In August 2014, the US Board of Immigration Appeals (BIA), the highest immigration tribunal in the country, conceded that women fleeing domestic violence could meet the refugee definition and qualify for protection.
The case in question, Matter of A-R-C-G et al., involved Aminta Cifuentes, a Guatemalan woman who had suffered egregious brutalization over a 10-year period at the hands of her spouse. Her husband beat and kicked her, including incidents where he broke her nose and punched her in the stomach when she was eight months pregnant with such force that the baby was born prematurely and with bruises. Ms. Cifuentes told her husband she would call the police, but he said it would be pointless since “even the police and the judges beat their wives.” Unfortunately, her husband’s claim bore true; she called the police on at least three occasions and they dismissed her complaints as marital problems and told her to go home to her husband.
The decision in Matter of A-R-C-G et al. is notable for many reasons, not the least because it put an end to a controversy that had been raging in US law since 1999 when the same body denied protection to another Guatemalan woman, Rody Alvarado, whose case presented very similar facts. Ms. Alvarado, like Ms. Cifuentes, had suffered more than a decade of violent abuse, and her appeals to both the police and the judicial system had been met with scorn, indifference, and inaction.
In the interim—between 1999 when the BIA denied Ms. Alvarado’s claim, and 2014 when it ruled in favor of Ms. Cifuentes—there existed a remarkable level of disagreement at the highest levels of the US government on the central issue of whether women fleeing domestic violence are entitled to asylum protection. No fewer than three Attorneys General of the United States (Janet Reno, John Ashcroft, and Michael Mukasey) became personally involved in the issue, and various federal agencies adopted diametrically opposed positions. These entrenched difference in policy positions led to a virtual deadlock that lasted for 15 years.
Why has the issue of protection for women who are brutalized by their intimate partners been such a lightning rod for controversy and evoked such strong dissension and resultant gridlock? In order to answer, it is necessary to situate the question of asylum protection for victims of domestic violence within the broader context of “gender asylum” (claims for protection arising from gender-motivated rights violations), and to examine both the origins of our modern refugee protection regime and the historical resistance to recognizing women’s rights as human rights.
The birth of our international refugee protection regime can be traced back to the aftermath of World War II and the recognition of the failure to protect Jews and other victims of the Holocaust. Many who fled and attempted to seek haven were turned back. One of the most shameful and iconic examples of this refoulement occurred when the US refused safe harbor to a ship, the St. Louis, carrying Jews from Europe after they were denied promised landing in Cuba. The St. Louis with its more than 400 passengers was forced to return to Europe, where many of the people on board perished in concentration camps.
When representatives of state governments came together to draft an international treaty to address refugees, the World War II experience stood foremost in their consciousness. The 1951 Convention Relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol defined a refugee as an individual with a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,” grounds which reflected the historical period and the drafters’ understanding of reasons for persecution. The drafting of these treaties preceded the recognition of women’s rights as human rights, and therefore, it is not surprising that gender is absent from the list of criteria.
There are currently 147 countries, including the United States, that are parties to the Refugee Convention, its Protocol, or both. These countries have, with some qualifications, adopted the international refugee definition in their domestic legislation, with its requirement of demonstrating that persecution be linked to one of the five aforementioned “protected grounds.”