Thursday, May 19, 2022
People fleeing gender-based violence in the home face an uphill battle when seeking asylum in the United States. Through the lens of public and private spheres, this Article explores the underutilized religion ground for asylum for cases involving gender-based violence in the home—i.e., the private sphere. This Article argues that if an individual imposes a patriarchal practice on an asylum seeker in the private sphere and justifies that practice using religion, the asylum seeker’s resistance to that practice should constitute religious expression.The religion ground protects individuals who are persecuted because of their religious beliefs and religious expression. It typically is invoked by individuals fearing persecution in the public sphere for activities such as proselytizing and communal worship, where proving the link—the nexus—between the persecution and the asylum seeker’s religious beliefs or expression is relatively straightforward. Asylum seekers infrequently invoke the religion ground for abuse in the private sphere, however, due to that nexus requirement. Nexus requires an asylum seeker to show that the persecution is on account of their protected characteristic, not the characteristic of the abuser. At first glance, claims involving gender-based violence in the private sphere seem to involve individuals imposing their religious beliefs on others, which generally would not qualify for asylum. Where an asylum seeker resists a patriarchal practice in the home that is justified by religion, that resistance should constitute a “private expression” of religion, regardless of whether the asylum seeker frames their resistance in religious terms. If the asylum seeker is harmed for their opposition to a patriarchal practice justified by religion, the persecution is on account of their religious views opposing those of the persecutor and thus satisfies the nexus requirement. This Article thereby reframes gender-based violence in the private sphere as gender-based religious persecution. While encouraging a broader interpretation of the religion ground to better protect individuals fleeing gender-based violence, this Article concludes with a caution against essentializing religion and attributing such violence to a religion wholesale.