The United States has been denoting for decades about whether women have the right to the protection of refugees in fleeing gender violence. Under different administrations, the Department of Justice has established and invested precedents, issued and repealed decisions. But the last Flip-Flop of the Trump administration is not just another alternation between the rules.
In July, the Trump Administration Immigration Court, the Immigration Appeals Board issued A deeply worrying decision. The ruling argued that a “particular social group”, one of the five reasons for refugee protection, cannot be defined by gender or by gender combined with nationality. The failure, in a case known as Kesg-, It is binding for all judges throughout the country.
Legal reasoning is little disgusting and alarming. It seeks to return the refugee law to an era in which violence against women was dismissed as a private issue, not of concern for governments or human rights institutions. It is part of a broader and continuous assault of the Trump administration in Women's rights and Immigrant rights – In this case, trying to go back to 1992.
It was in 1993, in the Vienna Conference on Human RightsWhen the phrase “Women's rights are human rights” won global prominence. This was an answer to the long -standing approach in the violation of civil and political rights by governments, while much of violence against women was committed by non -state actors. Women and girls fleeing gender violence were considered outside the limits of protection. But Vienna's conference marked a turning point, which led to a transformative change in the way in which governments and international organizations approached gender violence, because much of violence in this world is aimed at women. Laws and policies were adopted worldwide to advance women's rights, even for those seeking refugee protection.
Low international and US lawA refugee is someone with a well -founded fear of persecution linked to “race, religion, nationality, membership in a particular social group or the political opinion” of that person who are commonly known as the protected reasons. Gender does not explicitly appear, and as a result, women fleeing gender -based persecution forms, such as murders for honor, female genital court, sexual slavery or domestic violence, They were often denied protection, With its incorrectly categorized risk as “personal” or “private”, and is not connected to one of the protected motifs.
To address the wrong idea that women are outside the scope of refugee protection, starting in 1985 The United Nations High Commissioner for Refugees It issued a series of guidance documents that explain that, although “gender” does not appear as a protected land, women could often be considered a “particular social group” within a country. The commissioner asked the countries that were parties of the International Refugee Treaty – the 1951 Refugee Convention and its 1967 protocol – To issue guidance for your judges Recognize the ways in which gender -based statements could comply with the definition of refugees.
The United States was one of the first to respond to the call. In 1995, the Department of Justice issued a document Instruct asylum officers to consider the evolutionary understanding of women's rights as human rights. The following year, the Immigration Appeals Board issued a Cuenca decisiongranting asylum to a young woman fleeing from the genital cut. The Court acknowledged that claims for gender violence could qualify under the category of “particular social group.”
However, the way forward was anything less soft. In 1999, the same court denegated asylum To a Guatemalan woman who endured a decade of brutal batteries and death threats of her husband, while the State refused to intervene. Atty General Janet Reno found the decision to be so out of tune with American policy that he used his authority to evict. And so, women remained eligible to be considered a “particular social group” when they were looking for refuge in the United States, the opinion was affirmed by A 2014 case Recognizing that women fleeing domestic violence could qualify for asylum.
But that progress was short. In 2018, Atty. General Jeff Sessions took jurisdiction Anabel's caseA Salvadoran survivor of domestic violence whom the United States Immigration Court had granted asylum.
Sessions governed This domestic violence is an act of personal or private violence, instead of persecution due to protected land. This characterization of violence as personal or private was in direct repudiation of the principle that women's rights are human rights, which deserve human rights resources, such as asylum.
The Biden administration sought to undo the damage. In 2021, Atty. Gen. Merrick Garland unoccupied that failure and restored the precedent of 2014, restoring a protection measure for gender claims.
Now comes the recent ruling of the Immigration Court under the Trump administration. Going beyond the determination of the sessions that gender violence is personal, the court is surprising in the heart of the legal framework itself to gender safe or gender nationality as a valid way of defining a social group. This erects an even higher barrier for women and girls fleeing persecution. It is a transparent attempt to remove decades of legal progress and return to an era when the suffering of women was invisible in the refugee law.
The implications are deep. This decision will Much more difficult for women and girls to win asylum, Although their claims often involve some of the most atrocious human rights violations. But it does not exclude all the statements, each one must decide for their own facts, and there is no doubt that the precedent will be challenged in federal courts throughout the country.
Now another investment is needed, so that the fight for gender equality moves again in the right direction. Our refugee laws should protect women, because women should not be subject to gender violence. That is, in fact, one of our human rights.
Karen Musalo is a law teacher and founding director of the Center for Gender Studies and refugees at UC Law, San Francisco. She is also co -author of “Law and refugee policy: a comparative and international approach.”
