CHAPTER 15:
CHAPTER 15: REFUGEE AND ASYLUM LAW; JURISPRUDENCE OF HUMAN
RIGHTS; CULTURAL RELATIVISM[1]
A. Introduction 2
B. Questions 3
C. Introduction to Refugee Law 8
1. Definition of Refugee 8
2. Interpreting the Refugee Definition: Exactly
What is a Well-Founded Fear of Persecution? 12
UNHCR Handbook 13
3. Procedural Issues: Claiming Refugee Status 18
Deborah Anker, The Law of Asylum in the U.S. 18
Asylum and Withholding of Removal 20
Torture Convention relief 22
4. Alternate Forms of Relief and Other Procedural Issues 23
D. The Role of the UNHCR 26
1. Purpose, Function, and Responsibility 26
Statute of the Office of the UNHCR 26
Amnesty International, Refugee Protection is Human Rights Protection 27
2. Participation in U.S. Asylum Proceedings 31
Letter from UNHCR Associate Legal Counselor 31
E. Gender-Based Refugee Claims 32
1. Is Violence Against Women Persecution? 32
In re Matter of Kasinga 34
In re Matter of Quist 40
2. Internal Flight 56
F. Obstacles to FGM- and Spousal Violence-Based Asylum Claims 58
1. Cultural Relativism 58
Katherine Brennan, The Influence of Cultural Relativism 58
Richard A. Shweder, “What about Female Genital Mutilation?”
And Why Understanding Culture Matters in the First Place 60
Radhika Coomaraswamy, Identity Within: Cultural Relativism,
Minority Rights And The Empowerment Of Women 62
Michel Rosenfeld, Can Human Rights Bridge The Gap
Between Universalism And Cultural Relativism? 64
2. Theoretical Foundations of Human Rights 68
Hilary Charlesworth et al., Feminist Approaches to International Law 68
A. INTRODUCTION
In 2005, there were 8.4 million refugees in the world plus nearly 800,000 asylum seekers, down from a high of 18.3 million in 1992 but five times more than there were at midcentury.[2] In addition, the United Nations High Commissioner of Refugees (“UNHCR”) estimates that worldwide there were 6.6 million internally displaced persons (persons who have fled from persecution, violence or natural disaster but who have not crossed an international boundary). The total number of persons of concern to UNHCR (refugees, asylum seekers, IDP’s and others) was 20.8 million.[3] Most refugee flows and internal displacements are caused by human rights abuses, including those associated with armed conflict, and they are found in all regions of the world.
There are three durable solutions for refugees: repatriation to the country of origin, settlement in the country of first asylum, or resettlement in a third country. This chapter focuses on persons who seek refuge in the U.S. and discusses the applicable U.S. and international law. The problem involves a Ghanaian woman seeking relief from her own and her daughter’s removal from the United States. Legal and policy questions concerning the definition of who is a refugee are explored as well as issues concerning persecution by non-state actors and the treatment of gender-based violence in international law.
B. QUESTIONS
1. The Problem: Awata’s Case.
On June 30, 2006, a 25-year-old woman from Ghana, Awata, along with her infant daughter Kaya were apprehended by the U.S. Citizenship and Immigration Services (CIS) for residing in the U.S. without a valid visa. An Immigration Judge issued a Notice to Appear (NTA) for a removal hearing. At the removal hearing on July 30, 2006, Awata and her daughter conceded removability and asserted a claim for asylum based upon Awata’s claim of past persecution and their mutual claim of fear of future persecution. They also asserted a claim for withholding of removal and a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The evidence established the following facts:
Awata is a member of the Kussasi ethnic group of the Upper East Region of Ghana. She came to the U.S. on August 1, 2005, on a valid U.S. student visa that expired on May 31, 2006. In May 2006 she completed a two-semester masters program at the University of Minnesota.
Awata has not returned to Ghana with Kaya because of fear that her daughter, who was born in Ghana, would be subjected to female genital mutilation (FGM) in that country. Awata herself was subjected to FGM by her family prior to her marriage.
When she was 17 years old, Awata was married to Johannes under traditional law. Johannes has remained in Ghana while Awata was in the United States. Before she left, he physically abused her repeatedly, causing injuries that required emergency medical care on several occasions. Awata contacted police twice seeking protection from Johannes after an assault. The first time they came to her home, but left without taking any action, telling her that it was a “domestic” problem and not police business. The second time Awata contacted the police they did not come at all. She asked her family for assistance as well, but they refused to help or shelter her. At the time of the marriage, Johannes and his family paid a bride price in exchange for Awata and her family fears that he will demand that it be refunded if Awata leaves him. Awata’s family has expended the bride price and has no funds with which to repay Johannes. In addition to her fear of FGM and the anger of her family, Awata’s fear of being abused by Johannes again is a primary reason she does not want to return to Ghana.
Ghana is a country of 239,460 sq. km. (about the size of the State of Oregon) with 10 administrative regions. It has a population of 22 million, equally divided between men and women. The population is white and other, 1.5%, and black Africans, 98.5%. The religious makeup of the population is Christian, 63%, Muslim, 16% and indigenous religions, 21%.[4]
2. Violence against women in Ghana[5]
As of the beginning of 2006, an Amnesty International report found that violence against women in Ghana “continued to be widespread, with violence in the family thought to affect one in three women,”[6] According to the U.S. Department of State, most abuses went unreported, and seldom came before the courts. Unless specifically requested by the police service’s Women and Juvenile Unit (WAJU), police tended not to intervene in domestic disputes.[7]
Prosecution of domestic violence cases remains difficult. On average, of the cases prosecuted, approximately one-quarter received convictions. Many victims did not have access to appropriate medical assistance to record the abuse, which hampered prosecution efforts.
In 2002, Ghana’s Attorney General’s office drafted a domestic violence bill which contained a controversial provision that repeals a section of criminal code justifying the use of force within marriage. Some opposed the provision as contrary to tradition and destructive to the institution of marriage. NGOs joined to form the National Coalition on Domestic Violence Legislation and worked with government officials to hold numerous workshops to educate citizens on the contents of the bill. The bill, however, was never adopted.
Violence against women continues to be a worldwide problem. The United Nations Population Fund reports that, “[d]omestic violence is the most common form of gender-based violence. In every country where reliable, large-scale studies have been conducted, between 10 and 69 per cent of women report they have been physically abused by an intimate partner in their lifetime.”[8]
3. FGM in Ghana[9]
FGM continues to be a serious problem in Ghana. The form of FGM most commonly practiced in Ghana is Type II (commonly referred to as excision). Other forms, such as Type I (commonly referred to as clitoridectomy) and Type III (commonly referred to as infibulation) are also practiced. The extent of the practice in Ghana as a whole is limited.
The practice among some groups in Ghana appears to have few spiritual roots. It is not perpetuated by religion, but rather by traditional tribal beliefs. Some believe it leads to cleanliness and fidelity of the woman, or that it will increase fertility and prevent the death of first-born babies. Uncircumcised women are regarded by some as unclean, less attractive, and less desirable for marriage. FGM is also seen as a way to suppress a woman’s sexual desires and make her less promiscuous. Soothsayers in Animist religions often condone the practice.
A 1998 study estimated that between 9 and 12 percent of women have undergone FGM, but some estimates were as high as 30 percent. A Ministry of Health survey conducted between 1995 and 1998 found that FGM was practiced among nearly all the northern sector ethnic groups (including the Kussasi ethnic group), up to 86 percent in rural parts of the Upper West and Upper East Regions. Often it was performed on girls under the age of 15. In 2004 an NGO in the Northern Region reported that mothers frequently failed to return to the hospitals where they delivered their babies for immunizations and to attend postnatal clinics, allegedly because they did not want the hospitals to discover that they were engaging in FGM. In the southern part of Ghana FGM is practiced principally among migrants from the Northern parts of Ghana as well as from neighboring countries in the North.
Officials at all levels have spoken against the practice, and local NGOs made some inroads through their educational campaigns to encourage abandonment of FGM and to retrain practitioners. Traditional chiefs became more outspoken in their opposition to FGM.
In 1994, Ghana’s Parliament amended the Criminal Code of 1960 to include the offense of FGM, which states:
(1) Whoever excises, infibulates or otherwise mutilates the whole or any part of the labia minora, labia majora and the clitoris of another person commits an offense and shall be guilty of a second degree felony and liable on conviction to imprisonment of not less than three years.
1. For the purposes of this section “excise” means to remove the prepuce, the clitoris and all or part of the labia minora; “infibulate” includes excision (Type II) and the additional removal of the labia majora.
As of 2006, the Government of Ghana has signed but not ratified the African Union's Maputo Protocol calling for an end to genital mutilation.[10]
4. Health Consequences of FGM
According to the World Health Organization, the “immediate and long-term health consequences of female genital mutilation vary according to the type and severity of the procedure performed. Immediate complications include severe pain, shock, haemorrhage, urine retention, ulceration of the genital region and injury to adjacent tissue. Haemorrhage and infection can cause death. . . . Long-term consequences include cysts and abscesses, keloid scar formation, damage to the urethra resulting in urinary incontinence, dyspareunia (painful sexual intercourse) and sexual dysfunction and difficulties with childbirth.” [11]
It has been argued that the term “female genital mutilation” should not be employed due to perceived negative implications from the word “mutilation.” Instead, the terms “female circumcision” and “female genital cutting” (FGC) have been offered as less politically charged alternatives. The more objective terms “circumcision” and “cutting,” it is contended, indicate a neutral moral stance on the practice, while the more subjective “mutilation,” might imply a value judgment.[12] Despite these objections, the term FGM is most commonly used and is used in this chapter.
