Good afternoon.  I first want to thank Drake University's Department of Women's Studies for inviting me here and all of you for coming.

Just to tell you a little about who I am, I am an international human rights advocate with a special interest in international women and children's human rights.  I have commented extensively on the practice of female circumcision in both the United States and worldwide.  Next month, I will release my first report on the commitment of 65 countries to implement the Beijing Platform for Action that was approved at the Fourth World Conference on Women in September 1995.

But let's get to the topic of why I am here today.

It is estimated that, depending on who you talk to, between 50-80% of the world's refugees are women.  These women are fleeing various types of persecution including female circumcision, morality codes, rape, and other forms of violence.  Charlotte Bunch, a noted feminist author, has observed:

Significant numbers of the world's population are routinely subject to torture, starvation, terrorism, humiliation, mutilation, and even murder simply because they are female.  Crimes such as these against any group other than women would be recognized as a civil and political emergency as well as a gross violation of the victims' humanity.¹

Persuading governments to grant asylum to these women is difficult "because of the absence of explicit recognition of gender-based persecution, and because of the social and political context in which the claims of women are adjudicated."³  Because gender is not one of the enumerated grounds of persecution in the 1951 Convention Relating to the Status of Refugees ("1951 Convention") and the 1967 Protocol Relating to the Status of Refugees ("1967 Protocol"),⁴ adjudicators have neglected gender-based claims in detailing the accepted grounds of persecution.⁵  Pamela Goldberg highlights an additional factor:  "The substantive law applied in evaluating whether an individual is eligible for refugee status is generally narrowly construed and does not usually recognize the full panoply of issues shaping an individual's reason for seeking safe haven.  This is particularly true in regard to claims presented by women."⁶  Another problem is that women often must plead their asylum cases before male adjudicators, who tend to regard gender-based persecution as private and personal, instead of the socially significant phenomenon that it is.⁷

In the course of our time together, we will take a closer look at what is gender-based persecution.  I then want to look at how United States asylum law currently works and how it has been litigated in the courts.  Next, we will look at the controlling documents that shape asylum law in the United States.  Finally, I will offer suggestions on how the United States can begin to recognize gender-based persecution in asylum claims.
 

A.  United States Definition of Persecution

Before I begin to define what "gender-based persecution" is, we first need to look at what "persecution" is.

In order to apply for asylum in the United States, an individual must have a well-founded fear of persecution in their home country.⁸  The problem with this is there is not a standard legal definition of persecution in the United States.  Several federal circuit courts of appeal and the Board of Immigration Appeals have all used different interpretations of persecution at one time or another.

The Ninth Circuit, for example, defines persecution as "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive."⁹  The court cautions, however, that "persecution is an extreme concept that does not include every sort of treatment our society regards as offensive."¹⁰  The Seventh Circuit, in the meantime, has defined persecution as "punishment for political, religious, or other reasons that our country does not recognize as legitimate."¹¹  The BIA defines persecution as "the infliction of harm on account of a 'differing' political opinion, one which the supposed agent of persecution finds 'offensive.'"¹²

By using the above definitions of persecution, let's look at various forms of gender-based persecution.

B.  Female Circumcision

The practice of female circumcision¹³ is about 2500 years old, predating both Christianity and Islam.¹⁴  Female circumcision involves the removal of the clitoris in one of three procedures.  The first, known as excision, involves the removal of the prepuce, or hood, of the clitoris.  In the second procedure, known as clitoridectomy, the clotiros is removed along with the labia minora, leaving the vulva intact.  The most severe form, infibulation, involves the removal of the clitoris, labia minora, and labia majora.  The vulva is then sutured together, leaving only a small opining for the passage of urine and menstrual fluid.¹⁵

It is estimated that over 100 million women worldwide have undergone female circumcision.¹⁶  The victims of the practice are usually infants and toddlers, although the procedure is also performed on teenagers and adult women.  Female circumcision is practiced in about 40 countries.¹⁷

C.  Rape

This category of gender-based persecution is perhaps one of the most hotly debated around the world.  Rape has been defined by one commentator as "forced sexual intercourse, or threats thereof."¹⁸  Another commentator points out that women who base their claims of persecution based on rape are frequently denied asylum because the rape "is frequently viewed as a 'personal' act of violence rather than one of 'political' persecution."¹⁹  But Jacqueline Castel points out that "[r]ape and other forms of sexual violence are inflicted on women detainees in many countries, but rarely inflicted on men.  Interrogators and other government officials use rape as torture to intimidate women from pursuing activities that are viewed as subversive and to extract information or confessions."²⁰

