In reaction to the government of China’s one-child policy, Congress amended the asylum law in 1996 so that “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.” In other words, a person who is or could be subject to a forced abortion or forced sterilization may be eligible for asylum in the United States.
While this law was created with China in mind, there is no requirement that asylum seekers fear persecution in that nation. Indeed, over the years, advocates (including yours truly) have tried to use this law to obtain protection for people from many different countries. A recent article by Karla Colley in the Columbia Human Rights Law Review sets forth the arguments for an expansive use of the forced abortion-forced sterilization basis for asylum. Due to the prevalence of these practices around the world, Ms. Colley concludes that “attorneys and physicians need to screen all female clients for involuntary sterilization during the intake process and the forensic medical evaluation.” I think she is exactly right. Women who have been victims of forced abortion or forced sterilization can use that as a basis for an asylum claim, and as advocates, we have a responsibility to pursue all avenues of relief for our clients. (more…)
Mother’s Day is coming up – on May 9, 2021. If you need a nice gift idea for the mother(s) in your life, and you’d like to support a worthy cause at the same time, check out this “gift of goodness” from AsylumWorks, a Washington, DC-area non-profit that provides support for asylum seekers while they wait for resolution of their cases.
AsylumWorks offers a host of services to asylum seekers (whether they are mothers or not), including help with employment, referrals for social services, legal assistance, trauma recovery, and housing and food needs. The organization also helps connect asylum seekers to the wider community and to each other. Through their Mother’s Day Campaign (which ends on April 30), you can send a tin of alfajores, delicious sandwich cookies filled with dulce de leche and rolled in coconut flakes to a mother in your life, or to an asylum-seeking mom. (more…)
We knew this was coming. On March 7, 2018, Attorney General Jeff Sessions announced plans to revisit a Board of Immigration Appeals (“BIA”) case called Matter of A-B-, 27 I&N Dec. 227 (BIA 2018), which granted asylum to a victim of domestic violence from El Salvador. Now, the Attorney General has reversed A-B- and issued a wide-ranging opinion that seeks to limit asylum for victims of domestic violence and other criminal activity.
Attorney General Jeff Sessions explains why asylum seekers are bad.
There is a lot to say about the AG’s decision, but here I want to focus on two issues: (1) Who is affected by the decision, and (2) Why the decision may not have the broad impact that the AG seems to have intended.
Matter of A-B- most immediately impacts victims of domestic violence. Since 1999, the law related to asylum for DV victims has been evolving. Different lawyers and government agencies have worked to crack open the door for such applicants. The end result of their efforts was Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which created a convoluted path for victims of DV to obtain asylum. I think it was fairly apparent that A-R-C-G- was a house of cards, waiting for a hostile Administration to knock it down. And in Matter of A-B-, Mr. Sessions has done just that–he has overturned nearly two decades of evolving precedent, and overruled A-R-C-G-.
How, exactly, Mr. Sessions has attempted to block DV asylum seekers is important. To win asylum, an applicant must not only show that she faces harm; she must demonstrate that the harm she faces is on account of a protected ground, such as race, religion, nationality, political opinion or particular social group (“PSG”). So if a persecutor wants to kill you in order to steal your money, that is usually not a basis for asylum. But if the persecutor wants to harm you because he does not like your political opinion, or race, or religion, or PSG, that can form the basis for an asylum claim. A-R-C-G- said that “married women in Guatemala who are unable to leave their relationship” can constitute a PSG, making such people potentially eligible for asylum (assuming they met a host of other requirements).
In A-B-, the Attorney General is saying that this PSG formulation was erroneous, and so victims of DV can no longer use it as a basis for asylum. Such victims can still attempt to win asylum based on other protected grounds (maybe they are a member of an acceptable PSG, for example, or maybe the persecutor seeks to harm them due to their religion or for some other “protected” reason). But the fact is, many of these (mostly) women will no longer qualify for asylum, and will be sent home to face whatever “vile abuse” (Jeff Sessions’s words) that is awaiting them.
The impact of A-B- is clearly meant to reach beyond the realm of DV asylum, but how it will be interpreted outside the immediate circumstances of the case is unclear (at least to me). For example, in the decision, Mr. Sessions writes, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Indeed, the decision makes multiple references to “gang violence,” but as far as I can tell, gang violence is not an issue in the case. This is strange, since normally, courts decide issues that are before them; not abstract issues that are obliquely related to the subject of the case.
So if they are presented with an asylum claim involving “gang violence,” how will Immigration Judges and Asylum Officers apply Matter of A-B-? It’s difficult to know. The AG’s vague pronouncements about “gang violence” are not easily translated into legal guidance for adjudicators. Of course, adjudicators who want to deny a case can find additional support for such a decision here, but those who want to grant a case are not blocked from doing so.
