How Do The Courts See Sexual And Gender-Based Violence In The U.s. Asylum Context: Issues Of Judicial Ethics In The Fact-Finding And Decision-Making Process
Date of Award
Open Access Thesis
Master of Public Health (MPH)
School of Public Health
Background: There are many concerns regarding the U.S. asylum system, especially regarding how it views cases based on claims of sexual and gender-based violence. Wide discrepancies in decision-making in the various courts throughout the U.S. not solely attributed to the strength of the asylum case or the evidence presented leads to injustice for people seeking asylum.Methods: Precedential cases were selected and read in their entirety, grouped together by topic or executive branch era in which it occurred, and the types of evidence extracted and tallied. Categories for evidence were expert testimony, DOS reports, US agency reports, UN agency reports, and scholarly works. In each group of cases, I analyzed: (1) The state of precedent and decisions of each case, and the disparities in outcomes within each group of cases (2) Potential contributing factors to the disparities in outcomes (primarily the type and usage of evidence, gender of the judge, experience in immigration work) (3) The relationship of these factors to the ethical principles governing judicial practice as they relate to bias and competence Law/case review – discussion and analysis: The three case categories were: (1) Decisions regarding female genital mutilation (2) Decisions regarding domestic violence-based asylum claims, and (3) Domestic violence asylum claims under the shifting policies of the Trump and Biden administrations. In terms of gender bias, it was found that for all three case categories, a majority of the decisions were written by male judges. Bias based on political affiliation was considered primarily for the third case group, as it was found that shifting executive administrations likely influenced the decision-making. Competence had the most significant connection to the evidence presented in these claims. Based on a decision-maker’s previous experience and the types of evidence analyzed and incorporated into the decision, a relationship was found between these factors to the ethical principles governing judicial practice as they relate to bias and competence. Conclusion: To hold the U.S. asylum system and system of judicial reasoning accountable to ethics and to the promises of the international human rights law the U.S. has undertaken, it needs to be aligned with contemporary, evidence-based understandings of what bias and competence are. Whatever bias judges have that come with gender, political affiliation, or any other biases, and any lack of competence that is seen through incorporations or lack thereof of evidence, it is best overcome not by restricting the gender of decision-makers, but rather training them to overcome bias and increase competence.
Erfe, Francine Ruth, "How Do The Courts See Sexual And Gender-Based Violence In The U.s. Asylum Context: Issues Of Judicial Ethics In The Fact-Finding And Decision-Making Process" (2023). Public Health Theses. 2249.
This Article is Open Access
This is an Open Access Thesis.