Courts have also ruled that women cannot assert a right to asylum for rape or other sexual assaults based on the claim that they are "members of a particular social group," one of the five accepted grounds of persecution.²¹

D.  Morality Codes

In January 1979, Reza Pahlavi, the last reigning Shah of Iran, was forced into exile.  With the departure of the Shah and the assumption of power by Ayatollah Ruhollah Khomeni, women's rights in Iran were set back about 70 years.  Women's rights had been expanded with the Constitutional Revolution of 1907, women were declared emancipated and traditional women's clothing was abolished by the Shah in 1936, and the Family Protection Act of 1963 was ratified.²²  Laws that gave a husband the final say in whether or not his wife worked or traveled alone were not enforced.²³

Fifteen days after Khomeni took power, the Family Protection Act was repealed.²⁴  "Polygamy once again became accepted practice, divorce became the unique right of men, and the legal age for marriage was declared to be nine years old for girls[.]"²⁵

Iranian women are not allowed to marry foreigners without written permission from the Ministry of the Interior.²⁶  A man is permitted to have up to four wives and as many concubines as he wants.²⁷  A married woman must be willing to meet her husband's sexual needs at all times or else lose her right to shelter, food, and clothing.²⁸  Divorce is the "indisputable right of men," but not women.²⁹  Women receive custody of their children "only if there is no father or grandfather living."³⁰

Employment and educational opportunities were also curtailed for women after the Khomeni regime came to power.  Khomeni declared that "the physical and mental weakness of women [make] them incapable of taking up certain jobs."³¹  The government fired 40,000 women working as elementary and high schol teachers and prohibited the employment of women in government for a specific period of time.³²  Because of the strict sex segregation of teachers and students, many schools for girls have closed because of a lack of female teachers, meaning that in many rural towns, girls are denied education altogether.³³

Perhaps the most well-known and most unpopular facet of life for women is the strict Islamic dress code, especially the wearing of the chador, which became mandatory for all women.  Khomeni declared on March 6, 1979, "From now on, women have no right to be present in the governmental administration naked.  They can carry on their tasks, provided they use Islamic dress."³⁴  Women are searched to make sure that they are not wearing cosmetics or thin stockings and are subject to fines or lashings if they are not dressed properly.³⁵

The case of Iran is not unique.  Morality codes aimed at regulating women's behavior exist and are enfoced in many Middle East and Asian countries as well.³⁶

E.  Physical Violence

Our attention over the last couple of years has centered on People v. O.J. Simpson,³⁷ which has focused on domestic spousal abuse.³⁸  In fact, the Federal Bureau of Investigation estimates that a woman is beaten every 18 seconds.³⁹  The United States, however, does not have an exclusive monopoly on physical violence toward women.  There are countries in which physical violence is overlooked and, in some cases, even encouraged.

In Peru, for example, 70% of the cases reported to the police are cases of women being beaten by their partners.⁴⁰  Wife beating is the second most frequent cause of divorce in Japan.⁴¹  Until 1980, a husband was able to kill his wife for adultry in Columbia.⁴²  Wife killings in Brazil were considered to be noncriminal "honor killings" until 1991.⁴³

F.  Others

This list is not all-inclusive.  There are also other forms of gender-based persecution that warrant the granting of asylum, such as:  sexual assault, forced marriage (especially into a polygamous marriage), forced sterilization or abortion, and forced prostitution.
 

As we go through our analysis of gender-based persecution, a working knowledge of how a refugee goes through the asylum process is helpful.  I want to spend a few moments here on this point.

A.  Procedures

In the United States, immigration procedures are governed by the Immigration and Nationality Act of 1952⁴⁴ and the Refugee Act of 1980.⁴⁵  The Attorney General of the United States is charged with carrying out these laws.⁴⁶  That authority has been delegated to the Immigration and naturalization Service ("INS") of the U.S. Department of Justice.⁴⁷

A person applying for asylum must first file Form I-589, "Request for Asylum in the United States."⁴⁸  The case is assigned to a hearing officer, who determines if the applicant can be granted asylum.⁴⁹  If the hearing officer determines that the application has not shown a well-founded fear of persecution, deportation is ordered.⁵⁰

The case is then assigned to an immigration judge to determine deportability.⁵¹  If the judge does not grant asylum, the applicant can appeal to the Board of Immigration Appeals.⁵²  At this point, the applicant has exhausted the administrative process.