There’s also the more general issue of “persecution based on violent conduct of a private [as opposed to government] actor,” which could include harm against LGBT individuals, FGM, threats from terrorists groups, etc. The AG states that in such cases, an asylum applicant “must show more than difficulty controlling private behavior… The applicant must show that the government condoned the private actions or at least demonstrated a complete helplessness to protect the victims.” In other words, says the AG, “Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.” Maybe I’m missing something here, but this is the exact same legal standard we’ve had since the asylum statute was enacted. As I read Matter of A-B-, I don’t expect big changes for people seeking asylum based on sexual orientation or FGM, or those fleeing terrorists, even though these cases typically involve persecution by non-state actors.
In fact, though Matter of A-B- will block many DV victims from obtaining asylum, I am not sure that its effects will be broadly felt. Much of the decision is hyperbole without substance: “Generally,” asylum claims based on persecution by non-state actors will fail. Generalizations like this aren’t guidance for adjudicators; they are propaganda. And then there are helpful chestnuts like this:
Neither immigration judges nor the Board may avoid the rigorous analysis required in determining asylum claims, especially where victims of private violence claim persecution based on membership in a particular social group…. Furthermore, the Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.
In other words, adjudicators are supposed to follow the law. No duh.
I don’t know why the AG used Matter of A-B- to make a broad statement against people fleeing violence from non-state actors (as opposed to limiting his ruling to the facts of the case). But the decision’s platitudes and generalizations are not conducive to the type of legal precedent that can guide decision makers.
Perhaps Mr. Sessions hopes that his anti-asylum rhetoric and exhortations to “follow the law” will set the tone for adjudicators at the Immigration Courts and Asylum Offices. Maybe he believes that his disdain for immigrants can somehow be transmitted through the bureaucracy to the men and women deciding cases. But in my experience, IJs and Asylum Officers are not lemmings who exist to do the AG’s bidding. They are adjudicators empowered to interpret the law.
After Matter of A-B-, some applicants will have a tougher time obtaining asylum; others will be unaffected. In a strange sense, this decision gives me hope. If this is the best Mr. Sessions can do, it is not enough to end asylum as we know it. Thanks to Mr. Sessions, many domestic violence victims will be returned to face harm, but our country will continue to offer protection to many others. For that, I am thankful.
In a recent decision, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA held that “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group (“PSG”) for purposes of asylum. The decision is significant because it marks the first time that the Board has published a decision essentially endorsing asylum for victims of domestic violence. Applicants who seek asylum under this standard will still need to prove that the level of harm they face constitutes persecution, that they cannot relocate somewhere else within their country, and that their government is unable or unwilling to protect them.
This decision on PSG has been a long time coming, but–at least in my opinion–it does not go far enough.
Guatemalan Women celebrate their new particular social group.
In 2004, in a case called Matter of R-A-, DHS acknowledged that domestic violence could form the basis for an asylum claim. In that case, DHS argued in a brief that R-A- should receive asylum based on domestic violence. In its brief, DHS defined the PSG as “married women in Guatemala who are unable to leave their relationship.” Sound familiar? And that was 10 years ago.
Matter of R-A- never resulted in a published BIA decision (though R-A- herself received asylum in 2009). Since the brief was made public in 2004, asylum attorneys have relied on it to advocate for their clients, presumably with some success (since there is no data on the number of cases granted based on domestic violence, it is impossible to know for sure).
To me, the PSG “married women in Guatemala who are unable to leave their relationship” is awkward and contrived. Moreover, to receive asylum based on a PSG, the applicant must show that she was persecuted “on account of” her membership in the PSG. In other words, the persecutor harmed the applicant because she is a member of the PSG. I am not convinced that the husband was harming A-R-C-G- because she was a married woman who was unable to leave the relationship. He would have harmed her whether or not she was married and whether or not she was able to leave the relationship. The husband may have had access to A-R-C-G- because he was married to her and because she was unable to leave, but he was not motivated to harm her for those reasons.
It seems to me that there is a simpler, more elegant PSG that would have been appropriate for this case: “Women.” I suspect that I am not alone in this opinion. In amici curiae briefs, counsels for the American Immigration Lawyers Association, the UN High Commissioner for Refugees, and the Center for Gender & Refugee Studies argued that gender alone should be enough to constitute a PSG. Also, at least one federal circuit court (you guessed it – the Ninth) has held that “women in Guatemala” might constitute a particular social group.
“Women” makes sense as the PSG in this case. The evidence in the case suggests that the husband would have persecuted any woman who he was with–whether or not she was married or able to leave him. Further, country condition evidence from Guatemala makes clear that women in that country live in dire circumstances. In its decision, the Board notes that Guatemala “has a culture of ‘machismo and family violence,'” including sexual offenses and spousal rape. The victims of this violence are, for the most part, women. And, by the way, they are not just “Guatemalan women.” I imagine that if a Salvadoran woman, or a Nicaraguan woman, or a Japanese woman lived in Guatemala and integrated into the society, she would face the same problems as a Guatemalan woman. For this reason, the PSG should be “women,” as opposed to “Guatemalan women.”
