The Development of Gender within the Particular Social Group Definition Under the United Nations Refugee Convention and United States Immigration Law: Case Studies of Female Asylum Seekers from Cameroon, Eritrea, Iraq and Somalia
121 Pages Posted: 14 Nov 2010
Date Written: September 1, 2010
This article’s main proposition is that women who seek asylum in the United States based on gender do not have sufficient protection. It first discusses the evolution of gender in asylum law and the growing Northern and Southern dichotomy. This includes a discussion of the specific legal protections of refugees and asylees within the UN Refugee Convention and the relatively recent introduction of gender-based asylum in general. The core of this article is the detailed case discussion of female asylum seekers, particularly from Somalia, but also from Cameroon, Eritrea and Iraq. These female asylum seekers’ claims were augmented by their gender in some aspect and their claims were generally accepted. This article discusses how their legal arguments were raised, the context and the outcome. Within each case discussion, the woman’s rights conditions in the respective country are discussed both at the time her case was filed and contemporaneously.
The cases discussed herein all involve women, many of whom were elderly. Others were children, including a sixteen-year old girl from Somalia who was smuggled into the United States, but had no family waiting for her. Another involved a refugee mother who paid to smuggle her six-year old son into the U.S. from Somalia. One of the longest running cases, and one based purely on gender, concerns a compassionate and devoted woman from Cameroon, who was beaten and threatened by her in-laws after her husband passed away. Her case has been pending since 2001 and her appeal was granted by the Eighth Circuit in 2008. Other major cases discussed include a brilliant woman from Iraq who filed for asylum only months before the U.S. invasion of Iraq and a sensitive and inexorable woman from Eritrea who trekked most of her life as a refugee from Eritrea.
After the case discussion, this article addresses the development of other gender-based asylum cases in the United States. It discusses Northern resistance against refugees in general and the politics of gender-based asylum. As the article concludes, it discusses the cases within the background of the recent findings of a detailed, comprehensive study of asylum adjudication published in 2008 in the Stanford Law Review and the findings of recent Congressional executive oversight reports by the GAO regarding asylum adjudications in 2008. The article concludes that although obtaining gender-based asylum in the United States is possible and the situation is improving in some ways, a problem remains; women do not have sufficient protection. More broadly, the discussion on gender-based asylum and the corresponding human rights conditions in particular countries, discussed in the context of protections afforded in the UN Refugee Convention, illustrate the continued female struggle against oppression globally and within the United States.
Interwoven into this article is my essay on the need for greater acceptance of gender-based asylum and arguments against its opponents. America can be a safe-haven for women; but it must go much further to fulfill its status as a leader in protecting women. Currently, women can obtain protection, but as my own experience and wider analysis confirms, it is insufficient; a woman’s ability to seek protection may depend on where she files for asylum and the particular adjudicator or judge assigned. It could also affect an adjudications credibility determination.
Keywords: Asylum Law, Refugee Law, United Nations Refugee Convention, American Immigration Law, Refugee Studies, Gender based Asylum, Social Group, Gender Equality, Forced Migration, Forced Displacement, Poverty, Global North/South Dichotomy
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