5. Questions
a. Do Awata and her daughter qualify for relief from removal? Do Awata and her daughter have a well-founded fear of persecution? Does Awata’s subjection to FGM constitute past persecution entitling her to a discretionary grant of asylum? Does Awata’s abuse at the hands of her husband constitute past persecution?
b. Do Awata and Kaya fear persecution because they are members of a social group, or on grounds of political opinion or religion?
c. Does it matter that the persecution is not inflicted by agents of the government? What are the international and U.S. standards concerning persecution by non-state actors? What must Awata and Kaya prove regarding the policies and actions/inactions of Ghana’s Government? Is the persecution on account of any one or more of the five permissible criteria?
d. Is it relevant that domestic violence occurs frequently in the U.S. and victims here are often without adequate protection? Will the claim concerning FGM be treated differently than the claim of spousal abuse? Are domestic violence claims as inherently gender-based as claims based on FGM?
e. As to withholding of removal, is there a “clear probability” that Awata will be persecuted if she is removed to Ghana? That Kaya will be persecuted?
f. As to asylum, what further showing must Awata make for herself and her daughter?
g. If Awata qualifies for both asylum and withholding of removal, which alternative is preferable? Which provides Awata and her daughter with the most protection?
h. As to withholding of removal, is there a “clear probability” that Awata will be persecuted if she is removed to Ghana? That Kaya will be persecuted?
i. How might you counter the argument that FGM is not persecution because it is not a country-wide practice? Should Awata and Kaya have to relocate within Ghana?
j. What review is available to Awata if the judge denies her claims for asylum and withholding of removal?
k.. How might UNHCR assist you in the case before the judge and during appeals?
l.. What obstacles confront your argument that FGM and domestic abuse constitute persecution?
i. What is the link between FGM as a human rights violation and FGM as persecution?
ii. Is it clear that Ghana has a responsibility to prohibit FGM and to enforce the prohibition against domestic violence?
iii. Should the international community expect countries with varying civil, political, economic, social, and cultural traditions to respect human rights standards in the same ways? Is there room for diversity? What should happen to persons from those cultures who flee those distinct values and practices, like Awata?
iv. While FGM occurs in a relatively small number of countries, spousal abuse is a worldwide phenomenon. How do the differences between these two components of Awata’s claim affect the likelihood of its success?
v. Is the problem of cultural relativism in chapter 4, supra, distinguishable from the situation presented in this chapter?
m. Would you advise Awata to make a claim for herself and her daughter for withholding of removal under the Convention Against Torture? What is the significance of the fact that the perpetrator of the potential harm is a non-state actor?
C. Introduction to Refugee Law
1. Definition of Refugee
Article 1A(2) of the Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 [hereinafter Refugee Convention, as amended by the 1967 Refugee Protocol] defines a “refugee”:
As any person who . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The U.S. defines a refugee, in part, as:
any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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. . . .
8 U.S.C. § 1101(a)(42). Note that this definition permits refugee status based upon past persecution alternatively to a well-founded fear of future persecution. The definition appears in the Refugee Act of 1980, which was enacted to bring the U.S. into compliance with the U.N. Protocol of 1967 Relating to the Status of Refugees, 606 U.N.T.S. 267 [hereinafter 1967 Refugee Protocol]. The U.S. ratified the Protocol (and by incorporation the Convention) on November 1, 1968.[13] The implementing legislation was not adopted until 12 years later in the Refugee Act of 1980.[14]
The texts of the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees are provided (Selected Instruments at 107-22). As of March 1, 2006, 146 states had ratified either the 1951 Convention on the Status of Refugees or the 1967 Protocol Relating to the Status of Refugees, or both.[15]
INS v. Cardoza-Fonseca, 480 U.S. 421, 437 (1987), held that the statutory definition should be interpreted by reference to corresponding U.N. instruments. The Supreme Court concluded that an applicant for asylum must demonstrate “a well-founded fear of persecution.” Cardoza-Fonseca, 480 U.S. at 430, 449. In contrast, to prove a claim for withholding of deportation (now “withholding of removal”), an applicant must demonstrate a “clear probability of persecution” after deportation (“removal”). Id. at 430. The Court summarized the distinctions between the procedures:
First, as we have mentioned, there is no entitlement to asylum, it is only granted to eligible refugees pursuant to the Attorney General’s discretion. Once granted, however, asylum affords broader benefits. As the [Board of Immigration Appeals (BIA)] explained in the context of an applicant from Afghanistan who was granted § 243(h) relief [(i.e. withholding of deportation)] but was denied asylum: “Section 243(h) relief is ‘country specific’ and accordingly, the applicant here would be presently protected from deportation to Afghanistan pursuant to section 243(h). But that section would not prevent his exclusion and deportation to Pakistan or any other hospitable country . . . if that country will accept him. In contrast, asylum is a greater form of relief. When granted asylum the alien may be eligible for adjustment of status to that of a lawful permanent resident . . . after residing here one year, subject to numerical limitations and the applicable regulations.”
Id. at 428-29 n.6 (structure altered).
In 1996 the U.S. statutory definition of refugee was amended to define opposition to coercive family planning as political opinion, to define past persecution to include forced abortion or sterilization or punishment for failure or refusal to undergo such procedures, and to define fear of being forced to undergo such a procedure or punishment for refusing to undergo such a procedure as future persecution.[16]
The North Korea Human Rights Act of 2004 provided that North Koreans may not be denied refugee status or asylum in the U.S. on the ground that they are eligible for citizenship in South Korea. The Act also required the Secretary of State to report to the Congress within 120 days after enactment regarding an assessment as to whether North Koreans have unobstructed access to U.S. refugee and asylum processing.[17]
Since its adoption, the Refugee Act of 1980, consistent with the Convention Regarding Refugees, has stated,
The term ‘refugee’ does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42).
Form I-589 (Application for Asylum) and other immigration forms are available on the web; as well as immigration statutes, regulations and decisions by the Board of Immigration Appeals (BIA).[18]
Much of U.S. case law regarding asylum comes from federal courts of appeals, which have jurisdiction over appeals from the BIA. The Ninth Circuit Court of Appeals hears the largest number of asylum cases, and has taken the highly unusual step of publishing a summary of its own asylum cases.[19]
Since the September 11, 2001, attacks, almost all the Attorney General’s immigration responsibilities have been transferred to the Secretary for Homeland Security. The U.S. and other governments have modified asylum procedures with the stated purpose of preventing would-be terrorists from entering countries that might be targets for terrorists. How these competing interests will be resolved is not yet certain.[20]
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NOTES AND QUESTIONS
1. Think about the different standards of eligibility for asylum and for withholding of removal (previously “withholding of deportation”). Which is more difficult to prove? Which status affords greater protection? Does your conclusion seem anomalous? Does the fact that granting asylum is discretionary explain the anomaly?
2. For additional reading, see:
Jessica B. Cooper, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. Env. L.J. 480 (1998);
Erika Feller & Volker Türk, Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003);
Bill Frelick, Refugee Rights: The New Frontier of Human Rights Protection, 4 Buff. Hum. Rts. L. Rev. 261 (1998);
Pamela Goldberg, Analytical Approaches in Search of Consistent Application: A Comparative Analysis of the Second Circuit Decisions Addressing Gender in the Asylum Law Context, 66 Brooklyn L. Rev. 309 (2000);
Guy S. Goodwin-Gill, The International Protection of Refugees: What Future?, 12 Int’l J. Ref. L. 1 (2000);
Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law (3d ed. 2007);
James C. Hathaway, The Rights of Refugees under International Law (2005);
Atle Grahl-Madsen, The Status of Refugees in International Law (1966);
Patricia Hyndman, The 1951 Convention and its Implications for Procedural Questions, 6 Int’l J. Refugee Law 245 (1994);
Susan Kneebone, The Refugees Convention 50 Years On: Globalisation and International Law (2003);
Pirkko Kourula, Broadening the Edges: Refugee Definition and International Protection Revisited (1997);
Hélène Lambert, Seeking Asylum: Comparative Law and Practice in Selected European Countries (1995);
James A. Lazarus, In Through the Side Door: Analyzing In Re Anikwata Under U.S. Asylum Law and the Torture Convention, 32 Case W. Res. J. Int’l L. 101 (2000);
The Michigan Guidelines on Well-Founded Fear, 26 Mich. J. Int’l L. 492 (2005);
Gerald Neuman, Refugee Law in North America after September 11, 36 Col. Hum. Rts. L. Rev. 287 (2005);
Michael J. Parrish, Redefining the Refugee: The Universal Declaration of Human Rights as a Basis for Refugee Protection, 22 Cardozo L. Rev. 223 (2000);
Nehemiah Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation (1953);
Andrew I. Schoenholtz, Refugee Protection in the United States Post-September 11, 36 Col. Hum. Rts. L. Rev. 323 (2005);
UNHCR, Collection of International Instruments Concerning Refugees (1990);
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, U.N. Doc. HCR/IP/4/Eng. Rev.1 (1988);
Kristen Walker, Defending the 1951 Convention Definition of Refugee, 17 Geo. Immigr. L.J. 583 (2003);
Paul Weis, Commentary on the Convention Relating to the Status of Refugees (1992).
