Well founded fear

The central requirement for political asylum in the U.S. is to show that you cannot return to your country because of

"persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

Does anyone notice anything missing from that list? Anyone? Bueller?

(Sorry, I know guessing games are annoying but I wanted to see if it's an obvious omission to most people.) I'm talking about persecution on account of gender.

You might think gender was included in "particular social group". Lawyers have argued that it should be, and in England and several other countries they've succceeded. In the United States they have not. Gender by itself won't cut it; you have to find creative ways to combine it with, or sneak it into, another category: She will be persecuted because she belongs to the social group of women of tribe X who have not undergone genital mutilation and oppose the practice. She has been persecuted by her husband or father because of her religious beliefs about the proper role of a Muslim woman, and the role of individual conscience in religion, and the state will not protect her. She will be persecuted on account of political opinion--she opposes the Taliban because she believes in universal human rights, and counts women as humans.

In the Matter of R.A., part I
That gender alone will not do was made clear in the case of Rodi Alvarado, known to law students as R.A. The Board of Immigration Appeals gave an unflinching description of the abuse Ms. Alvarado had suffered from her husband in Guatemala, which included:

"He dislocated the respondent's jaw bone when her menstrual period was 15 days late. When she refused to abort her 3-to-4 month old fetus, he kicked her violently in the spine."
"The respondent's husband raped her repeatedly. He would beat her before and during the unwanted sex. When the respondent resisted, he would accuse her of seeing other men and threaten her with death. The rapes occurred 'almost daily', and they caused her severe pain."
"The respondent ran away to her brother's and parent's homes, but her husband always found her."
"One night, he woke the respondent, struck her face, whipped her with an electrical cord, pulled out a machete and threatened to deface her, to cut off her arms and legs, and leave her in a wheelchair if she ever tried to leave him."
"Once, he pistol-whipped her."
"The respondent's pleas to the Guateamalan police did not gain her protection....When the respondent appeared before a judge, he told her that he would not interfere in domestic disputes. Her husband told the respondent that, because of his former military service, calling the police would be futile.... "

I feel like it is emotional blackmail to even include those descriptions. But that is what happened; it is taken from the opinion of the judges who rejected her asylum claim. (Actually, it's only part of what happened--for the full description read pages 4-6 of the linked decision.) They took great pains to explain their sympathy for R.A. and their contempt for her husband, but ruled that "the solution to the respondent's plight does not lie in our asylum laws as they are currently formulated."

If her lawyers felt bitter that day, they could have summarized the whole thing in terms that would have been familiar to Ms. Alvarado: "this court does not interfere in domestic disputes."

In which I get on my high horse
You will suspect me of arguing based on emotion instead of reason. And it's true that reading this case, and others over the past few weeks, has made me feel more strongly about this issue. But I'm not the one making the logical error.

There is not much logical reason for excluding gender from the asylum categories. We treat it similarly to race, religion, nationality, etc. when we interpret the equal protection clause, and in our anti-discrimination laws. It is an immutable characteristic, and it is wrong to subject people to violence and imprisonment and death because of something they cannot change.

There is little question that Ms. Alvarado would have been granted asylum if she had been treated as she has because of race, or religion, and the state had refused to help her. Lynchings and pogroms are lynchings and pogroms, whether they are committed by government officials or private individuals, and whether they are committed by a solitary murderer or a mob with torches.

No, the basic policy argument against granting asylum based on gender is that oldy-but-goody, the slippery slope: Suddenly half the world is eligible for asylum--and if a private domestic violence case qualifies, so does a private murder case, and so does all the violence that accompanies a civil war. There is no end to it.

This is not true. Yes, the category of "women" includes half of humanity. But just about all of humanity has a race, and a religion, and a nationality, and a political opinion, and belongs to any number of social groups. And we are not overrun.

Showing that the applicant is female is not enough, of course. You also have to show that she was persecuted or will be persecuted (a much higher barrier than proving discrimination) and the state will not or cannot protect her. And--this is what distinguishes gender persecution cases from ordinary crimes, or civil wars--you have to show that this persecution, and/or the state's failure to protect, took place on account of her gender. (Not to mention that she has to get into the United States before she can even apply for asylum, which is not exactly easy to do.)

