Stop Violence Against Women


Gender-Based Asylum


Definitions of Refugees and Gender-Based Violence

- The 1951 Geneva Convention relating to the Status of Refugees (1951 Convention) and the U.S. Immigration and Nationality Act define a refugee as a person "outside of his or her country of nationality who is unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."


- While "gender" is not specified as category, women who suffer gender-based violence may fit under any of the five categories and most often fit under the social group ground. The UN's Guidelines on the Protection of Refugee Women promotes "acceptance of the principle that women fearing persecution or severe discrimination on the basis of their gender should be considered a member of a social group for the purposes of determining refugee status." Women who suffer gender-based violence also often fit under the political opinion and religion grounds.

Examples of gender-based violence:

  1. Women often suffer harms which are either unique to their gender, such as female genital mutilation or forcible abortion, or which are more commonly inflicted upon women than men, such as rape or domestic violence.


  2. Women may also suffer harms solely or exclusively because they are women, i.e. as a result of their gender, such as the policies of the Taliban in Afghanistan.


  3. Women often suffer harm at the hands of private individuals, such as family members who threaten them with honor killings or abusive spouses who batter them.
Discrimination and Violence

*It is important to note that international human rights instruments recognize the above-mentioned forms of gender-based violence as human rights violations.

- UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)
states that "'discrimination against women' shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."
- UN Declaration on the Elimination of Violence Against Women states that "'violence against women' means 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 in private life."

Seeking Asylum in the United States

International law prohibits the forcible return of refugees to countries where their lives or freedom are in danger. Refugees have the right to seek asylum in other countries. When women suffer gender-based violations that amount to persecution, and their governments are unwilling or unable to control the perpetrators, they may seek asylum in the U.S.

In the U.S., there are Immigration and Naturalization Service (INS) guidelines and precedent-setting cases that recognize gender-based persecution can be the basis for asylum.

- INS Gender Guidelines (1995) - Formal guidelines for asylum officers in deciding gender-based asylum cases that state that gender-based persecutions such as rape, sexual violence, violation of fundamental beliefs and abuses considered to be private acts can be a basis for asylum. While helpful, these guidelines are only suggestions and do not have the force of the law.


- Matter of Kasinga (1996) - In this precedent-setting gender-based asylum case, the court ruled that "female genital mutilation, which results in permanent disfiguration and poses a risk of serious, potentially life-threatening complications, can be the basis for a claim of persecution. Young women who are members of the Tchamba-Kunsuntu Tribe of northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe, and who oppose the practice, are recognized as members of a "particular social group" within the definition of the term 'refugee'." Although asylum was granted in this case and opened the door to other potential claims on the basis on female genital mutilation (FGM), it did not establish FGM as a specific ground for asylum.


- Matter of S A (2000) - In this precedent-setting gender-based asylum case, the court ruled that "a woman with liberal Muslim beliefs established by credible evidence that she suffered past persecution and has a well-founded fear of future persecution at the hands of her father on account of her religious beliefs, which differ from her father's orthodox Muslim views concerning the proper role of women in Moroccan society." Because of the limited nature of this decision and the fact that asylum decisions are left to the discretion of district immigration judges, like other asylum cases this one further opened the door to gender-based claims, but did not establish a broad, enforceable category for gender.


- Proposed INS Regulations (2000) - Broad analytical framework for the consideration of asylum claims based on membership in a particular social group that recognizes that victims of domestic violence may, under certain circumstances, qualify for asylum. These regulations were drafted late in the Clinton Administration and have yet to be published in final form.

Even though the INS and international instruments recognize gender-based violence as human rights violations, many asylum adjudicators in the United States apply a restrictive interpretation of the international definition of a refugee entitled to protection. Women with asylum cases based on gender-based violence are often denied protection in the U.S.