Displaced Peoples and Refugee Studies (Julian Davies, ed., 1990);
2. Interpreting the Refugee Definition: Exactly What Is a Well-Founded Fear of Persecution?
In its Handbook on Procedures and Criteria for Determining Refugee Status, the Office of the U.N. High Commissioner for Refugees (UNHCR) interprets the phrase “well founded fear of being persecuted”; and its interpretations “provide[] significant guidance in construing the [Refugee] Protocol, to which Congress sought to conform” when it enacted the Refugee Act of 1980. Cardoza-Fonseca, 480 U.S. at 439 n.22.[21]
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status 11-17, U.N. Doc. HCR/IP/4/Eng. Rev.1 (1992) [hereinafter UNHCR Handbook] (paragraph numbers omitted):[22]
(a) General analysis
The phrase “well-founded fear of being persecuted” is the key phrase of the definition. It reflects the views of its authors as to the main elements of refugee character. . . .
To the element of fear -- a state of mind and a subjective condition -- is added the qualification “well-founded.” This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term “well-founded fear” therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration. . . .
An evaluation of the subjective element is inseparable from an assessment of the personality of the applicant, since psychological reactions of different individuals may not be the same in identical conditions. One person may have strong political or religious convictions, the disregard of which would make his life intolerable; another may have no such strong convictions. One person may make an impulsive decision to escape; another may carefully plan his departure.
Due to the importance that the definition attaches to the subjective element, an assessment of credibility is indispensable where the case is not sufficiently clear from the facts on record. It will be necessary to take into account the personal and family background of the applicant, his membership of a particular racial, religious, national, social or political group, his own interpretation of his situation, and his personal experiences -- in other words, everything that may serve to indicate that the predominant motive for his application is fear. Fear must be reasonable. Exaggerated fear, however, may be well-founded if, in all the circumstances of the case, such a state of mind can be regarded as justified.
As regards the objective element, it is necessary to evaluate the statements made by the applicant. The competent authorities that are called upon to determine refugee status are not required to pass judgement on conditions in the applicant’s country of origin. The applicant’s statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation. A knowledge of conditions in the applicant’s country of origin -- while not a primary objective -- is an important element in assessing the applicant’s credibility. In general, the applicant’s fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there.
These considerations need not necessarily be based on the applicant’s own personal experience. What, for example, happened to his friends and relatives and other members of the same racial or social group may well show that his fear that sooner or later he also will become a victim of persecution is well-founded. The laws of the country of origin, and particularly the manner in which they are applied, will be relevant. The situation of each person must, however, be assessed on its own merits. . . .
(b) Persecution
There is no universally accepted definition of “persecution,” and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights -- for the same reasons -- would also constitute persecution. . . .
In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on “cumulative grounds.” Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context. . . .
(g) Agents of persecution
Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. . . . Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.
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NOTES AND QUESTIONS
1. 8 C.F.R. § 208.13(b)(2)(iii) provides that an asylum applicant may prove a well-founded fear of persecution if she or he establishes that there exists a pattern or practice of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, and he or she proves inclusion in, or identification with, one such group. It is not necessary to show that one was personally subject to persecution in the past if evidence establishes a well-founded fear of future persecution in the country of nationality.
2. In INS v. Elias-Zacarias, 502 U.S. 478 (1992), the Court held that a guerrilla organization’s attempts to coerce a non-citizen to join did not necessarily constitute persecution on account of political opinion. Elias-Zacarias testified that armed guerrillas had come to his home and requested that he join their organization. He refused because he feared that the Guatemalan Government would retaliate, and he fled Guatemala because of fear that guerrillas would return. Id. at 479-80.
Justice Scalia for the majority concluded that Elias-Zacarias’ rejection of recruitment was not necessarily motivated by political opinion, but could have involved a variety of non-political reasons. “The ordinary meaning of the phrase ‘persecution on account of . . . political opinion’ . . . is persecution on account of the victim’s political opinion . . ..” Id. at 481-82.
Discussing the evidence necessary to prove the “on account of” part of the refugee definition, the majority concluded that applicants must present some evidence, either direct or circumstantial, regarding the persecutors’ motives. The Court reasoned that, since the statute explicitly requires that persecution be on account of one of five factors, motive was critical. Id. at 483-84.
Dissenting, Justice Stevens disagreed with the conclusion that failure to act does not express a political opinion:
A political opinion can be expressed negatively as well as affirmatively. A refusal to support a cause -- by staying home on election day, by refusing to take an oath of allegiance, or by refusing to step forward at an induction center -- can express a political opinion as effectively as an affirmative statement or affirmative conduct. Even if the refusal is motivated by nothing more than a simple desire to continue living an ordinary life with one’s family, it is the kind of political expression that the asylum provisions of the statute were intended to protect. Id. at 486.
3. Though Elias-Zacarias concerned only persecution on account of political opinion, its language regarding proof of motive might be construed to apply more broadly to all five grounds for refugee status. Canas-Segovia v. INS, for example, extended the reasoning to persecution on account of religion and required a non-citizen to present either direct or circumstantial evidence of his persecutors’ motives. 970 F.2d 599, 601 (9th Cir. 1992). The court held, however, that even after Elias-Zacarias imputed political opinion may be a valid basis for relief. By proving that persecution is based on a belief which persecutors assume a non-citizen holds, he or she establishes motive. Id. at 601-02.
4. In 1996, the Board of Immigration Appeals held that asylum may be appropriate although the perpetrator may have mixed-motives. In Re S--P--, Board of Immigration Appeals, Interim Decision 3287 (1996). The BIA granted asylum to a man of Tamil ethnicity who was imprisoned and abused by the Sri Lankan forces, finding that the government not only sought information regarding the Tamil Tigers, a guerrilla organization for whom the applicant had been forced to work, but sought to punish him for his imputed political opinion. The BIA opinion stated:
Persecutors may have differing motives for engaging in acts of persecution, some tied to reasons protected under the Act and others not. Proving the actual, exact reason for persecution or feared persecution may be impossible in many cases. An asylum applicant is not obliged to show conclusively why persecution has occurred or may occur. . . . In applying asylum law in the context of the Sri Lankan conflict, it is not an easy task to evaluate an asylum applicant’s claim that harm was inflicted because of imputed political views rather than a desire to obtain intelligence information. There may have been, in fact, a combination of these motives. . . . The difficulty of determining motive in situations of general civil unrest should not, however, diminish the protections of asylum for persons who have been punished because of their actual or imputed political views, as opposed to their criminal or violent conduct. . . . As the Court noted in INS v. Cardoza-Fonseca, “Congress has assigned to the Attorney General and his delegates the task of making these hard individualized decisions.” That abuse occurred in the context of ongoing civil strife does not answer the question whether the abuse was on account of political opinion.
In Borja v. INS, 175 F.3d 732 (9th Cir. 1999), the Ninth Circuit held that asylum may be granted when the perpetrator had the mixed motives of economic extortion and persecution due to political opinion. While she was working at her parent’s place of business, Ms. Borja was confronted by members of the New People’s Army [NPA], a violent, revolutionary Communist group which actively opposed the Philippine Government. They asked Ms. Borja to join and support their organization. When she refused they pointed a gun at her. In fear for her life, she told them she would pay them “taxes.” The NPA then demanded monthly “revolutionary taxes” from her and told her she would be killed if she called the police or the authorities. When they doubled the tax, Ms. Borja told them she could not pay and they beat her, put a gun to her head, slashed her with a knife leaving a scar, and threatened to kill her if she did not obtain the money. Ms. Borja went into hiding and fled the country.
The Ninth Circuit relied upon a Second Circuit decision, Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994), which held that “the plain meaning of the phrase ‘persecution on account of the victim’s political opinion,’ does not mean persecution solely on account of the victim’s political opinion. That is, the conclusion that a cause of persecution is economic does not necessarily imply that there cannot exist other causes of the persecution.” The United Nations’ Handbook on Procedures and Criteria for Determining Refugee Status says, “What appears at first sight to be primarily an economic motive for departure may in reality also involve a political element, and it may be the political opinions of the individual that expose him to serious consequences, rather than his objections to the economic measures themselves.” Osorio, 18 F.3d at 1029 (quoting U.N. Handbook at §§ 62-64). The court quoted the Board’s own decision in this case, “An applicant for asylum need not show conclusively why persecution occurred in the past or is likely to occur in the future. However, the applicant must produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground.”
The court concluded that Ms. Borja’s undisputed testimony compels the conclusion that she was persecuted by the NPA, at least in part, on account of her political opinion. It noted that in contrast to the record in Elias-Zacarias, which did not contain any clear evidence of the guerillas’ motive, either direct or circumstantial, Ms. Borja articulated her political opposition to the NPA and that the NPA agents acted in direct response to her statement, creating fear in her that they were going to kill her at that very moment. The court agreed with the Board’s majority that she demonstrated “economic extortion,” but found no support for their conclusion that the extortion was exclusively “non-political.”
The court had previously found that a refusal to pay bribes was an expression of political opinion in Desir v. Ilchert, 840 F.2d 723, 725 (9th Cir. 1988). The court also found that persecution was based on political opinion rather than just financial extortion in Gonzales-Neyra v. INS, 122 F.3d 1293 (9th Cir. 1997), as amended, 133 F.3d 726 (9th Cir. 1998). It explained, “The government’s focus on the . . . economic motivation for the extortion demands is misplaced, as was the immigration judge’s and the BIA’s. . . . Thus, the fact that the guerrillas may have initially chosen Gonzales-Neyra as a target for money because he was a successful businessman, does not relate to their subsequent motivation for persecuting him. The persecution of which Gonzales-Neyra complains is not the extortion, but the threats upon his life and business that were made after the guerrillas learned of his political orientation.” Id. at 1296.
