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March 06, 2004


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

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

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.

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

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.

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.

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

"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.

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...

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