But the BIA was not willing to go that far. After noting that counsel for Amici argued in favor of gender alone as the PSG, the Board held, “Since the respondent’s membership in a particular social group is established under the aforementioned group, we need not reach this issue.”
Perhaps that is the way of things. It’s best not to push the law too far, even if it makes logical sense, and even where it would protect additional people. A decision granting asylum to women (or men) who face persecution solely because of their gender would likely open the door to many more asylum seekers. Given the current state of affairs in the asylum world–the border crisis, partisan scrutiny from Congress, the backlog–maybe it’s best not to open the door too far. Maybe a relatively limited decision like Matter of A-R-C-G- is the best we could have hoped for.
I don’t mean to minimize the importance of A-R-C-G-. It is obviously a great win for the alien in that case (though the decision does not finally grant her asylum, it seems very likely that that will be the end result), and it will certainly help many women who face harm from domestic abusers. However, the decision codifies a landscape where women–many without the resources available to people like A-R-C-G- and R-A—will be forced to articulate complicated PSGs and demonstrate that they are members of those PSGs. I am not sure how many poor refugee women will actually be able to do all that.
A-R-C-G- was persecuted because she was a woman. Not because she was a Guatemalan woman, not because she was married, and not because she was unable to leave her husband. Matter of A-R-C-G- is an important step towards protecting women victims of domestic violence. Maybe next time, the BIA will take a giant leap.
A proposed amendment to the Senate Immigration Bill would reserve 30,000 green cards for people in jobs traditionally held by women, such as nannies, home health-care workers, and early childhood educators. The amendment is sponsored by 12 of the 20 women in the U.S. Senate.
According to the Washington Post, the “lawmakers say pending immigration legislation is unfairly weighted toward male workers because it rewards applicants who are better educated and have more technical skills.”
You’re in
While I agree that the immigration system has been skewed in favor of male immigrants, I am not sure that this is the best way to help female immigrants. Either we need high skilled workers in our economy or we don’t; either we need more nannies in our economy or we don’t. Why not set the number of visas for each category based on the needs of our economy, and then reserve a certain percentage (say 50%) of visas for women. Is this discriminatory? Yes, but Congress has the power to discriminate when it comes to immigration law, and if the idea is to help women and aid our economy, then this would be one way to achieve that goal.
If members of the Senate are inclined to help women immigrants, I have another idea: Do something to rectify the male-centric asylum law.
Modern U.S. asylum law is based on a definition of “refugee” that was codified in the 1950’s. The types of people seeking asylum in those days were mostly men–political activists fleeing persecution, for example–and this is what the law reflects. Gender violence was not part of the equation, and the statute (INA § 101(a)(42)) did not (and does not) protect victims of domestic violence, female genital mutilation, forced marriage or sexual assault.
The last legislative change to the definition of refugee occurred in 1996 when Congress made forced abortion and forced family planning a basis for refugee status. My impression is that this amendment had more to do with domestic politics (showing fealty to pro-life voters and sticking it to the Chinese Communists) than to helping women, but nevertheless, many women (and men) have benefited from the change.
You’re out
Other pro-women changes to the law in recent decades have been driven by lawyer advocates. As a result of these changes, it is now possible for victims of FGM and forced marriage to receive asylum. Victims of domestic violence can also sometimes receive asylum. But if Congress is planning to amend the immigration law, and if the Senate wants to help women, why not do something to codify and protect these advances?
In addition, I would hope that the pro-women Senators would support the elimination of the one-year asylum filing deadline (aliens who fail to file for asylum within one year of arrival in the United States are ineligible for asylum). A study from Temple University and Georgetown (my two alma maters!) has shown that female asylum seekers are 50% more likely to file for asylum three years or more after arrival. In an excellent piece on this point, Elisa Massimino of Human Rights First explains that one reason for the delay is the shame many women feel when they have to publicly describe their persecution. This jibes with my experience–many of my female clients filed late because of shame, depression, ignorance about the asylum system (and whether the persecution they face would qualify them for protection), and what might be called “conditioned subservience.”
I agree with the Senators who believe that something needs to be done to help female immigrants. Helping women who face persecution–and who are currently falling through the cracks of our asylum system–would be an excellent place to begin.
In 2010, the United Kingdom created an “Action Plan” and committed to “make the asylum system as gender-sensitive as possible so that women and girls who have been persecuted through violence and/or discrimination can have every opportunity to make their case and to have their asylum application considered as fairly as possible.” Now, a new report from Asylum Aid, titled “I feel like as a woman I’m not welcome,” provides a comprehensive gender-based analysis of the “law, policy, and practice” of the UK asylum system.