In DeBrenner v. Ashcroft, 388 F.3d 629, 636-37 (8th Cir. 2004), the court upheld an asylum claim by wealthy Peruvians who alleged persecution by the Shining Path guerrillas due, in part, to the applicants’ imputed political opinion as supporters of the capitalist economy. In so doing, the court distinguished INS v. Elias-Zacarias, 502 U.S. 478 (1992), where there was no evidence of actual or imputed political opinion.
5. How might Awata be able to show that a persecutory motive was “central”?
6. Might you successfully argue that Awata’s refusal to subject her daughter to FGM expresses a political opinion? What problems of proof do you foresee in making that argument?
7. Paragraph 51 of the UNHCR Handbook declares that “serious violations of human rights . . . constitute persecution.” No U.S. courts have directly addressed the issue of whether the violation of a human rights treaty constitutes persecution. In Matter of Chang, Interim Dec. No. 3107 (BIA 1989), however, the BIA suggested such an approach (in dicta):
[E]ven if involuntary sterilization was demonstrated to be a violation of internationally recognized human rights, that fact in itself would not establish that an individual subjected to such an act was a victim of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” We are satisfied that if an individual demonstrated a well-founded fear that such an act would occur “on account of” [one of the above reasons], the “refugee” definition . . . would be met. [superseded by statute, 8 U.S.C. § 1101(a)(42)]
Id. If U.S. courts adopted that approach, would violation of any treaty constitute persecution? Recall the discussion of the Covenant on Economic, Social and Cultural Rights in chapter 4. Would violation of a right guaranteed in that Covenant constitute persecution? What about case law holding that economic disadvantage must be substantial? Does the UNHCR Handbook’s limiting persecution to “serious” violations adequately address that concern?
8. A finding that adequate government protection or services exist for victims of domestic violence is often fatal to an asylum claim based on gender-based violence. For example, in Canada an asylum claim from a Costa Rican woman was denied because despite apparent police inaction, the Refugee Protection Division found that relief could have been sought by reporting the police inaction to the Ombudsman. Chinchilla v. Canada, [2005] F.C. 534.
3. Procedural Issues: Claiming Refugee Status
Deborah E. Anker, Law of Asylum in the United States 2-7, 523-24, 528-30, 533, 537-39, 570-71 (3rd ed. 1999) (brackets indicate modified and updated text) (several footnotes and section headings omitted) (emphasis altered or omitted):
[T]he United States provides four major forms of protection to persons fleeing persecution: asylum, withholding of removal, refugees status, and Torture Convention relief. All of these protections derive from international law and from specific treaties. . ..
. . . The Refugee Act of 1980 adopted from the [1951 Convention relating to the Status of Refugees] the definition of “refugee,” which lies at the core of both asylum and refugee status, and the Convention’s fundamental obligation of protection against return or non-refoulement that forms the basis of the U.S. statutory withholding of removal protection. In 1994, the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; that treaty also contains a non-refoulement provision. Article 3 [of the Torture Convention] protects a person from return to a country where she faces possible torture. The Immigration and Naturalization Service [now U.S. Citizenship and Immigration Services (CIS)] initially implemented article 3 through informal administrative procedures; recent legislation partially codifies the article 3 obligation. . ..
What is called “refugee” status under U.S. law is only available to persons applying from outside the United States. A person must qualify under the definition of “refugee” and meet other statutory and non-statutory criteria. Each year, refugees admissions – limited by number, region, and a system of priorities – are determined through a statutory consultation process between the President and Congress that identifies refugee groups “of special humanitarian concern” to the United States. . . . [T]he individual eligibility determinations take place outside the United States and are not subject to a formal legal process. . . .
[For fiscal year 2006, the refugee ceiling includes 33,000 from Africa, 15,000 from East Asia, 15,000 from Europe and Central Asia, 5,000 from Latin America and the Caribbean, and 3,500 from the Near East and South Asia[23] The regional allocations do not reflect the distribution of refugees throughout the world, but instead, illustrate U.S. foreign policy interests. Unused allocations may be transferred to regions where needed. Because of security concerns and bureaucratic burdens the number of refugees actually entering the United States was far fewer in 2002 and 2003 than authorized by the President. For example, in FY 2002, President Bush set the number at 70,000, but only 27,058 refugees were actually admitted. In FY 2005, for which the ceiling was set at 70,000, actual arrivals were estimated to total 54,000.]
Asylum status, in contrast, is available to persons seeking protection in the United States or at its borders. The main criteria for obtaining asylum are contained in the basic refugee definition: persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion( Unlike the refugee provision, asylum requires no prior designation that the person is a refugee “of special humanitarian concern” to the United States. There are, generally, no numerical or categorical limitations to asylum status. . . .
“Withholding of removal” is usually a companion form of relief to asylum . . . [A]n application for asylum generally also is considered an application for withholding of removal. . . . The statute prohibits the removal of a non-citizen to a country if the person’s “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” . . . Although the United States . . . interprets the withholding provision as imposing a higher burden of proof than asylum[,] the core substantive provisions . . . are the same. Withholding only protects a person from return to the country of persecution; it does not grant a status in the United States.
[T]he other form of relief . . . is protection against return to possible torture found in article 3 of the Torture Convention. [This] relief differs in some important respects from asylum and withholding. Its treaty basis and the definition of protected persons – possible torture victims, rather than “refugees” – is obviously different. . . . Unlike the prohibition against return in refugee law, the non-refoulement principle under the Torture Convention is absolute and allows for no exceptions. Its standard of harm is clearly higher: torture is a form of persecution, but there are types of harm that rise to the level of persecution, but do not amount to torture. . . .
Asylum and Withholding of Removal
. . . [T]he traditional body of refugee law – in the United States, asylum status and withholding of removal [ – ] is referred to generally as asylum law. Asylum and withholding are generally available to persons who are physically present or “arriving” in the United States. . . .
There are two basic fora for most asylum and withholding claims. Generally, those persons who have not been apprehended or arrested by the [CIS] may apply “affirmatively”; an Asylum Officer (AO) will interview the applicant and determine the claim. If the AO does not grant the claim, or if the [CIS] arrests, apprehends, or otherwise initiates proceedings against the person, she may apply “defensively” during a formal removal hearing before an Immigration Judge (IJ). . . .
In 1996, a major revision to the immigration statute was enacted, by the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which affected asylum and withholding procedures. IIRIRA . . . enacted “expedited removal” procedures. Under these procedures, an inspecting officer at a port of entry may summarily remove certain persons he suspects of misrepresentation in obtaining a visa or admission to the United States, or possession of false or improper documents. If the person expresses fear of return, the officer should refer her to an AO for a proceeding to determine if she has a “credible fear” of persecution. She may obtain review of a negative determination before an IJ. There is no further administrative or judicial review. If she “passes” the credible fear screening, an IJ will adjudicate her asylum claim in the course of a removal proceeding. The statute mandates that persons subject to expedited removal, including the credible fear screening process, be detained. IIRIRA generally increased the grounds for mandatory detention. In practice, many asylum applicants subject to removal proceedings are detained, which can have a significant impact on their access to evidence and legal representation, and ultimately on the outcome of their claims.
Persons who apply for asylum may be able to obtain work authorization, although there is a [six-month] waiting period and the [CIS] attempts to schedule interviews so that permission to work is not granted before the interview. The applicant’s spouse and minor children may receive status along with the applicant, or the person granted asylum may file for them if they were not included in the initial application. Persons who are granted asylum may apply for permanent residency status after one year. Those who are granted withholding have no status per se, but are protected from return to the prosecuting country. Under some circumstances asylum status and withholding protection may be terminated.
1. Affirmative applications for asylum and withholding of removal
A person may apply for asylum “affirmatively,” that is, without having been previously arrested or otherwise placed in removal proceedings. An individual files the affirmative asylum application [form I-589] with one of three . . . Regional Service Centers [which in turn] forwards the application to the appropriate Asylum Office. The AO schedules an interview and notifies the applicant of the interview time and place. . ..
The AO may either grant asylum or refer the applicant for removal proceedings under INA Section 240. If the applicant maintains a valid nonimmigrant status at the time the application is decided, the AO may grant or simply deny asylum. . . . If the application is not granted, and the individual had not maintained a non-immigrant status, the AO may serve the individual with a Notice to Appear (NTA) for a removal hearing before an IJ. [The IJ will then adjudicate both the asylum claim and request for withholding of removal.] . . .
[Two reforms have changed the official asylum process.] First, regulatory changes in 1995 established a 180-day waiting period for employment authorization, measured from the time the asylum application is filed. Second, IIRIRA [mandated that all affirmative asylum applications must be filed within one year of the non-citizen’s arrival in the United States]. [M]ost of these procedural barriers do not apply to applications for withholding, which is mandatory and based on an international treaty obligation. . . .
. . . If the applicant is determined to be ineligible to apply for asylum, . . . the claim will be construed as one for withholding of removal alone.
. . . If the AO does not grant asylum, he will refer the applicant for removal proceedings where the IJ can consider both asylum and withholding claims (unless( the person is in a valid non-immigrant status, in which case, she may be continued in such status). . . .
. . . AOs may request specific comments from the State Department regarding individual cases or types of claims under consideration or such other information as they deem appropriate. Any such comments received will become part of the record. . . .
2. Defensive applications for asylum and withholding of removal
A person who has been served with an NTA or other charging document, which has also been filed with the immigration court, may apply for asylum and withholding “defensively” in the course of the subsequent removal proceedings. Asylum seekers placed in . . . removal proceedings may be grouped in one of three broad categories: 1) those referred from expedited removal proceedings, . . . based on a positive credible fear interview; 2) those referred following an affirmative asylum interview; and 3) others who are subject to removal . . . and come to the attention of the [CIS] through arrest or other means.