If the BIA upholds the immigration judge's ruling, the applicant can then apply to the federal court of appeals in the circuit where the applicant lives.  The court only has the jurisdiction to review the facts that were presented to the BIA during the claimant's hearing.  A claimant cannot present any new facts during this part of the appellate process.  If the court upholds the decision of the BIA, the applicant can then appeal to the U.S. Supreme Court.  The Court, at its discretion, will hear the case.
 

Now that we have most of the background information behind us, let's get into the meat of this lecture.

United States asylum law is not very gender-friendly.  As I mentioned earlier, the people who are charged with adjudicating political asylum requests (the majority being male), tend to view gender-based persecution claims as personal and private, not giving it the same status as other forms of persecution.  In two different cases that I will highlight here, you can see how this comes into play.

A. Saideh Fisher

Let's start with the case of Saideh Fisher, which was heard by the Ninth Circuit Court of Appeals in California.  This was the case of a woman who was trying to escape the strict morality codes of the Khomeni regime in Iran.  She filed her asylum application on behalf of herself and her son.

Saideh entered the United States on April 30, 1994 on a "fiancé" visa to marry a step-cousin who was a permanent U.S. resident.⁵³  She did not marry her cousin within the 90 day limit of the visa, but instead married Charles Fisher on August 4, 1987.  The couple was divorced in 1987.⁵⁴

Before the divorce, Charles had filed with the INS a petition in support of Saideh's application of permanent resident status.  He withdrew the petition on February 3, stating in an affidavit, "I was given $500.00 to marry my wife Saideh."⁵⁵  According to the affidavit, a co-worker had told Charles that Robert Lavasani, whom Saideh was originally supposed to have married, was going to pay Charles the $500.⁵⁶  Charles also denied in the affidavit that he and Saideh were living together on a continuous basis since their marriage.⁵⁷  Because of this, Saideh's application was denied and deportation proceedings were begun.

Two hearings were held before an immigration judge, one on May 15, 1987, the other on September 25, 1987.  At the May hearing, Saideh testified that she and Charles lived together as husband and wife for about a year.⁵⁸  In preparation for an INS interview on the validity of the marriage, she testified that she had reviewed answers with Charles.  Saideh brought handwritten notes to the interview which contained

what time she and her husband went to sleep at night, how often she saw his two daughters, what kind of food he likes, what time he comes home from work, how much money he gives her, how long they have lived in their new house, what kind of car they own, what kind of television programs he watches, his parents' names, what clothing items he owns, and what brand of cigarettes he smokes.  The notes also contained information such as her parents' names, her own birth date, and her place of work.⁵⁹

At the September hearing, Saideh testified that she left Iran in February 1984 because of three incidents.  In the first one, assumed to have taken place six months before she left Iran, she attended a party at a male friend's home and observed him in a "bathing suit."⁶¹  Saideh and several other female guests were taken to a "Comite" and held there for several hours.  While there, authorities recorded their names and addresses and were told that "being present with a man in a bathing suit was 'incorrect.'"⁶²  She was released soon afterwards.

The next incident occurred one month before Saideh left Iran.  Saideh was stopped on the street and ordered into a car at gunpoint by four government officials.⁶³  Her crime?  She "had a few pieces of hair hanging out [of her veil] by mistake."⁶⁴  She was told that she was not dressed properly, returned to her home, and told never to appear again like that in public.

The third incident occurred shortly after the "veil" incident.  Government authorities came to Saideh's home, looking for her brother-in-law, who was in prison at the time for political activities.⁶⁵  Saideh was not questioned or held, but was asked "to inform them if she learned of any persons who were 'against the regime[.]'"  Saideh said that she became ill soon afterwards, missed several months of work, and eventually left Iran.⁶⁶

The immigration judge, although finding Saideh's testimony credible, denied her application for asylum and withholding of deportation because she did not have a well-founded fear of persecution, nor did she face a clear probability of persecution.⁶⁷  The judge also denied her request for voluntary departure because of her sham marriage to Charles Fisher.

