By Professor Cesare Romano, Director, and Adjunct Professor Veronica Aragon, Deputy Director, International Human Rights Clinic, Loyola Law School, Los Angeles
Does domestic violence constitute valid ground to claim refugee status? Encouragingly, the answer is increasingly yes, and Loyola’s own International Human Rights Clinic (IHRC) is trying help moving international law in that direction.
In concert with human rights organization Asylum Access Ecuador (AAE), Loyola’s International Human Rights Clinic filed a case today before the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) seeking to recognize domestic violence as grounds for refugee status. It is one of the first cases of its kind to be brought before a United Nations body.
The case, regarding a Colombian woman who had been subjected to severe domestic violence and subsequently denied refugee status in Ecuador, argues that domestic violence should be grounds for refugee status under the 1951 Refugee Convention. It also aims to ensure that refugee status determination proceedings at the national level are non-discriminatory and gender-sensitive.
Ecuador has the largest number of refugees in South America. As of July 2014, the United Nations High Commission on Refugees (UNHCR) reported 123,133 refugees in Ecuador, of whom 98 percent were Colombian nationals. Eighty-eight percent of these Colombian refugees are women and their dependents.
Violence against women, and particularly domestic violence, is a world-wide plague, but one that is particularly severe in Colombia and Ecuador. Colombia women who are victims of domestic violence in Colombia are rarely, if ever, protected by authorities and prosecution of abusive spouses is extremely rare. Yet, despite the dire situation in Colombia and the need to escape it, the stigma felt by female Colombian refugees in Ecuador is rampant, leading to a re-victimization of this marginalized population.
Around the world, women’s claims to refugee status are often rejected and not properly assessed because many asylum systems continue to be gender-biased and treat the claims of women through the lens of male experiences. Colombian women seeking recognition of their refugee status by Ecuadorian authorities see their applications rejected due to deep-rooted gender discrimination and a lack of sensitivity to the problem of domestic violence.
The alleged victim, Mariela Cabrera Ponce, is a refugee who fled to Ecuador from Colombia after suffering years of severe domestic violence at the hands of her ex-husband. Finding no relief in Colombia, she sought refugee status in Ecuador. However, her case was repeatedly referred to as a “human drama” that was “abusive” of the Ecuadorian legal system. Plagued by mishandling, her case was eventually erroneously dismissed. Ecuador denied Ms. Cabrera Ponce’s refugee claim on the basis that the reasons she left her country were not envisaged in the 1951 Convention relating to the Status of Refugees as requiring international protection.
The 1951 Convention is the key legal document in defining who is a refugee, their rights and the legal obligations of states. According to Article I of the 1951 Convention (as amended by the 1967 Protocol), a refugee is defined as any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”
In this case, Loyola’s clinic argued that the victim is a refugee because: 1) she has a well-founded fear of being persecuted at the hands of her violent and abusive ex-husband based on a long history of abuse and threats which constituted past persecution; 2) the persecution is based on her membership in the particular social group defined as “Colombian women”; and 3) she is unable to return to Colombia, since it has failed – and will likely fail – to protect her from such persecution, an experience that is consistent with country conditions, where there is a general absence of state protection for victims of gender-based violence.
This progressive reading of the “particular social group” clause of the 1951 Refugee Convention is by no means novel, but it is something that needs to be reaffirmed by international human rights bodies. The UNHCR has recognized that a particular social group can be defined by the characteristic of gender alone, or by gender in combination with other characteristics. In fact, the UNHCR has explicitly recognized that women are a clear example of a social subset of the particular social group of sex, defined by innate and immutable characteristics and who are frequently treated differently than men, noting that their characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries. Defining “particular social group” by the characteristics of gender and nationality has been accepted, not only by UNHCR, but also recently in leading judicial decisions in the United States, Canada, Australia, and the United Kingdom, among others.
In fact, this case gives the CEDAW committee the perfect opportunity to expressly affirm this reading in light of its recently issued General Recommendation No. 32 -- on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women.
The communication to the CEDAW committee alleges that Ecuador by misconstruing its obligations under the 1951 Refugee Convention has failed to uphold its obligations under the CEDAW Convention to protect against gender discrimination. It also alleges that Ecuador has failed to eradicate such discrimination and traditional forms of gender bias from the public sphere. It seeks to have Ecuador establish gender-sensitive procedures and to train Ecuadorian officials on the nature of domestic violence as a form of gender-based violence that may rise to the level of gender-based persecution.
 U.S. Third Circuit Court of Appeals, Fatin v. Immigration and Naturalization Service (I.N.S.), 12 F.3d 1233, p. 1239-41 (Dec. 20, 1993) (involving an Iranian woman’s opposition to fundamentalist laws and oppressive gender-related practices, gender itself satisfied the definition of “particular social group”), available at: http://www.refworld.org/docid/3ae6b6d60.html (last accessed Dec. 21, 2014); U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals, Matter of A-R-C-G- et al., Respondents, 26 I&N Dec. 388 (BIA 2014) (Depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012)).
 Supreme Court of Canada, Canada (Attorney General) v. Ward, 2 S.C.R. 689, p. 739 (June 30, 1993) (clarifying that “groups defined by an innate or unchangeable characteristic […] would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation”), available at: http://www.refworld.org/docid/3ae6b673c.html (last accessed Dec. 21, 2014).
 Australia: Refugee Review Tribunal, RRT Case No. N94/06730, N94/06730, (Oct. 14, 1996), available at: http://www.refworld.org/docid/3ae6b67f30.html (last accessed Dec. 21, 2014).
 Writing separately, four of the five Lords ruled in favor of granting asylum, three favoring a broad, gender-defined formulation of the “particular social group” as “women in Pakistan,” determining that internal cohesiveness is not a requirement for the existence of a “particular social group,” and rejecting any formulation of “particular social group” that made the persecution feared an element of the definition of the group. Islam & Shah, , 2 All E.R. at 556 (Steyn, L.), 563 (Hoffmann, L.), 569 (Hope, L.), available at http://www.bailii.org/uk/cases/UKHL/1999/20.html (last accessed Jan. 10, 2015).