Gender-based asylum claims are often based on persecution due to one's sex or gender identity, which may include physical violence, threats, coercion, discrimination, exploitation, and/or harassment. Asylum seekers may be denied if they are unable to prove that their fear of persecution is well-founded and that they cannot obtain protection from their government, but this can be difficult for those who have been victims of gender-based violence. National security laws play an important role in determining what types of cases are accepted, how evidence is gathered and evaluated, and whether asylum applicants should be allowed to remain in the country.
The U.S. Immigration and Naturalization Service (INS) has a history of denying gender-based asylum claims despite evidence of persecution, including sexual assault and domestic violence. In some cases, the INS has argued that such abuse is private and not a matter of public concern. This position was upheld by the Board of Immigration Appeals (BIA), which ruled that "persecution" requires proof of state action, making it difficult for women to demonstrate that they would face persecution if returned to their home countries.
Recent cases have shown that domestic violence can constitute persecution under international law, and that gender-based asylum claims must be taken seriously.
In 2018, the BIA reversed course and granted asylum to a Guatemalan woman who had been raped and threatened with further harm after refusing her husband's advances. The BIA recognized that domestic violence can qualify as persecution under international law, although it still required evidence of state involvement or acquiescence. Similarly, in 2019, a transgender woman from El Salvador was granted asylum based on her fear of being targeted by gang members due to her sexuality and inability to obtain police protection. These rulings represent progress towards recognizing the rights of vulnerable individuals seeking safety and security.
National security laws may also play a role in limiting the scope of gender-based asylum claims.
The Trump administration's travel ban has led to increased scrutiny of Muslim immigrants and refugees, including those fleeing gender-based violence. In addition, government policies aimed at curbing illegal immigration may disproportionately affect marginalized communities, such as LGBTQ+ people.
The process of adjudicating asylum claims can involve lengthy delays and high costs, which can create additional barriers for applicants.
Despite these challenges, advocates continue to push for greater recognition of gender-based asylum claims. Organizations like Amnesty International have called for stronger protections for women and LGBTQ+ individuals facing discrimination and violence, including support for grassroots organizations working to protect human rights. With continued pressure from advocacy groups and legal experts, it is hoped that more victims of gender-based violence will be able to seek and receive the assistance they need.
How do national security laws intersect with asylum claims on gender grounds?
The interconnection between national security laws and asylum claims based on gender is a complex issue that requires careful consideration of both legal and cultural factors. In many countries, laws and regulations are designed to protect national security and prevent terrorism, while also recognizing the importance of asylum seekers who have been persecuted due to their gender identity or sexual orientation.