Upon review by the Board of Immigration Appeals, the Board ruled that the "general enforcement of Iran's rules concerning the interaction between men and women and clothing restrictions, which require all women to wear 'ultraconservative dress,' do not 'rise to the level of persecution.'"⁶⁸  The Board further ruled that "although Fisher stated she feared persecution upon return to Iran, she failed to present sufficient evidence showing how the government's activities related specifically to her and her beliefs."⁶⁹

Saideh appealed the BIA's decision to the Ninth Circuit Court of Appeals.  A three-judge panel of the court vacated the BIA's decision and remanded the case back to the Board because "(1) the Board failed to consider whether Fisher would suffer future persecution if she returned to Iran; (2) the Board improperly defined 'persecution'; (3) Fisher may suffer persecution on account of her religious beliefs as a result of Iran's enforcement of its conduct and dress rules; and (4) Fisher may face persecution of account of her political belief based on a "totality of the circumstances."⁷⁰  The court later voted to rehear the case en banc and throw out its earlier opinion.

In the en banc ruling, the court indicated that Saideh failed to established that she was selectively being singled-out by the government for her religious beliefs.  And because the immigration judge found her marriage testimony not credible, the court "accord[ed] this finding 'substantial deference.'"⁷¹

B.  Fauziya Kasinga

The second case is one that most of you are familiar with, the case of Fauziya Kasinga.  In this precedent-setting case that was decided on June 13, 1996, the Board of Immigration Appeals, ruling en banc, ruled that female genital mutilation is a form of persecution and granted asylum.  The ruling is binding on the nation's 156 immigration judges.

Fauziya Kasinga is a member of the Tchamba-Kunsuntu Tribe of northern Togo.⁷²  Upon the death of her father in 1993, her aunt, her father's sister, became head of the family under tribal custom.  Fauziya's mother was banished from her home and went back to her family in Benin.⁷³  Fauziya was 17 years old at this point.

Her aunt pulled her out of school and forced her into a polygamous marriage in October 1994 to a man who was 45 years old and had three other wives.⁷⁴  Under tribal custom, her aunt and husband planned to force Fauziya to undergo female circumcision before the marriage was consummated.⁷⁵

The day that the operation was to take place, an older sister helped Fauziya escape into Ghana.  Using money given to her by her mother, she took a flight to Germany.  Several hours after she arrived there, she struck up a conversation with a German woman who took her in.  While at the German woman's house, she performed cooking and cleaning duties and slept in her living room.⁷⁶

In December 1994, she met a Nigerian man while on a shopping trip.  The two struck up a conversation and Fauziya told the man her story. ⁷⁷  The man offered to sell Fauziya his sister's British passport to allow her to travel to the United States to seek asylum. ⁷⁸  Fauziya took the man's suggestion and bought the passport and a ticket to the United States, using the money given to her by her mother.

Fauziya landed at Newark International Airport and, instead of using the passport to enter the United States, instead immediately requested asylum.  She was arrested and imprisoned for about 18 months.  She was released about a month before her appeal was heard by the BIA.

In a hearing before Immigration Judge Donald Ferlise, Fauziya testified that the government of Togo would take no steps to protect her from the practice of female circumcision.  She continued that she was reported to the police and if she returned, she would be arrested and forced to return to her husband and undergo female circumcision.

Judge Ferlise denied the application, finding Fauziya to be an "incredible witness."  Judge Ferlise based this on the fact that Fauziya did not know the present whereabouts of her mother, the story of how her father could protect Fauziya and her sisters from the practice and her escape to the United States through Germany.⁷⁹

In rejecting Judge Ferlise's ruling, the BIA noted:

The applicant is a 19-year-old woman, who was a 17-year-old high school student at the time the events in question occurred.  The applicant's father had died, she was separated from her mother, and she was under the control of an unsympathetic aunt.  Her arrival in the United States followed flight from her homeland and a lonely journey of thousands of miles that took her through a strange country.  Her Testimony followed more than 8 months of continuous INS detention, in several facilities, one of which was closed by a riot."⁸⁰

There are currently three documents, two international and one domestic, that hold the fate of whether the United States grants asylum based on gender.  Let's take a closer look documents.

A.  1951 Convention Relating to the Status of Refugees

On July 28, 1951, during the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, the General Assembly adopted the Convention Relating to the Status of Refugees.  The Convention went into force on April 22, 1954.