A removal proceeding is a formal administrative hearing process to determine whether an individual will be ordered to leave the United States. [It] is formally adversarial. In contrast to the [CIS’s] non-adversarial role during affirmative asylum interviews, during removal proceedings, a trial attorney separately represents the [CIS].
The individual also may be represented by counsel of the individual’s choosing (at no expense to the government). . . .
Removal proceedings against an individual formally begin when the [CIS] issues a charging document (the NTA). . . . The NTA charges the individual with being removable . . . and states the provisions of the law that the person has allegedly violated. Subsequently, a hearing is held before the IJ to determine if the person is “inadmissible” or “deportable,” as charged. If that determination is made, then the person may apply for relief including asylum and withholding of removal. . . .
Before IIRIRA, there were separate “deportation” and “exclusion” proceedings, rather than, as under current law, one removal proceeding. (Current grounds of “inadmissibility” are roughly equivalent to prior grounds of “excludability”). . . .
Torture Convention relief
[8 C.F.R. § 208.16 and 8 C.F.R. § 208.18] provide for two forms of protection under the Convention Against Torture (CAT): (a) withholding of removal (an additional for of withholding to that under INA § 241(b)(3) (1999 and 2001 Supp.) (implementing the Refugee Convention); and (b) deferral of removal. . . .
The burden of proof is on the applicant for CAT protection to establish that it is more likely than not that he would be tortured if removed to the proposed country of removal. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence related to the possibility of future torture shall be considered, including, but not limited to: evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and other relevant information regarding conditions in the country of removal.[24]
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NOTES AND QUESTIONS
1. What are advantages and disadvantages of affirmatively applying for asylum? Of waiting and then later raising asylum or withholding of removal as a defense to removal?
2. In 1998, in order to ensure compliance with Article 3 of the Convention Against Torture, Congress passed the Foreign Affairs Reform and Restructuring Act (FARRA). Article 3 of the Torture Convention provides that “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. . . .” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A res. 39/46, annex, 39 U.N. G.A.O.R. Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987. Pursuant to FARRA, the INS adopted implementing regulations on February 16, 1999. 64 Fed. Reg. 8478 (1999). Claims under these new regulations provide an alternative avenue of relief to non-citizens seeking asylum or seeking to avoid extradition. The regulations apply only to withholding of removal, and thus do not give the successful applicant the beneficial immigration status which asylum provides. Both affirmative claims to asylum officers and defensive claims to immigration judges are permitted. The regulations forbid the removal of non-citizens who face a substantial risk of torture if returned to their country of origin. The non-citizen need not show that she faces torture on account of race, religion, nationality, membership of a particular social group or political opinion, only that she is more likely than not to be tortured by government officials or by private actors with government acquiescence. Elzbieta Klimowicz, Note: Article 15 of the Torture Convention: Enforcement in U.S. Extradition Proceedings, 15 Geo Immigr L.J. 183 (2000). See also, Barbara Cochrane Alexander, Note: Convention Against Torture: A Viable Alternative Legal Remedy for Domestic Violence Victims, 15 Am. U. Int’l L. Rev. 895 (2000); James A. Lazarus, Note: In Through the Side Door: Analyzing In Re Anikwata Under U.S. Asylum Law and the Torture Convention, 32 Case W. Res. J. Int’l L. 101 (2000).
In Zheng v. Ashcroft, 332 F.3d 1186, 1194-97 (9th Cir. 2003), the court held that a government’s actual knowledge or willful acceptance of private torture is not necessary to establish such “acquiescence.” Instead, the court held that acquiescence was established by evidence of the government’s awareness of such torture and failure to prevent same.
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4. Alternative Forms of Relief and Other Procedural Issues
Initial decisions on affirmative asylum applications are made by Asylum Officers, and when they do not grant asylum, the initial decision is deferred to an immigration judge. From the latter’s decisions, appeals lie with the BIA. In turn the BIA decisions are reviewable by the courts of appeals and (upon a grant of certiorari) by the U.S. Supreme Court.
a. CAT Relief
Aside from Asylum and Withholding of Removal, there are three less commonly used procedures. The first, mentioned briefly (pp. 28, 31) is known as Convention Against Torture (CAT) relief. Codified at 8 C.F.R. §§ 208.16, 208.17, 208.18, withholding of removal is available under Article 3 of CAT.
Torture is defined in § 208.18 as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In other words, the torture must be at the acquiescence of the government.”
The burden is on the applicant to show that it is more likely than not that he or she will be tortured if removed to the proposed country. An applicant for CAT relief can apply for withholding of removal under § 208.16(c) or deferral of removal under § 208.17(a). Under § 208.16(c), if the immigration judge finds that the applicant is more likely than not to be tortured if removed to the proposed country, the applicant is then eligible for relief under CAT, and will be granted withholding of removal.
A provision for mandatory denials of withholding of removal, § 208.16(d)(2) and (d)(3), deals with non-citizens who have been convicted of particular felonies or a particularly dangerous crime. If an alien falls within this mandatory denial, CAT relief is still available in the form of deferral of removal, codified at § 208.17(a). The alien may still be subject to detention, and may be removed to another third world country where he or she is not likely to be tortured.
The torture does not have to be on account of any of the five factors (race, religion, nationality, social group, or political opinion) which apply to withholding of removal, but the torture must be by, on behalf of, or with the acquiescence of the government. The focus is on the likelihood of future torture; past torture does not create a rebuttable presumption that shifts the burden of proof in CAT relief as it does in withholding of removal procedures.
b. Cancellation of Removal Relief
Cancellation of Removal regulations (8 C.F.R. § 240, subpt. B) contain a special rule that is intertwined with suspension of deportation and NACARA (Nicaraguan Adjustment and Central American Relief Act of 1997). Cancellation of Removal for non-citizens that are not from NACARA countries[25] is available for certain permanent residents as long as they:
a. Are aliens lawfully admitted for permanent residence for not less than five years
b. Have resided in the United States continuously for at least seven years after having been admitted on any status
c. Have not been convicted of any aggravated felony.
Cancellation of Removal for certain nonpermanent residents requires that an illegal alien:
a. resided in the United States for 10 continuous years;
b. has a family member (child, spouse, or parent) who is a lawful permanent resident or U.S. citizen;
c. shows that he or she has good moral character, which can be established by showing the absence of certain crimes; and
d. the alien must also show that his or her removal would pose an exceptional and extremely unusual hardship to the alien’s lawfully residing family members.
240A(b) of the Act; 8 U.S.C. § 1229b.
If the alien meets these requirements, he or she may be granted cancellation of removal and his or her status will be adjusted to reflect this determination. Because this form of relief must be requested at a deportation/removal case, if the judge denies cancellation of removal the alien will be deported. There is an exception for battered spouses which lowers this standard to 3 continuous years of residence and also lowers the standard of hardship the alien must show. 8 U.S.C. § 1229b.
c. Adjustment of Status
Aside from the adjustment of status discussed in cancellation of removal, an alien can also apply for adjustment of status under section 245. Any alien who is physically present in the United States, except for an alien who is ineligible (see below), may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application. This is regardless of the actual method of entry into the United States.
There is a lengthy list of aliens who are restricted from applying under 8 C.F.R. 245, and a lengthy list of those who are completely ineligible. While this method is certainly a possibility for some, the vast majority of asylum seekers will not meet the strict requirements of the statute.
d. Voluntary Departure
This provision (8 U.S.C. § 1229c) grants the alien permission to depart voluntarily from the United States within 120 days at the non-citizen’s own expense, if the alien has not completed departure proceedings under § 1229a. If the alien has completed these proceedings, the immigration judge must find that:
(A) the alien has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 1229 (a) of this title;
(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the non-citizen’s application for voluntary departure;
(C) the alien is not deportable under section 1227 (a)(2)(A)(iii) or section 1227 (a)(4) of this title; and
(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so.
If the immigration judge finds the above factors, the alien will be granted voluntary departure for a period that does not last more than 60 days. An alien will not be granted voluntary departure if he or she was previously granted it.
e. Post-2001 Reforms
In 2002 the INS made certain so called “streamlining” procedural “reforms” to improve case management, i.e., to reduce the BIA’s backlog. These “reforms” nearly eliminated three-judge BIA panels, encouraged routine affirmances without opinion, forbade de novo review of fact findings and eliminated one-half of the BIA judges.[26] While the “reforms” did reduce the BIA backlog, they increased appeals from the BIA to the courts of appeals and increased their reversals of the BIA.[27]
These procedural changes have been held not to violate constitutional due process of law.[28] Nonetheless, the appellate courts have been most critical of the BIA’s actions in this “streamlined” regime. For example, in Niam v. Ashcroft, 354 F.3d 652 (7th Cir. 2004) (Posner, J.), the court granted two petitions to review BIA denials of asylum and remanded with directions to assign the cases to different immigration judges. The court, quoting an earlier opinion, stated, “The Board’s analysis was woefully inadequate, indicating that it has not taken to heart previous judicial criticisms of its performance in asylum cases. . . . The elementary principles of administrative law, the rules of logic, and common sense seem to have eluded the Board in this as in other cases.”[29]
D. THE ROLE OF THE UNHCR
1. Purpose, Function, and Responsibility
Statute of the Office of the United Nations High Commissioner for Refugees, G.A. res. 428 (V), 5 U.N. GAOR Supp. (No. 20) at 46, U.N. Doc. A/1775 (1950):
CHAPTER 1
General Provisions
1. The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem of refugees by assisting Governments and, subject to the approval of the Governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities. . .
