A Short History of Gender Asylum in the United States: Resistance and Ambivalence May Very Slowly be Inching Towards Recognition of Women’s Claims

摘要

This article provides an overview and analysis of protection for gender-related claims to refugee status, with a focus on the United States. It defines the term “gender-related” and explains the historical interpretive barriers to such claims. The article examines the earliest United Nations High Commissioner for Refugees pronouncements on the issue – beginning with Executive Committee of the High Commissioner’s Programme Conclusion No. 39 in 1985, and the United Nations High Commissioner for Refugees’ first Guidelines on the Protection of Refugee Women in 1991, and continues through its Social Group and Gender Guidelines, issued in 2002. Within this context (and the context of other developments – such as the 1993 issuance of Canadian Guidelines), the article discusses developments in the United States, beginning with the release of “Gender Considerations” in 1995. It reviews the subsequent development of the United States jurisprudence, from Matter of Kasinga in 1996, to the recent resolution of Matter of R-A- (the case of Rody Alvarado) in 2009. It explains the current position of the Obama Administration, as set forth in a brief in the case of L.R. Through the discussion of this jurisprudence, the article highlights the ambivalence among United States adjudicators, and examines the advances and setbacks in the recognition of gender-related claims to protection. It concludes that the United States appears to be adopting a position more consistent with international guidance, but that until there is binding precedent, adjudicators remain free to retreat from the small advances that have been made.