At the time of its adoption, U.S. law stated that a refugee must establish a "clear probability" of persecution before being granted asylum in the United States.  Article I of the Convention, however, softened that requirement by stating that a refugee only need show a "well-founded" fear of persecution in her homeland.

During this time, however, the United States was "skeptical of pledging unlimited support to refugees."⁸¹  First Lady Eleanor Roosevelt, who was the United States representative to the United Nations at the time, "emphasized the limits of American generosity and warned against an 'increasing tendency to drive the United Nations into the field of international relief and to use its organ as the source and center of expanding appeals for funds.'"⁸²  Because of this skepticism, the United States never became a party to the Convention.

B.  1967 Protocol Relating to the Status of Refugees

The only flaw with the 1951 Convention is that is only covers refugees as of January 1, 1951 or earlier.  The United Nations recognized this and on October 4, 1967, a Protocol was put into force, with the view of the current parties to the 1951 Convention acceding to it.  The 1967 Protocol binds parties to articles 2-34 of the 1951 Convention and changed the definition of refugee in Article 1 of the 1951 Convention to include all persons who become refugees after January 1, 1951.

Bowing to international pressure, the United States acceded to the 1967 Protocol after its passage and the Senate ratified it on October 4, 1978. ⁸³  However, the United States did not put the new definition into its asylum laws until 1980 when, after a landmark court case in the Seventh Circuit Court of Appeals, the Congress passed the Refugee Act of 1980, which threw out the "clear probability" standard and required refugees to show a "well-founded" fear of persecution.

C.  United States Gender Guidelines

On May 26, 1995, the United States Office of International Affairs of the U.S. Department of Justice issued a memorandum entitled "Considerations For Asylum Officers Adjudicating Asylum Claims From Women."  The memo, issued by Phyllis Coven to the INS Asylum Officer Corps, was issued to provide "guidance and background on adjudicating cases of women having asylum claims based wholly or in part on their gender."⁸⁴

Unlike similar guidelines that were implemented in Canada two years earlier, the American Guidelines do not create, per se, another category in which women can be granted asylum, but rather instructs Asylum Officers to be more sensitive to the plight of women coming in their own right to request asylum.  Asylum Officers are to be "customer friendly" when dealing with women claimants, to allow them to "discuss freely the elements and details of their claims."⁸⁵  The memo points to these variables:

1. The laws and customs of some countries contain gender-discriminatory provisions.  Breaching social mores (e.g., marrying outside of an arranged marriage, wearing lipstick or failing to comply with other cultural or religious norms) may result in harm, abuse or harsh treatment that is distinguishable from the treatment given the general population, frequently without meaningful recourse to state protection.  As a result, the civil, political, social and economic rights of women are often diminished in these countries.
2. Although women applicants frequently present asylum claims for reasons similar to male applicants, they may also have had experiences that are particular to their gender.  A woman may present a claim that may be analyzed and approved under one or more grounds.  For example, rape (including mass rape in, for example, Bosnia), sexual abuse and domestic violence, infanticide and genital mutilation are forms of mistreatment primarily directed at girls and women and they may serve as evidence of past persecution on account of one or more of the five grounds.
3. Some societies require that women live under the protection of male family members.  The death or absence of a spouse or other male family members may make a woman even more vulnerable to abuse.
4. Women who have been raped or otherwise sexually abused may be seriously stigmatized and ostracized in their societies.  They may also be subject to additional violence, abuse or discrimination because they are viewed as having brought shame and dishonor on themselves, their families, and their communities.⁸⁶

A.  Recommendations

During the course of this presentation, I have tried to outline for you why a new category of persecution is needed.  My work in this area over the past couple of years has focused on stressing the need for the United States and other world governments to "reform [their] political asylum laws and grant political asylum based on . . . gender-related persecutions."⁸⁸  My specific recommendations for instituting gender as a new category of persecution in the United States follow.

Before the United States and other world governments begin to amend their immigration and asylum laws, the United Nations General Assembly must act.  My first recommendation, therefore, is that Article 1(A)(2) of the 1951 Convention, which gives the legal definition of a Convention refugee, be amended as follows [my amendments are in italics]:

(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of gender, race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person owing to a well-founded fear of persecution for reasons of gender, that persecution shall include, but not be limited to, rape, genital mutilation, forced sterilization, domestic violence, or any other persecution that can occur to a person on the basis of being of a certain sex.