* * * * *
Amnesty International, Refugee Protection is Human Rights
Protection (2001): Amnesty International statement to the Ministerial Meeting of States Parties to the 1951 Refugee Convention and/or its
1967 Protocol (2001) (footnotes omitted):[30]
The Refugee Convention remains the central instrument of international refugee protection, but over the past fifty years it has been complemented by regional instruments specific to refugee issues -- such as the 1969 OAU Convention on the Specific Aspects of Refugee Problems in Africa, and the 1984 Cartagena Declaration on Refugees -- as well as by numerous international and regional human rights instruments. One welcome development
over the past decade is that international and regional human rights instruments and bodies have increasingly been recognized as tools that can help to address violations of the human rights of asylum-seekers, refugees and internally displaced persons by holding states accountable for these
violations and presenting remedies for individuals.
Although these developments have reaffirmed the Refugee Convention's place in the larger human rights context, there remains in practice a fundamental failure of the international community to address refugee protection through a rights-based approach. This fundamental failure stems largely from a lack of political will on the part of states; the main issues, which are of relevance to all topics being discussed at this meeting, are:
1. States fail to effectively address human rights violations in countries of origin, even though this, together with displacement during armed conflict, remains the root cause of forced displacement and violations of the right to return.
2. States fail to respect the human right to seek and enjoy asylum from persecution, implicit in the very existence of the Refugee Convention, and set out in Article 14 of the Universal Declaration of Human Rights.
3. States fail to respect the basic principle of non-refoulement, recognized as part of customary international law, which provides that no one should be sent back to a territory where they would be at risk of serious human rights abuses.
4 States fail to respect and protect the fundamental human rights of non-nationals (including refugees, asylum-seekers, stateless people and migrants) who legally or illegally, arrive or reside in their territories. In the search for strengthened protection of the rights of refugees and
asylum-seekers, and effective solutions to violations of those rights, Amnesty International has advocated increased use of international human rights bodies and mechanisms. The organization has also worked towards making regional human rights bodies take greater responsibility for exerting demands on states who fail to deliver on the rights of refugees. This is increasingly important in light of the stymied development of international refugee law, the limited ability of UNHCR as both a protection and assistance agency to operate with certainty of access and an adequate degree of independence, and the regressive nature of current challenges by a number
of states to some of the core principles of refugee law. Even though strengthened implementation of the Refugee Convention would be a key element in addressing violations of the rights of refugees and asylum-seekers, this would not be the solution to all of the listed concerns. Over the next few years, one of the major challenges and goals for those interested in refugee protection will be to lay claim to the rest of the UN human rights system to assert the human rights of refugees.
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NOTES AND QUESTIONS
1. Although the above material derives from 1991, the issues it mentions are still matters of concern for the UNHCR. The UNHCR website has many additional resources relating to refugees and internally displaced persons: .
2. What is the purpose of having the UNHCR report to and receive directives from only two U.N. bodies: the General Assembly and the Economic and Social Council? See UNHCR, An Introduction to the International Protection of Refugees 6-7 (1992) (training module for UNHCR staff).
3. UNHCR has become a very complex organization, with both protection and assistance functions. “While refugees must clearly be distinguished from others, there may also be persons with international protection needs who are outside the refugee protection framework, requiring finer distinctions to be made to provide protection in ways complementary to the 1951 Convention. Ensuring that all protection needs are met is the collective responsibility of States.” UNHCR, Note on International Protection, U.N. Doc. A/AC.96/1024, para. 5 (2006).
Assistance involves ensuring adequate food, shelter, and medical supplies, in coordination with organizations such as the World Health Organization, the U.N. International Children’s Emergency Fund, the International Committee of the Red Cross, and non-governmental humanitarian relief organizations. On the tension between protection and assistance, see Joan Fitzpatrick, Refugee Protection in the Twenty-first Century, 44 Germ. Y.B. Int’l L. 77 (2001).
4. UNHCR may also assist in repatriation under paragraph 8(c) of the UNHCR Statute (to “assist[] governmental and private efforts to promote voluntary repatriation” once the conditions which caused displacement have been rectified). In 2006, for example, the UNHCR was in the process of negotiating and monitoring the return of refugees/displaced persons to Afghanistan, Liberia, Rwanda, and Southern Sudan.
5. UNHCR also has begun to focus on prevention. “We cannot provide effective protection to refugees, or – when they return home – make their repatriation durable, unless we address the key problems underlying refugee flows, and, in particular, security and poverty.” Sadako Ogata, United Nations High Commissioner for Refugees, Lecture at Ben Gurion University: “The Current Problems of Refugee Populations” (May 23, 2000).
6. Since the 1970s, the UNHCR role has expanded to include persons who do not fall within traditional definitions of “refugee.” The class of protected persons includes those who flee their homes due to armed conflict and internal turmoil rather than persecution on account of one of the five factors. Those persons generally are considered to be “of concern” to the UNHCR. See UNHCR and International Protection, A Protection Induction Programme, ch. 2 (2005),
The Organization of African Unity has enlarged the refugee definition to include those persons who are compelled to leave their homelands on account of “external aggression, occupation, foreign domination, or events seriously disturbing public order.” Similarly, in the 1984 Cartagena Declaration on Refugees, Central American states recommended that the term “refugee” apply to “persons who have fled their country because their lives, safety, or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances which have seriously disturbed public order.”
It is, perhaps, not premature to conclude as a matter of customary law that those displaced for reasons other than a well-founded fear of persecution are entitled to some measure of “refugee-like” protection -- though precisely how much and in what form is unclear. Although states are generally reluctant to give full conventional treatment to these “new” refugees, the language of the General Assembly resolutions and Executive Committee pronouncements suggests that these people deserve at a minimum both protection against [expulsion or return] and permission to remain in the territory until an appropriate solution is found for them.
Ralph G. Steinhardt, The United Nations and Refugees: 1945-1988, in The Universal Declaration of Human Rights 1948-1988: Human Rights, The United Nations and Amnesty International 77, 86-87 (1988) (footnotes omitted).
The discussion concerning a broadened refugee definition is sometimes confused with that over “temporary protection”. The latter is a form of protection in situations of mass influx, in which flows of forced migrants are likely to include Convention refugees along with those fleeing generalized violence and danger. Temporary protection systems at the national level vary widely. In some cases, these measures operate as means of admission with standards of treatment less favorable than those enjoyed by recognized refugees. In the United States, Temporary Protected Status (TPS) is not an admissions program, but a form of leave to remain for those who happen to be present in the United States at the time the Attorney General designates their country for the status. 8 U.S.C. § 1254(a) (enacted as part of the Immigration Act of 1990, Pub. L. No. 101-649, § 302(b)). See generally:
Susan M. Akram & Terry Rempel, Temporary Protection as an Instrument for Implementing the Right of Return for Palestinian Refugees, 22 B.U. Int’l L.J. 1 (2004);
Peter C. Diamond, Comment, Temporary Protected Status under the Immigration Act of 1990, 28 Williamette L. Rev. 857 (1992);
Joan Fitzpatrick, Flight from Asylum: Trends toward Temporary “Refuge” and Local Responses to Forced Migrations, 35 Va. J. Int’l L. 13 (1994);
Joan Fitzpatrick, Temporary Protection for Refugees: Elements of a Formalized Regime, 94 Am. J. Int’l L. 279 (2000);
Matthew E. Price, Persecution Complex: Justifying Asylum Law’s Preference for Persecuted People, 47 Harv. Int’l L.J. 413 (2006);
Ralph G. Steinhardt, The United Nations and Refugees: 1945-1988, in The Universal Declaration of Human Rights 1948-1988: Human Rights, The United Nations and Amnesty International 77, 86-87 (1988);
Ruth E. Wasem, Asylum and Temporary Protected Status Under U.S. Immigration Law (1991).
7. Under the Homeland Security Act, administration of the TPS program was transferred from the Attorney General to the Secretary for Homeland Security, who has discretion to make TPS designations for up to eighteen months. The Secretary’s decision to designate a country for TPS is not subject to judicial review. Most of the TPS designations involve countries experiencing civil war or armed conflict. E.g., Bosnia-Herzegovina, Burundi, El Salvador, Kuwait, Liberia, Lebanon, Rwanda, Sierra Leone, Somalia and Sudan. TPS, however, may also be granted for other reasons such as natural disasters. For example, in 1997 certain natives of Montserrat were granted TPS status resulting from the consequences of a volcanic eruption, and in 1999, certain Nicaragua and Honduras natives were granted TPS as a result of the flooding in those countries. See .
8. In 1992 the UNHCR published a new edition of the Handbook on Procedures and Criteria for Determining Refugee Status. (See pg. 14, supra.) In addition, UNHCR in the last four years has published more specific guidelines regarding gender-related persecution, “particular social group,” cessation of refugee status, internal relocation alternative, the exclusion clauses and procedural standards for refugee status determination.[31]
9. For more discussion of the UNHCR, see: UNHCR Global Report 2005 (2006), U.N. Doc. ST/HCR(058)/G562/2005 (2005), ; see also:
Lawyers Committee for Human Rights, The UNHCR at 40: Refugee Protection at the Crossroads (1991);
Volker Turk, The Role of UNHCR in the Development of International Refugee Law, in Refugee Rights and Realities: Evolving International Concepts and Regimes 153 (Frances Nicholson and Patrick Twomey eds. 1999);
UNHCR, Handbook for Emergencies (1982) (a guide to implementing and managing emergency refugee operations).
During the 50th anniversary of the 1951 Refugee Convention, UNHCR organized Global Consultations on Refugee Protection, to explore its role and difficult issues of interpretation and application of the refugee treaties. Documents produced for the Global Consultations can be found on the UNHCR website at .
