UNDERGRADUATE

Domestic Violence-Based Claims in Refugee Law
The majority of literature on the topic of refugee law
examines how gender-based violence is treated under
the process of granting refugee status; however, there
is little scholarship specifically analyzing domestic
violence-based asylum claims. Two main themes emerge
in the ways in which domestic violence-based claims are
looked at under refugee law: (1) current U.S. refugee law
has limited the protection of gender-based asylum claims
because the requirements to be considered for asylum
do not fully take into account gender-based violence as
a legitimate form of persecution or worthy of protection;
(2) immigration judges and asylum officers need more
guidance on how to approach gender-based violence
claims because there are not enough binding precedents
that could lead to the granting of asylum for such claims.
Both the first and second themes are examined in
Meghana Nayak’s book, Who is Worthy of Protection?
Gender-Based Asylum and U.S. Immigration Politics.
Nayak looks at the various ways that refugee law treats
gender-based violence asylum claims. She argues that
there are different types of violence that generate ideas of
who can be considered a “worthy victim,” or “expectations
about how asylum seekers should demonstrate their
credibility and the legitimacy of their claims” (Nayak 2015,
2). Nayak’s research uncovers the ways in which refugee
law limits the potential for gender-based asylum claims to
succeed. Her work gives us insight into how these different
framings help us understand how the U.S. exercises power
in the international world. Nayak’s work will be discussed
further in the next section.
In “The Politics of Domestic Violence-Based Asylum
Claims,” Joline Doedens argues that an individual’s
fundamental right to be free from persecution is not
fundamental in the current context of how asylum is
granted. Connecting to the first and second themes,
Doedens explains that domestic violence-based claims are
very difficult to win because claimants need to demonstrate
that “the feared or experienced persecution occurred on
account of either the individual applicant’s membership in
a particular social group, or an imputed political opinion
of opposition to female subjugation” (Doedens 2014, 112).
Doedens explains that claims for asylum based on race,
religion, political opinion, or nationality have less chances
of failing under the framework set by current refugee law
(Doedens 2014, 112). Doedens thus sheds light on how the
requirements in place for asylum limit the opportunities
for cases involving domestic violence to be granted
asylum because the law does not take into consideration
the causes and implications of gender-based violence.
Doedens’ and Nayak’s research also connects with Blaine
Bookey’s (2013) findings in “Domestic Violence as a Basis for
Asylum: An Analysis of 206 Case Outcomes in the United
States from 1994 to 2012.” Bookey analyzes 206 outcomes
in domestic violence asylum cases before the Board of
Immigration Appeals (BIA) and immigration courts from
December 1994 to May 2012. Bookey’s findings show that
although there have been great strides in the system to
recognize domestic violence-based claims for asylum, there
is still an absence of binding norms that make it difficult
for immigration judges to grant asylum for women who are
fleeing dangerous situations. Bookey’s research points out
how difficult refugee law makes it for domestic violence
survivors to be granted asylum in the U.S.
Similarly, in “Beyond Gender: State Failure to Protect
Domestic Violence Victims as a Basis for Granting
Refugee Status” Laura Adams (2002) looks at the debate
during the early 2000s on granting refugee status to
survivors of domestic violence. Her research sheds light
on how domestic violence has been argued to be a more
“personal” and “private” matter that has no connection to
the “public” and the state. This common understanding
of domestic violence affects how immigration judges see
domestic violence-based asylum claims when they do not
have many binding precedents to rely on. This insight
also goes back to Nayak’s analysis of the lack of focus on
gender in refugee law.
DEPAUL UNIVERSITY
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