In the case of a person who has more than one nationality, the term "the country of his or her nationality" shall mean each of the countries of which he or she is a national, and a person shall not be deemed to be lacking the protection of the country of his or her nationality if, without any valid reason based on well-founded fear, he or she has not availed himself or herself of the protection of one of the countries of which he or she is a national.

Next, I would recommend that the Congress look hard into using the gender guidelines that were issued by the Department of Justice two years ago.  Canada, the only other nation to have guidelines concerning gender-based persecution, requires members of the Immigration and Refugee Board, the Canadian equivalent to the Board of Immigration Appeals, to consider the guidelines in adjudicating asylum cases or be prepared to explain why they were not used in negative decisions.  That same standard should be used by the United States.

To create a permanent, consistent change in political asylum law, Congress must also recognize that certain types of persecution are gender based. This recognition can be achieved by amending the Refugee Act of 1980 to include gender in the definition of persecution. This amended law would allow applicants to show a well-founded fear of persecution because of "race, religion, nationality, membership in a particular social group, political opinion, or related to gender."  The definition section of the law would have to clarify what is meant by "persecution by gender."  To do this, I would suggest using the wording that I use to amend the 1951 Convention.

The process for the recognition of gender-based persecution will not come quickly, nor will it come painlessly.  There will no doubt be many governments and legislatures that will not understand that there are certain types of persecution that can and do occur to a person because they are of a certain sex.  In the guidelines and evidence that this article has given, it is hoped that we are truly on our way to discussing the need to recognize these forms of persecution and giving women the protection that they so need and deserve.

1.  Charlotte Bunch, "Women's Rights as Human Rights:  Toward a Re-Vision of Human Rights," 12 Hum. Rts. Q. 486, 486 (1990).

2.  Nancy Kelly, "Gender-Related Persecution:  Assessing the Asylum Claims of Women," 26 Cornell Int'l L. J. 625, 626 (1993) (citations omitted).

3.  Id. at 627 (citing Jacqueline R. Castel, "Rape, Sexual Assault and the Meaning of Persecution," 4 Int'l J. Refugee L. 39 (1992)).

4.  Those grounds are race, religion, nationality, membership in a particular social group, and political opinion.  Convention Relating to the Status of Refugees, adopted July 28, 1951, at art. I(A)(2), reprinted in International Human Rights Instruments of the United Nations 1948-1982 at 19 (UNIFO Publishers, Ltd. 1983).

5.  Kelly, supra note 2, at 627.

6.  Pamela Goldberg, "Where in the World is There Safety for Me?:  Women Fleeing Gender-Based Persecution," in Women's Rights, Human Rights:  International Feminist Perspectives 346 (Julie Peters & Andrea Wolper, eds., 1995).

7.  "[A]n individual who fears persecution because of a personal dispute with a foreign government official is not entitled to refugee' status. . . ."  Sanchez-Trujillo v. I.N.S., 801 F.2d 1571, 1576 n.7 (9th Cir. 1986) (citing Zayas-Marini v. I.N.S., 785 F.2d 801, 805-07 (9th Cir. 1986)) (emphasis added).

8.  8 U.S.C. § 1101(a)(42)(A) (1982).

9.  Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (citation omitted).

10.  Id.

11.  Osaghae v. USINS, 942 F.2d 1160, 1163 (7th Cir. 1991).

12.  Matter of R-, 20 I&N Dec. 621, 635 (BIA 1992) (Heilman, Board Member, concurring).

13.  There has been a dispute for quite some time as to whether the proper term for this procedure should be "female circumcision" or "female genital mutilation."  I have defended the use of the term "female circumcision" many times and I will continue to do so.  See, e.g., Gregory A. Kelson, "Granting Political Asylum to Potential Victims of Female Circumcision," 3 Mich. J. Gender & L. 257, 257 n.2.  Many feminist have insisted on using the term "female genital mutilation" because it more closely aligns with the procedure and does not identify with male circumcision.  I believe the time has come for the international human rights community and feminists groups to come together and agree on a term to describe this procedure that can be acceptable to both sides.

14.  See Alison T. Slack, "Female Circumcision:  A Critical Approach," 10 Hum. Rts. Q. 437, 443 (1988).

15.  For a more detailed description of the procedures, including ceremonies that can accompany the practice, see Robyn C. Smith, "Female Circumcision:  Bringing Women's Perspective Into the International Debate," 65 S. Cal. L. Rev. 2449, 2460-66 (1992).