In the Matter of R.A., part II
Janet Reno overruled the decision, and told the INS to start working on a rule that made it clear that persecution on account of gender could be a grounds for asylum, and gave instructions as to when it would apply. The regulations were not finalized when Bush took office.

Last year, John Ashcroft decided to re-open the R.A. case and issue his own decision. Everyone assumed this meant that he would send her back to Guatemala, make it clear that persecution on account of gender was not grounds for asylum, and discourage immigration judges from letting tricksy lawyers sneak it in through the back door.

The last briefs were turned in a week or two ago. The most unexpected one came from the Department of Homeland Security, which asked Ashcroft to grant asylum. Rumors were that Ashcroft was going to issue the ruling any day now, and that he was writing it himself.

Now he's in the intensive care unit, with a case of acute pancreatitis. No, I'm not glad. No, I don't think it's a sign from above. But I wouldn't mind if he decided it was a sign from above. Failing that, I vaguely hope that it reminds him that justice and mercy are not necessarily contradictory goals. In this case, they point in the same direction.

Comments

[Skip Perry]

The first thing I thought was sexual orientation, but I guess that's just me. (Gender was #2.)

[Timmy the Wonder Dog]

Katherine a question on the legal term, persecution, what were the legal parameters of the word when the legislation was written?

[Katherine]

I don't know about when the legislation was written. Here is a useful line from a 2003, 3rd Circuit case called Ahmed v. Ashcroft:

Though the INA provides no definition of persecution, thiscourt has held that persecution connotes extreme behavior,including “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Id. at 1240. This definition does not include “all treatment that our society regards as unfair,unjust, or even unlawful or unconstitutional.

I don't think that definition has changed very much, but I'm not certain.

If you're making some sort of originalist argument, please note the following:
1) I don't care so much about who makes this decision. If Congress took more responsibility for decisions about immigration it would actually be a very good thing.
2)As it is, the statute delegates all sorts of authority to the Attorney General and the INS, and the courts have held that this delegation is constitutional--they generally let Congress delegate what it wants to, and they generally let Congress do whatever it wants in the area of immigration law. If you're arguing that it's "executive lawmaking" for Ashcroft to include gender you have to take away his authority to do many, many other things.
3) It's not the definition of persecution that matters for your purposes so much as the definition of "particular social group".
4) If you want to do historical research, the phrase originally comes from a 1951 treaty called the Refugee Convention which was adopted by the United States and written into statute in 1980. I'd guess you don't think we should look to foreign sources in making legal decisions, so 1980 is the date you want.
5) Skip, oddly enough they have interpreted "particular social group" to include sexual orientation. Which actually sets an interesting, but totally non-binding, precedent for the treatment of sexual interpretation under the equal protection clause.

[Katherine]

Oops. "Sexual interpretation" should be "sexual orientation", needless to say.

[Katherine]

Oh, and one more thought: "particular social group" is not defined in the statute either, nor is it defined in any dictionary. (Good luck looking up "particular", "social" and "group", deciding which of several definitions to use for each word, and combining them in a way that gives you an answer.) It's a ridiculously vague term, and leaves the attorney general, immigration service, and/or judges no choice but to nail down the precise definition through regulations or cases.

[Timmy the Wonder Dog]

Katherine, I was thinking of persecution in terms of the role of government or continued governmental failure. Using gender (or sexual orientation) as a metric, would depend on the status of the state of origin in question. Thus, you are forcing the executive to make a decision about the state as compared to an individual situation, hence my question.

[carpeicthus]

Thank you for this entry, Katherine. Well-written and important, and I can only hope that the DoJ makes the right decision.

[bob mcmanus]

"you have to show that this persecution, and/or the state's failure to protect, took place on account of her gender."

Agree. Great post, Katherine. I am not entirely sure where I come down on this in a general way.
But I have to wonder if a fear here is that a pattern of state-supported gender oppression will show up in cases, from, oh , Saudi Arabia, just to pick a country out of my hat . :)

And I don't know much, but I know enough to believe State's practices with Saudi cases have been consistently despicable.

[Jesurgislac]

Good post, and quite right - I'm afraid it had dropped out from under my radar, but I thought that the law had been changed to allow asylum from persecution on account of gender.

Should be interesting to see what happens to women refugees from Afghanistan and Iraq, if Iraq goes down Afghanistan's road...