find their views of autonomy to engage the political opinion ground.

Matter of R- A-: BIA overturned a grant of asylum to a Guatemalan woman who had shown that her husband kicked her violently when she declined to abort a fetus, despite the applicant’s showing that spousal abuse in Guatemala is common and she was unable to secure state protection. The court held that the husband’s motives for harming her were not gender-specific and, therefore, she was not persecuted on account of a protected ground (gender-defined particular social group). There was no evidence that Guatemala willfully withheld protection from a specific class in failing to provide her with security.

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