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United States of America: The time limit to file an asylum claim; status of a December 2000 proposed rule for gender-based claims; requirements to file a gender-based claim; number of claims processed to date; earliest gender-based claims

Publisher Canada: Immigration and Refugee Board of Canada
Author Research Directorate, Immigration and Refugee Board, Canada
Publication Date 8 November 2002
Citation / Document Symbol USA40296.E
Reference 2
Cite as Canada: Immigration and Refugee Board of Canada, United States of America: The time limit to file an asylum claim; status of a December 2000 proposed rule for gender-based claims; requirements to file a gender-based claim; number of claims processed to date; earliest gender-based claims , 8 November 2002, USA40296.E, available at: http://www.refworld.org/docid/3f7d4e341a.html [accessed 14 July 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

For information regarding the one-year time limit and the circumstances under which the time limit may be extended to file an asylum claim in the United States, please refer to USA39499.E of 4 October 2002.

According to the Quality Assurance Officer at the Asylum Office in New York City, no information has been received regarding the finalization of the December 2000 proposed rule for gender-based asylum claims, nor are there official guidelines to follow when reviewing these claims (US 30 Oct. 2002 a). Gender-based claims are currently dealt with on a case-by-case basis (ibid.).

Stephen Knight, the Coordinating Attorney for the Center for Gender and Refugee Studies (CGRS) at the University of California's Hastings College of the Law stated in a telephone interview that comments and responses made by the public regarding the proposed rule were due in January 2001, but since that time there had been no further public dialogue (CGRS 30 Oct. 2002).

The Quality Assurance Officer pointed out that victims of spousal abuse whose claims do not fall under one of the five categories required to make an asylum claim in the United States (race, nationality, membership in a social group, religion and political opinion) may not be granted asylum, although this could change in the future (US 30 Oct. 2002 a). The case of Rodi Alvarado (Matter of R-A-) demonstrates the division of opinion over granting asylum to victims of domestic violence and, according to Stephen Knight, the Matter of R-A- "continues to cast a shadow over asylum decisions" (Interpreter Releases 13 May 2002, 692). The history of the case is explained in an Amnesty International Action Appeal issued on 22 January 2002:

An immigration judge granted Ms. Alvarado asylum in 1996. The Immigration and Naturalization Service (INS) appealed. The INS won its appeal in June 1999, when a sharply divided Board of Immigration Appeals (BIA) reversed the grant of asylum to Ms. Alvarado. This decision, Matter of R-A-, set a precedent that had a negative impact on other gender-based cases.

In December 2000, the Department of Justice and INS published draft regulations pertaining to women's asylum claims that criticize the BIA's decision and seek to "remove certain barriers" that it created. In January 2001, Attorney General Janet Reno issued an order vacating the BIA's decision. The Attorney General ordered that the BIA reconsider its decision based on the new INS regulations, after they are published in final form.

One year later, the Department of Justice has yet to publish a final version of those regulations, and Ms. Alvarado's claim for asylum in the United States remains before the BIA.

In his article "Seeking Asylum From Gender Persecution: Progress and Uncertainty," Stephen Knight states that:

The BIA has issued two decisions in gender persecution cases since January 2001. While asylum was granted in both cases, neither decision sets any precedent or offers the kind of legal reasoning that would help advocates address the issues that have arisen in gender asylum claims (Interpreter Releases 13 May 2002, 692).

For a searchable database (non-exhaustive) of the United States Immigration Court, Board of Immigration Appeals and Federal Court decisions related to gender-based asylum cases, please refer to the "Law" section of the Center for Gender and Refugee Studies Website at .

With regard to domestic violence, victims can make a claim according to the "Self-Petitioner" category (application form I-360) which allows an abused spouse or child of a U.S. citizen to file an asylum claim in order to avoid being legally bound to the abuser (US 30 Oct. 2002 a).

Gender-based claims therefore depend upon the nexus between gender-related persecution and one of the five categories listed above, according to the Quality Assurance Officer (ibid.). The Officer illustrated that a woman may seek protection from a forced marriage based on her "political opinion" that she has the right to choose her husband (ibid.). According to one Immigration Judge:

"Political opinion" includes a political opinion imputed to a woman because she is perceived by the established political/social structure as expressing politically antagonistic views through her actions or failure to act. This would include her refusal to conform to religious or cultural norms or the roles assigned to women in her country or culture (Interpreter Releases 13 May 2002, 692).

The Quality Assurance officer could not confirm the number of gender-based claims that have been processed to date in the United States; however, she commented that gender-based claims were a small percentage of the total claims processed in the New York Office (US 30 Oct. 2002 a). Stephen Knight estimated that there had been hundreds of gender-based asylum claims made in the United States to date (CGRS 30 Oct. 2002). According to Knight's 13 May 2002 article on gender and asylum, there were more than 70 gender-based claims currently pending before asylum offices in the U.S., at least 60 pending before Immigration Judges and 40 before the Board of Immigration Appeals (Interpreter Releases).

Correspondence sent to the Research Directorate by the Quality Assurance Officer at the New York Asylum Office cites the earliest precedent-setting cases in relation to gender-based persecution:

As far as the earliest precedent decision on gender-based claims is concerned, in a May 1993 decision, the U.S. Board of Immigration Appeals (BIA) granted asylum to a Haitian woman who alleged that she had been gang-raped by three soldiers after they broke into her family home and identified her as an Aristide supporter. The BIA found that she had demonstrated a well-founded fear of persecution on the basis of political opinion because she "suffered grievous harm in direct retaliation for her support of and activities on behalf of Aristide." Mater of D-V-, 21 I & N. Dec. 77 (BIA 1993). This is the first BIA decision that explicitly recognized that rape is a form of grievous harm, and that Haitian women, raped for political retribution, can set forth claims which deserve and warrant protection within our laws. In May 1995 BIA formally designated the case as a binding precedent for future asylum adjudication and thus officially acknowledged that women may suffer persecution in the form of rape.

D-V- is cited in Matter of Kasinga, Int. Dec. 3278 (BIA 1996). In granting that claim, the Board recognized the gendered nature of the harm, in that case female genital mutilation (hereinafter "FGM"), the social and cultural context in which it would be perpetrated, as well as the treatment of the practice of FGM in international human rights law (30 Oct. 2002 b).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

Amnesty International. 22 January 2002. "Action Appeal: Rodi Alvarado, from Guatemala." [Accessed 30 Oct. 2002]

Center for Gender and Refugee Studies (CGRS). 30 October 2002. Telephone interview with Stephen Knight, Coordinating Attorney.

Interpreter Releases. 13 May 2002. Vol. 79, No. 20. Stephen Knight. "Seeking Asylum From Gender Persecution: Progress and Uncertainty." [Accessed 30 Oct. 2002]

United States. Asylum Office. New York. 30 October 2002 a. Telephone interview with Quality Assurance Officer.

_____. 30 October 2002 b. Correspondence sent by Quality Assurance Officer.

Additional Sources Consulted

IRB Databases

United States Committee for Refugees. 2002. "Worldwide Refugee Information." Country Report: United States.

Copyright notice: This document is published with the permission of the copyright holder and producer Immigration and Refugee Board of Canada (IRB). The original version of this document may be found on the offical website of the IRB at http://www.irb-cisr.gc.ca/en/. Documents earlier than 2003 may be found only on Refworld.

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