Gender is oftentimes a focal point of asylum cases in the United States. The U.S. protection framework has been fairly progressive in its interpretation of the immutability and importance of gender in ascertaining those who need protection and why an individual may be persecuted or in need of protection. Immigration Courts, the Board of Immigration Appeals, the Circuit Courts and the Attorney General have all recognized certain instances where gender was an inherent component of an individual’s past persecution or likely future persecution and offered protection on account of the connection between gender and persecution. The most famous cases of gender-based persecution are Matter of Kasinga, when Female Genital Mutilation was recognized as a form of persecution and the Matter of R-A when domestic violence was recognized as persecution. Asylum adjudicators, such as asylum officers and Immigration Judges, are trained on gender sensitivity and how to account for gender in individual cases. Additionally, forms of protection aside from asylum have been created or amended to protect those, particularly women that are fleeing from domestic violence, human trafficking and other crimes. Despite these tremendous efforts and achievements, a coherent gender analysis is absent from the U.S. protection system, which creates an unequal and inequitable legal protection framework.
The U.S. asylum system as it currently operates regarding gender-based asylum claims reinforces a stereotype that women are primarily victims, in need of assistance and that sexual violence can have a greater priority than non-sexual violence. Within the U.S. asylum system, current political and legal rhetoric focuses on creating mechanisms for ‘protecting’ women ‘victims’ from a myriad of gender-specific forms of violence. These include sexual violence, rape, forced prostitution, forced marriage, female genital mutilation (FGM), coercive family planning policies, honor killings, gender -based violence (GBV) and domestic violence. This focus hinders the development of a gender equitable system that would protect both men and women from all forms of violence and minimize the frameworks that reproduce gender stereotypes.
It is undeniable that these legal frameworks and precedents serve an important role in protecting women refugees and citizens in the U.S. and establish vital international standards, but simultaneously, they create a legal structure that reinforces the stereotype that women are victims and in need of protection. Furthermore, it monopolizes sexual violence while concurrently delegitimizing physical violence and the experiences of men and other women in conflict situations.
This point is best exemplified by the Violence Against Women Act. According to USCIS, “The VAWA provisions in the INA allow certain spouses, children, and parents of US citizens and certain spouses and children of permanent residents to file a petition for themselves without the abuser’s knowledge. This allows victims to seek both safety and independence from their abuser, who is not notified about the filing.” This is a tremendous advancement for immigrant spouses of abusive U.S. citizens or lawful permanent residents to flee the abusive relationship without fear of losing status. The problem is that the name “Violence Against Women Act” implies that only women can apply and further suggests that only women are victims. Men often think that they are not eligible to apply for this form of relief, even thought USCIS clearly states, “The VAWA provisions, which apply equally to women and men.”
Adopting a comprehensive gender lens would recognize the potential harm in utilizing the name of “the violence against women act” and encourage policy makers to adopt a more gender neutral name such as the “violence against spouses act” or something along those lines that would apply that both women and men can apply for this relief and that both women and men can be victims or abusers.
There are some clear practical concerns that coincide with these trends. A focus on female victimhood and sexual violence also runs the risk of unintentionally encouraging false claims of sexual violence. There is concern that immigration fraud is an ever-growing problem in the U.S. and fraudulent asylum claims are of extreme concern. There is a growing industry in the U.S. of malicious guidance from unqualified actors, notarios or unbarred attorneys or un-licensed legal councilors, in particular, encouraging, if not coaching, immigrants with the ‘right’ things to say to win an asylum case. This pervasive fraudulence has the real potential to undermine the entire foundation of the U.S. asylum system and could jeopardize future cases of real persecution.
Rape and other forms of sexual violence are indeed a threat and a reality for women (and men) living in both conflict areas and in non-conflict areas (especially the U.S.); special care should be given to victims of these types of crimes. The essential problem is that legal structures reinforce societal expectations, norms, beliefs and behaviors. The structure as it stands legitimizes the treatment of women as victims, and emphasizes sexual violence over non-sexual violence. Both women and men with different experiences and backgrounds are deserving of protection and opportunities, and the U.S. protection framework should strive to make this as much a reality as possible without being exclusionary or replicating negative stereotypes.
 For the purposes of this discussion, gender refers to the socially constructed roles ascribed to women and men, as opposed to biological and physical characteristics. Gender roles and expectations vary according to socioeconomic, political, and cultural contexts, and are affected by other factors, including age, class and ethnicity. If we are to adhere to this understanding, that masculinity and femininity are socially constructed and therefore changeable, it is necessary to adopt a gender lens when analyzing or creating policy, programs and laws, to determine how men and women are perceived, treated and benefit based on their biological sex. A gender lens recognizes disparities, unequal treatment and areas where improvements can be made.