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  • Article:Asylum Officer Training Materials on "Gender-related Claims" Released by The USCIS in Response to a Freedom of Information Lawsuit By David L. Cleveland

    Asylum Officer Training Materials on "Gender-related Claims" Released by The USCIS in Response to a Freedom of Information Lawsuit

    by


    US-CIS recently released asylum officer training materials dealing with gender claims. A 56-page Training Module, entitled “Gender-Related Claims,” dated May 16, 2013, is available at the “Asylum Officer” page of the Louise Trauma Center. [www.louisetruama.weebly.com] and at the AILA website: AILA Doc. 1707 1402.

    The Training Module was released in settlement of a Freedom of Information Act lawsuit filed by Catholic Charities of Washington DC.

    This module has a nice table of contents, and was written by a person very sympathetic to the suffering of women.

    RAPE

    “It is important for you to remember that the appearance of sexual violence in a claim does not mean that the claim is an instance of purely ‘personal harm.’” Page 17. Rape “is not primarily motivated by sexual desire…” Page 18. In Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000) the court reversed an IJ who deemed testimony speculative. The applicant testified in essence: “I don’t know why he raped me…. [but after a leading question, she said]: It was because I am a member of the Amhara ethnic group. If I had been a Tigrean ethnic, he would not have raped me.”

    Ostracism after a rape “may itself be sufficiently serious to constitute persecution.” Page 30. Thus, even if the woman was raped not on account of a protected ground, society may ostracize her anyway. Such a woman could be granted asylum. Page 30.

    FORCED MARRIAGE

    “In some circumstances, a forced marriage may be determined to be persecution.” Page 20. See Qu v. Holder, 618 F.3d 602, 607-09 (6 th Cir. 2010).

    DOMESTIC VIOLENCE

    Some women stay with the batterer, because it is safer than leaving. Page 22.

    HONOR CRIMES

    The New York Times published an article dated December 14, 2011 describing how a rape victim in Afghanistan was jailed on charges of “forced adultery.” Page 24. In 2004, there were reports of rape victims in Sierra Leone being forced to marry the rapists.

    FEMALE GENITAL MUTILATION

    FGM is capable of repetition. Page 30. A woman is not required to show she would “undergo the identical form of past harm to establish well-founded fear in cases in which the past harm (e.g. FGM) is unlikely to be repeated.” Page 31.

    A parent “who actively opposes FGM and takes affirmative steps to keep a child from undergoing the procedure could conceivably suffer other harm on account of this political or religious opinion.’’ [Page 31, emphasis in original].

    DISCRIMINATION

    Discrimination and harassment “may amount to persecution in some cases. Page 32. “An applicant’s deprivation of educational opportunities, the right to work…and other deprivations of internationally recognized rights may constitute persecution….” Page 32. Being forced to engage in conduct “abhorrent to that individual’s deepest beliefs” could be persecution. Fatin v. INS, 12 F.3d 1233, 1242 (3d Cir. 1993) (having to obey strict dress codes). Page 32. Fatin was cited again on pages 35, 36, 37, and 38.

    POLITICAL OPINION

    Opposition to discrimination could be the expression of a political opinion. Page 36. “Feminism is a political opinion….” Page 36. Opposition to an arranged marriage might cause authorities to “attribute a feminist political opinion to a woman…” page 36. Opposition to discrimination could be evidence of a religious belief. Page 36.

    SOME CONSIDERATIONS

    Relatives may not be aware of the crime, because the victim was ashamed to tell them. Page 26. Some women will not speak freely if a male relative, translator, attorney, or asylum officer is in the room. Page 26. An interpreter may substitute the word “harm” for “rape” because of his own ideas. Page 26.

    These questions, at page 28, may help:

    “I know that some women in your country have had bad experiences. Everything you say here is confidential. No one will know what you tell me. Is there anything else you want to tell me?”

    “Would anything happen to you if your family and community found to what happened to you while you were detained?”

    Demeanor is “often an unreliable and misleading indicator of credibility.” Page 42. Some torture victims show great emotions; “others may exhibit no emotion at all.” Page 42.

    Comments of the author

    1] Perhaps this is a good social group: “Chinese daughters [who are] viewed as property by

    virtue of their position within a domestic relationship.” Hui v. Holder, 769 F.3d

    984, 985 (8th Cir. 2014).

    2] This training module was written before Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA

    2014) (married women in Guatemala who are unable to leave their relationship can constitute a cognizable particular social group).

    3] Many abused women have been denied asylum:

    Cardona v. Sessions, 848 F.3d 519 (1st Cir. 2017) (dating a man for three months is not a relationship she could not leave)

    Fuentes-Erazo v. Sessions, 848 F.3d 847 (8th Cir. 2017) (the woman left the abuser and lived in the country for 5 more years)

    Jeronimo v. U.S. Att’y Gen., 678 Fed. Appx. 796 (11th Cir. 2017) (woman who never complained to police, who left husband and lived for seven uneventful months with parents)

    Vega-Ayala v. Lynch, 833 F.3d 34 (1st Cir. 2016) (woman never lived with the abuser, [who spent much time in prison]; the abuser just wanted money)

    Lopez-Diaz v. Lynch, 661 Fed. Appx. 116 (2d Cir. 2016) (girl abused by grandmother who admitted that “she did not know why” she was abused)

    Bol-Velasquez v. Att’y Gen., 650 Fed. Appx. 118 (3d Cir. 2016) (indigenous woman was punched by boyfriend; he cut the leg of son; so, she fled; opened a street stand; gang demanded free food; then money in addition to food; so, she closed the stand; gang demanded she re-open if, or we will take your son!

    “Indigenous woman without familial protection” is probably not a particular social group, but, regardless, there is no nexus. Gang is just a group of ordinary criminals. Applicant admitted they rob men as well. She never went to police, so no CAT relief).

    In re Yessica Rusio Alvarado-Euceda, 2015 WL 7074 213 (BIA 2015) (woman was not married to the abuser, she was able to leave him; the police did respond to some degree)

    = = = = =


    About The Author

    David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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