One way to avoid the problem of gender discrimination when seeking asylum.
The report basically finds that the UK is not doing enough to help female asylum seekers: “[D]espite numerous domestic commitments to improve the gender-sensitivity of the asylum system, the government’s repeated refusals to sign up to binding European legal standards makes it more difficult for women asylum seekers to enforce their rights in the UK.” Also, “there is very little consideration of gender in existing legislation” and the phrase “particular social group” is not being interpreted in a “gender-sensitive manner.”
The report also criticizes the UK Border Agency for its failure “to provide sufficient, timely, and understandable gender relevant information to asylum seekers.” As a result, asylum seekers often do not know that certain facts are relevant to their claim. Female asylum seekers interviewed for the report described their interviews with the Border Agency as “very traumatic” and gave examples of being asked inappropriate questions.
The report concludes, “It is hoped that by providing a broad overview of the UK asylum system from a gender perspective, this report will assist policy and decision-makers in thinking strategically about how to improve the gender-sensitivity of the system.”
It seems to me that the basic problem is that international law is not designed with the problems of women in mind. As the report notes, while woman face the same types of harm as men, they are also subjected to harm which is gender-specific, including female genital mutilation, forced marriage, forced sterilization, forced abortion, domestic violence, and rape. These types of harm are not covered by the Refugee Convention. Until the law is changed to reflect the specific types of harm that many women face, female asylum seekers will continue to face difficulties.
A recent posting on the blog Women and Foreign Policy by Carol Bohmer and Amy Shuman argues that “cultural, social and political attitudes and expectations can affect how a woman’s claim for asylum is evaluated by the authorities” and that such claims are treated “differently” and “less well” by those asylum authorities:
Most of the ways that the political asylum treats women differently are not articulated in policy but rather are implicit in the hearing processes, especially notable in explanations for denials of asylum. In our work, we have categorized these as 1) how credibility is tied to gendered practices in the asylum hearings themselves, especially expectations of women’s demeanor; 2) gendered expectations about the content of women’s accounts of the violence and persecution they have experienced; 3) more general discrimination against women applicants, who are not taken seriously or whose legitimacy depends on additional requirements; and 4) evaluation of women’s political action is sometimes regarded as either not political enough or as belonging to such a general category that granting political asylum would “open the floodgates” to too many individuals.
My initial reaction to the claim that women and men are treated differently by Asylum Officers and Immigration Judges is one of skepticism. For one thing, a good proportion of IJs, DHS Trial Attorneys, and Asylum Officers are women. Not that one woman cannot discriminate against another, but we’re not talking about Phyllis Schlafly here–most of the women working in the system are very progressive on women’s issues. Second, at least in my experience, the people involved in the system strive to apply the law equally and objectively, and tend to be cognizant of issues affecting women and girls. Finally, in some ways, women are treated better by “the system” in that certain categories of relief exist specifically to protect women (female genital mutilation as persecution); other categories are used more frequently by women than by men (domestic violence, forced marriage, and human trafficking as persecution).
Future asylum adjudicators?
On the other hand, of the 40 or 45 asylum seekers I represented in 2010 and 2011, I lost five cases: four of them were women and the fifth was a gay man. I had not really thought about this before, but it is surprising that 80% of the denied cases involved female asylum seekers. I am still not convinced that gender played a role in these defeats, but I suppose my mini cohort provides some anecdotal support for Ms. Bohmer and Ms. Shuman’s thesis.
With regard to the legal grounds for claiming asylum, Ms. Bohmer and Ms. Shuman make an important point:
When asylum officials reject a case, they are not necessarily saying that someone didn’t suffer a trauma…. Instead, when, for example, they deny a case about rape or domestic violence because the rape or violence was not political and/or because the woman was not persecuted as a member of a targeted social group, they are saying that the catastrophe, the trauma, the violence was part of another realm, crime, ordinary everyday crime, rather than political persecution. Women, as people seen to occupy ordinary, domestic life, rather than political (public) life, are more likely to be the victims of crime.
This seems to me an important and often overlooked point–asylum was created to provide protection to people in the public sphere. Such people tend to be men (though this is slowly changing). Asylum was not designed to protect people who face persecution in the private sphere. The recent efforts to expand the definition of asylum to include victims of FGM, domestic violence, forced marriage, and human trafficking are aimed at broadening the definition of asylum to include persecution that occurs in the private realm. These efforts have generally involved litigation, not legislation. It seems too bad that international legislative bodies and the U.S. Congress have not done more to protect people (women) who face these types of non-public persecution. Perhaps the study by Ms. Bohmer and Ms. Shuman will help move the law in a direction that is more protective of female asylum seekers.