16.  See "Ritual Performed on 100 Million," Cleve. Plain Dealer, May 9, 1995, at 8E.

17.  Rebecca Freligh, "Movie Seeks End To Female Circumcision," Cleveland Plain Dealer, July 4, 1995, at 4E.

18.  Jacqueline R. Castel, "Rape, Sexual Assault and the Meaning of Persecution," 4 Int'l J. Refugee L. 39, 40 (1992).  Ms. Castel explains that she made this narrow definition because many judges "have difficulty recognizing [rape] as persecution."  Id.  She further notes:

[J]udges are likely to have less difficulty concluding that more blatant forms of sexual violence, such as the use of electrical currents on the sexual organs, the insertion of hot metal objects in the vagina, and other sexually directed activities which can leave lasting physical damage, constitute persecution.

Id.

19.  Kristine M. Fox, Comment, Gender Persecution:  Canadian Guidelines Offer a Model for Refugee Determination in the United States, 11 Ariz. J. Int'l & Comp. L. 117, 126 (1994).  See also, Campos-Guardado v. I.N.S., 809 F.2d 285, 288 (5th Cir. 1987), cert. denied, 484 U.S. 826 (1987) ("these threats of reprisal [against Ms. Campos] were personally motivated . . . and that there was no indication [that Ms. Campos' cousin-assailant] maintained an interest in her because of her political opinion or any other grounds. . . .") (emphasis added).

20.  Castel, supra note 14, at 40.

21.  See, e.g., Gomez v. I.N.S., 947 F.2d 660 (2d Cir. 1991).  Carmen Gomez, a native of El Salvador, was beaten and raped on five separate occasions by guerrillas in El Salvador during her youth.  She came to the United States illegally and, after experiencing financial difficulties, began selling drugs.  She was convicted on several counts of possession of a controlled substance and was thus not eligible for protective status under U.S. law.  The court ruled that her argument "failed to produce evidence that women who have previously been abused by the guerrillas possess common characteristics . . . such that would-be persecutors could identify them as members of the purported group."  Id. at 664.

22.  See Akram Mirhosseini, "After the Revolution:  Violence of Women's Human Rights in Iran," in Peters and Wolper, eds., supra note 6, at 72.  Under the Family Protection Act, "polygamy and the sole right of men to divorce were banned, and women were given custody of children."  Id.

23.  Id.

24.  Id.

25.  Id.  Khomeni even went so far as to assert "that a girl should have her first menstrual period in her husband's house, not her father's."  Id.

26.  Id. at 73.

27.  Id.

28.  Id.

29.  Id.  The only exception to this is if there is a statement to the contrary in the marriage contract.  Id.

30.  Id.  Even in this situation, a woman can only have custody of daughters under seven and sons under two years of age.  Id.

31.  Id.  According to Ayatollah Mutahari:

The specific task of women in this society is to marry and bear children.  They will be discouraged from entering legislative, judicial, or whatever careers may require decision making, as women lack the intellectual ability and discerning judgment required for these careers.

Id.

32.  Id.

33.  Id. at 74.

34.  Id.

35.  Id. at 75.  Under Clause 102 of the Islamic Penal Code, a woman can be subject to up to 74 lashes if she is not dressed properly.  Id.  Women could be fined for wearing lipstick or any other cosmetics or even having an open button.  Id.

36.  For example, one commentator notes that in the Middle East,

[l]aws commonly provide that the wife must obey her husband, that wives are not allowed to work outside the home without their husband's permission, that men may take up to four wives, that Muslim women may not marry outside the faith, and that women are entitled to only one-half the inheritance share than men inherit in the same capacity.  Depending on the country involved, one may find that women are compelled to wear concealing garments in public, that they are excluded from studying certain subjects, that they are deprived of the right to vote, that they are barred from the legal profession and the judiciary, that their testimony in court is excluded or valued at one-half the weight of a man's, that they are not allowed to travel without the permission of a male relative or unless accompanied by a male relative, or that they are not allowed to drive cars.

Ann Elizabeth Mayer, "Cultural Particularism as a Bar to Women's Rights:  Reflections on the Middle Eastern Experience," in Wolpers and Peters, supra note 6, 176, 177.