2. Participation in U.S. Asylum Proceedings
UNHCR pursuant to its supervisory role under Article 35 of its Statute may participate in refugee status determination procedures at the national level. In the United States, UNHCR does not have a direct role but it may provide advice to applicants and serve in an amicus curiae role in litigation concerning refugee law. Reproduced below is the standard response letter to requests for assistance with asylum claims, discussing the varied services the UNHCR can provide to advocates in asylum cases in the United States.
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Dear [Attorney or Representative]:
I am writing in response to your request for assistance from this Office on behalf of your client. Thank you for sending us a copy of your client’s asylum application.
We also wish to inform you that, unlike the situation in some countries, the Office of the United Nations High Commissioner for Refugees (UNHCR) does not have any formal role in the decision-making process on asylum claims in the United States. Nevertheless, we may be able to help you in making your client’s asylum claim in the following ways:
(1) We may file an advisory opinion in support of your client’s claim. However, it is
our policy to comment on the merits of individual cases on an exceptional basis, in particular, when the case presents issues that will have a significant impact on U.S. law. If you wish us to consider filing an advisory opinion in your client’s case, we ask that you provide us with a copy of your client’s Request for Asylum (Form I-589), a copy of any Department of State advisory opinion (if available) and any other supporting documents relevant to your client’s claim or to the decision by the U.S. authorities. We should emphasize that UNHCR advisory opinions are not legally binding on the U.S. authorities in their determination of refugee status;
(2) If your client has been granted asylum or refugee status in another country, we
can try to verify this information. In order to do so, we must have your client’s complete name and age as well as the dates of his stay in that country;
(3) If the U.S. government believes that your client may have been “firmly resettled”
in another country prior to coming to the United States, we may be able to obtain information about his status in that country that might shed light on this issue.
I am also sending you a copy of a list of organizations that provide documentation on human rights in various countries. You may wish to contact some of them to request further documentation to support your client’s claim.
If you would like our help in any of the above ways, or if you have any further questions, please write to us. . . .
Sincerely,
Legal Counselor
E. GENDER-BASED REFUGEE CLAIMS
1. Is Violence Against Women Persecution?
Despite the long history of violence against women and of repeated condemnations of such acts, few treaties specifically make violence against women human rights violations. The Women’s Convention does not, for example, expressly refer to violence against women as a form of discrimination. Article 2 of the U.N. Declaration on the Elimination of Violence Against Women, however, defines “violence against women” to involve
[p]hysical, sexual and psychological violence occurring in the family, including battering, . . . marital rape, female genital mutilation and other traditional practices harmful to women. . . .
In preambulatory remarks the General Assembly “affirm[ed] that violence against women both violates and impairs or nullifies the enjoyment by women of human rights and fundamental freedoms.”
This chapter will explore the link between gender-based violence as a human rights violation and as a basis for a claim to refugee status. TwoThree cases will be presented, along with guidelines and regulations issued by UNHCR, national authorities, and NGOs. The cases will refer to some of the guidelines and regulations.
Especially relevant here is the May 2, 2002, UNHCR Guidelines on International Protection No. 1: “Gender-Related Persecution” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/01)[32] That document provides, in part, as follows:
• “Even though gender is not specifically referenced in the refugee definition, it is widely accepted that it can influence, or dictate, the type of persecution or harm suffered and the reasons for this treatment. The refugee definition, properly interpreted, therefore covers gender-related claims.” (¶ 6)
• “There is no doubt that rape and other forms of gender-related violence . . . are acts which inflict severe pain and suffering – both mental and physical – and which have been used as forms of persecution, whether perpetrated by State or private actors.” (¶ 9)[33]
• “Even though a particular State may have prohibited a persecutory practice (e.g. female genital mutilation), the State may nevertheless continue to condone or tolerate the practice, or may not be able to stop the practice effectively. In such cases, the practice would still amount to persecution. (¶11)
• “. . . serious discriminatory or other offensive acts committed by the local populace, or by individuals, can also be considered persecution if such acts are knowingly tolerated by the authorities, or if the authorities refuse, or are unable, to offer effective protection.”(¶ 19)
• “Thus, a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.” (¶ 29 (emphasis in original).)[34]
• “It follows that sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men. Their characteristics also identify them as a group in society . . ..” (¶ 30)
• “The size of the group has sometimes been used as a basis for refusing to recognise ‘women’ generally as a particular social group. This argument has no basis in fact or reason, as the other grounds are not bound by this question of size. There should equally be no requirement that the particular social group be cohesive or that members of it voluntarily associate, or that every member of the group is at risk of persecution . . ..” (¶ 31)
• “Under this ground, a claimant must show that he or she has a well-founded fear of being persecuted for holding certain political opinions (usually different from those of the Government or parts of the society), or because the holding of such opinions has been attributed to him or her. Political opinion should be understood in the broad sense, to incorporate any opinion on any matter in which the machinery of State, government, society, or policy may be engaged. This may include an opinion as to gender roles. (¶ 32)
The following additional points relative to gender-based claims are put forth in the UNHCR Guidelines on International Protection No. 2: “Membership of a Particular Social Group:”
• “For example, in the situation of domestic abuse, a wife may not always be able to establish that her husband is abusing her based on her membership in a social group, political opinion or other Convention ground. Nonetheless, if the State is unwilling to extend protection based on one of the five grounds, then she may be able to establish a valid claim for refugee status: the harm visited upon her by her husband is based on the State’s unwillingness to protect her for reasons of a Convention ground.” (¶ 22)
• “This reasoning may be summarized as follows. The causal link may be satisfied: (1) where there is a real risk of being persecuted at the hands of a non-State actor for reasons which are related to one of the Convention grounds, whether or not the failure of the State to protect the claimant is Convention related; or (2) where the risk of being persecuted at the hands of a non-State actor is unrelated to a Convention ground, but the inability or unwillingness of the State to offer protection is for a Convention reason.” (¶ 23)
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In Re Fauziya Kasinga, 21 I. & N. Dec. 357, Interim Decision (BIA) 3278 (1996) (various citations and footnotes removed):
SCHMIDT, Chairman:
A fundamental issue before us is whether the practice of female genital mutilation (“FGM”) can be the basis for a grant of asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1994). On appeal, the parties agree that FGM can be the basis for a grant of asylum. We find that FGM can be a basis for asylum.
Nevertheless, the parties disagree about 1) the parameters of FGM as a ground for asylum in future cases, and 2) whether the applicant is entitled to asylum on the basis of the record before us. In deciding this case, we decline to speculate on, or establish rules for, cases that are not before us. We make seven major findings in the applicant’s case. Those findings are summarized below.
First, the record before us reflects that the applicant is a credible witness. Second, FGM, as practiced by the Tchamba-Kunsuntu Tribe of Togo and documented in the record, constitutes persecution. Third, the applicant is a member of a social group consisting of young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice. Fourth, the applicant has a well-founded fear of persecution. Fifth, the persecution the applicant fears is “on account of” her social group. Sixth, the applicant’s fear of persecution is country-wide. Seventh, and finally, the applicant is eligible for and should be granted asylum in the exercise of discretion.
. . . The background materials confirm that the FGM practiced in some African countries, such as Togo, is of an extreme nature causing permanent damage, and not just a minor form of genital ritual. . .
II. FGM AS PERSECUTION
While a number of descriptions of persecution have been formulated in our past decisions, we have recognized that persecution can consist of the infliction of harm or suffering by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim. See Matter of Acosta, 19 I&N Dec. 211, 222-23 (BIA 1985). The “seeking to overcome” formulation has its antecedents in concepts of persecution that predate the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102.
As observed by the INS, many of our past cases involved actors who had a subjective intent to punish their victims. However, this subjective “punitive” or “malignant” intent is not required for harm to constitute persecution.
Our characterization of FGM as persecution is consistent with our past definitions of that term. We therefore reach the conclusion that FGM can be persecution without passing on the INS’s proposed “shocks the conscience” test . . ..
III. SOCIAL GROUP
To be a basis for a grant of asylum, persecution must relate to one of five categories described in section 101(a)(42)(A) of the Act. The parties agree that the relevant category in this case is “particular social group.” Each party has advanced several formulations of the “particular social group” at issue in this case. . .
In the context of this case, we find the particular social group to be the following: young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice. This is very similar to the formulations suggested by the parties.
The defined social group meets the test we set forth in Matter of Acosta. . . . It also is consistent with the law of the United States Court of Appeals for the Third Circuit, where this case arose. Fatin v. INS, 12 F.3d 1233, 1241 (3d Cir. 1993) (stating that Iranian women who refuse to conform to the Iranian Government’s gender-specific laws and social norms may well satisfy the Acosta definition).
In accordance with Acosta, the particular social group is defined by common characteristics that members of the group either cannot change, or should not be required to change because such characteristics are fundamental to their individual identities. The characteristics of being a “young woman” and a “member of the Tchamba-Kunsuntu Tribe” cannot be changed. The characteristic of having intact genitalia is one that is so fundamental to the individual identity of a young woman that she should not be required to change it.
V. “ON ACCOUNT OF”. . .
Both parties have advanced, and the background materials support, the proposition that there is no legitimate reason for FGM . . .
We agree with the parties that, as described and documented in this record, FGM is practiced, at least in some significant part, to overcome sexual characteristics of young women of the tribe who have not been, and do not wish to be, subjected to FGM. We therefore find that the persecution the applicant fears in Togo is “on account of” her status as a member of the defined social group.