37.  People v. O.J. Simpson, No. BA097211 (Cal. Super. Ct. 1995).

38.  O.J. Simpson was accused of the double murder of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman.  The trial lasted for about 10 months and attracted worldwide attention.  The jury deliberated for about four and a half hours before acquitting Mr. Simpson on both counts.

39.  Julie Mertus, "State Discriminatory Family Law and Customary Abuses," in Wolper and Peters, supra note 6, 135, 140.

40.  Id.

41.  Id.

42.  Id. at 140-41.

43.  Id. at 140.

44.  Pub. L. No. 414, 66 Stat. 163, as amended (1952).

45.  Pub. L. No. 96-102, 94 Stat. 102 (1980).

46.  

The Attorney General shall be charged with the administration and enforcement of . . . all . . laws relating to the immigration and naturalization except [those] powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers[.]

8 U.S.C. § 1103(a) (1988).

47.  

[The Attorney General] may require or authorize any employee of the [Immigration and Naturalization] Service or the Department of Justice to perform or exercise any of the powers, privileges, or duties conferred or imposed by this chapter or regulations issued thereunder upon any other employees of the Service.

Id.  The Immigration and Naturalization Service is headed by a Commissioner who is appointed by the President and confirmed by the Senate.  Id. at § 1103(b).

He shall be charged with any and all responsibilities and authority in the administration of the Service and of this chapter which are conferred upon the Attorney General as may be delegated to him by the Attorney general or which may be prescribed by the Attorney General.

Id.

48.  8 C.F.R. § 208.3 (1995).  An applicant must also submit a biographical information form, fingerprints of himself and any member of his family 14 years of age or older and two passport photographs.  Id.

49.  8 C.F.R. § 208.9 (1995).

50.  8 C.F.R. § 208.14 (1995).  There are also certain situations that a hearing officer must deny asylum.  See id. at § 208.14(d).

51.  8 C.F.R. § 242.16 (1995).

52.  8 C.F.R. § 242.21 (1995).  The application for appeal must be made within 10 days of the rendering of the decision.  Id. at § 242.21(a).

53.  Fisher v. I.N.S., 79 F.3d 955, 958 (9th Cir. 1996).

54.  Id.

55.  Id.

56.  Id.

57.  Id.

58.  Id. at 959.

59.  Id.

60.  Id.

61.  Id.  What the "bathing suit" consisted of is not clear in the opinion.

62.  Id.

63.  Id.

64.  Id.

65.  Id.

66.  Id. at 960.

67.  Id.

68.  Id.

69.  Id.

70.  Id. (citation omitted).

71.  Id. at 965.

72.  In re Fauziya Kasinga, Interim Decision 3278, 1, 3 (BIA 1996).

73.  Id.

74.  Id.

75.  Id.

76.  Id.

77.  Id.

78.  Fauziya had an uncle, aunt, and cousin who lived in the United States.  Id.

79.  Id.

80.  Id.

81.  Kathryn M. Bockley, Comment, "A Historical Overview of Refugee Legislation:  The Deception of Foreign Policy in the Land of Promise," 21 N.C. J. Int'l L. & Com. Reg. 253, 278 (1995).

82.  Id. at 278 n.253 (citing Gil Loescher & John A. Scanlan, Calculated Kindness:  Refugees and American's Half-Open Door, 1945 to the Present 41 (1986)).

83.  Id. at 278-79.

84.  Department of Justice, Office of International Affairs, Considerations For Asylum Officers Adjudicating Asylum Claims From Women, May 26, 1995, at 1 (memo from Phyllis Coven, Office of International Affairs to All INS Asylum Office/rs and HQASM Coordinators) (hereinafter American Guidelines).

85.  Id. at 4.

86.  Id. at 4-5.

87.  For a detailed analysis on how the Canadian Guidelines can be used under American asylum law, see Kelson, supra note 1, at 282-297.  See also, Fox, supra note 22, (suggesting that the United States follow Canada's lead in adopting similar guidelines to protect women refugee claimants).

88.  Kelson, supra note 13, at 298.

89.  

1. The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined.

2. For the purpose of the present Protocol, the term "refugee" shall . . . mean any person within the definition of article 1 of the Convention as if the words "As a result of events occurring before 1 January 1951 and . . ." and the words " . . . as a result of such events", in article 1(A)(2) were omitted.

Protocol Relating to the Status of Refugees, Article 1(1)-(2).