VI. COUNTRY-WIDE PERSECUTION
The INS suggests, in its brief and at oral argument, that a remand is necessary because the applicant has not established that she would be unable to avoid FGM by moving to some other part of Togo. As we found in Part I of our opinion, the applicant presented credible testimony that her husband is a well-known individual who is a friend of the police in Togo. She testified that her aunt and her husband were looking for her and that there could be no refuge for her because Togo is a small country and the police would not protect her.
The applicant’s testimony is consistent with the background information in the record. That information confirms that 1) FGM is widely practiced in Togo; 2) acts of violence and abuse against women in Togo are tolerated by the police; 3) the Government of Togo has a poor human rights record; and 4) most African women can expect little governmental protection from FGM. See 1993 Country Reports, supra; Profile, supra; FGM Alert, supra, at 6-7. We also take notice that Togo is a small country of approximately 22,000 square miles, slightly smaller than West Virginia.
Neither in its briefs nor at oral argument did the INS raise any claim of “new evidence” that might show changed country conditions. We assume that if the INS had any new documentation showing that the applicant could find safety from FGM elsewhere in Togo, it would have offered that evidence in support of its motion to remand.
For the foregoing reasons, we find that this record adequately supports the applicant’s claim that she has a country-wide fear of persecution in Togo.
VII. DISCRETION
We have determined that the applicant is eligible for asylum because she has a well-founded fear of persecution on account of her membership in a particular social group in Togo. A grant of asylum to an eligible applicant is discretionary. The final issue is whether the applicant merits a favorable exercise of discretion. The danger of persecution will outweigh all but the most egregious adverse factors. The type of persecution feared by the applicant is very severe.
To the extent that the Immigration Judge suggested that the applicant had a legal obligation to seek refuge in Ghana or Germany, the record does not support such a conclusion. The applicant offered credible reasons for not seeking refuge in either of those countries in her particular circumstances.
The applicant purchased someone else’s passport and used it to come to the United States. However, upon arrival, she did not attempt to use the false passport to enter. She told the immigration inspector the truth.
We have weighed the favorable and adverse factors and are satisfied that discretion should be exercised in favor of the applicant. Therefore, we will grant asylum to the applicant.
CONCURRING OPINION: Lory D. Rosenberg, Board Member
First, this case involves the respondent’s reasonable fear that she faces the possibility of harm or abuse, rising to the level of persecution, inflicted on account of her membership in a particular social group.
In this case, I conclude that the applicant’s fear is of imminent female genital mutilation, related to being forced to enter an arranged marriage, documented in the record as constituting a mandatory tribal custom. The harm or abuse amounting to persecution is the genital mutilation opposed by the applicant. The reason the persecution would be inflicted, the “on account of” element, is because of the persecutor’s intent to overcome her state of being non-mutilated and accordingly, free from male-dominated tribal control, including an arranged marriage.
I see no reason to depart from our existing jurisprudence in order to determine the claim set forth here. In my view, this issue is controlled by our precedent decisions, interpreting the statute and agency regulations, in which, only recently, we have recognized that government-tortured Sri Lankans; imprisoned and beaten Somalia tribesmen; persecuted Afghani Mujahedin fighters; and Haitian women, raped for political retribution, can set forth claims which deserve and warrant protection within our laws.
Second, a social group definition that takes into account and differentiates the other component elements of the definition of persecution which warrant protection under United States law is critical.
There is nothing about a social group definition based upon gender that requires us to treat it as either an aberration, or as an unanticipated development requiring a new standard. While this is the first time that this Board has addressed the particular type of harm or abuse feared by the respondent -- female genital mutilation -- it is not the first time that the Board has addressed the “particular social group category.” Indeed, this Board has specifically addressed the category of particular social group persecution in a recent decision. Matter of H--, Interim Decision 3276 (BIA 1996) (holding that membership in an identifiable subclan of a Somalian tribe constitutes membership in a particular social group and that harm suffered on account of that membership constitutes persecution).
The social group category within the refugee definition incorporated into the Act has been recognized as having deliberately been included as a “catch-all” for individuals not falling into the first four specifically enumerated categories of political opinion, race, religion, or ethnicity. See Kristin E. Kandt, United States Asylum Law: Recognizing Persecution Based on Gender Using Canada as a Comparison, 9 Geo. Immigr. L.J. 137, 145 (1995): (citing T. Alexander Aleinikoff, The Meaning of “Persecution” on United States Asylum Law, 3 Int’l J. Refugee L. 5, 11 (1991); see also Nancy Kelly, Guidelines for Women’s Asylum Claims, 26 Cornell Int’l L.J. 625 (1993); Pamela Goldberg, Anyplace But Home: Asylum in the United States for Women Fleeing Intimate Violence, 26 Cornell Int’l L.J. 565, 591-92 (1993). As Professor Goldberg discusses, the scope of the social group category has been addressed by preeminent international law scholars. For example, Atle Grahl-Madsen considers it to be broader than the other categories and to have been added to the Convention precisely to protect against persecution that would arise from unforeseeable circumstances. In addition, Guy Goodwin Gill asserts that the category allows states to expand it to various classes susceptible to persecution. In her article, Professor Goldberg proposes one definition of a gender-identified social group which would include a group of women characterized by circumstances or similar treatment, not unlike the definition we propose here.
Unlike requests for asylum premised upon political opinion, social group claims, like those involving race, ethnicity, or religion, are status based and do not necessarily require a showing of the presence of an individual’s opinions or activities which spurs the persecutor’s wrath or otherwise motivates the harm or persecution. Matter of H--, supra. Rather, such requests involve a determination of whether the shared characteristics are those which motivate an agent of persecution to seek to overcome or otherwise harm the individual. Matter of Acosta, supra. Consequently, while not inaccurate, it is surplusage to define the social group in this case by including as an element the applicant’s opposition to the practice of female genital mutilation.
It may be true that sometimes an individual woman’s political opinion may overlap or coexist with her membership in a group designated as a particular social group; however, that does not detract from the fact that social group membership is a status-based ground protected under the Act, just as is religion or ethnicity. While it is not impossible that a political or social opinion, either actual or imputed, may be shared by persons whom, as a result, we would characterize as constituting a particular social group within the meaning of the Act, that is not the case here. As I have stated, the applicant’s political or social views -- her attitude or intent -- is not relevant to our definition of the social group to which she belongs, but rather to whether the harm or abuse she faces constitutes persecution. . . .
The only distinguishing characteristic about this case that I can perceive to set it apart from others we already have decided is that it involves a woman. Reliance upon such a distinction to support a separate category for treatment of women’s asylum claims, to my mind, would be impermissible. See, e.g., Kandt, supra, at 143-151. Here, the applicant is a member of a group: girls and women of a given tribe, some perhaps of marriageable age, whose members are routinely subjected to the harm which the majority finds to constitute persecution. The applicant’s opposition (which happens to be present in this case) or the lack of it, is neither determinative, nor necessary to define the social group in accordance with the statutory language.
Third, it is the role of this Board to interpret and apply the statute in individual cases coming before us for the purpose of establishing a consistent framework for adjudication. . ..
Consideration of gender-based, or gender-related, asylum claims within the “membership in a particular social group” construct that exists within the Act is entirely appropriate and consistent with the developing trend of jurisprudence in the United States and Canada as well as with international norms. Fatin v. INS, supra; Cheung v. Canada, 102 D.L.R. 4th 214 (1993); cf. Gomez v. INS, 947 F.2d 660 (2d Cir. 1991). Further, the United Nations High Commissioner for Refugees explicitly encourages the use of “particular social group” analysis to extend protection to women asylum seekers who otherwise satisfy the refugee definition. See United Nations High Commissioner for Refugees, Memorandum: Female Genital Mutilation (Geneva, UNHCR, Division of International Protection, May 1994). Our recognition of a particular social group based upon tribal affiliation and gender is also in harmony with the guidelines for adjudicating women’s asylum claims issued by the Service, see Coven, U.S. Dep’t of Justice, Considerations for Asylum Officers Adjudicating Asylum Claims From Women (1995), and with the Canadian guidelines for women refugees facing gender-related persecution, see Immigration and Refugee Board, Guidelines Issued by the Chairperson Pursuant to Section 65(B) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution (1993) (“Canadian gender guidelines”).
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NOTES AND QUESTIONS
1. Prior to Kasinga, FGM was recognized as grounds for suspending deportation by an immigration judge in Oregon in a widely-publicized decision in March 1994. Lydia Oluloro, a Nigerian woman, feared that two U.S.-born daughters would be forced to submit to FGM if the three returned to Nigeria. See Dimitra Kessenides, Finding the Right Strategy to Stop a Deportation, Am. Law., June 1994, at 35. That case apparently represented the first time FGM had been raised as a ground for suspension of deportation (now “cancellation of removal”) from the U.S.
2. Does In re Kasinga require swift approval of Awata and Kaya’s asylum case? Even the most optimistic commentators would likely answer in the negative. First, the Board narrowly limited its focus to a small group of women in Togo and refused to speculate on the decision’s application to other cases not before it. See Mary M. Sheridan, Comment; In re Fauziya Kasinga: The United States Has Opened its Doors to Victims of Female Genital Mutilation, 71 St. John’s L. Rev. 433, 460 (1997). Second, the Board acknowledged that the FGM common in Togo was a most severe form of the practice, thus raising the question of whether cases based on less severe forms of FGM merit the same protection. See Arthur C. Helton & Allison Nicoll, Female Genital Mutilation as Ground for Asylum in the United States: The Recent Case of In re Fauziya Kasinga and Prospects for More Gender Sensitive Approaches, 28 Colum. Hum. Rts. L. Rev. 375, 382-83 (1997). Third, it does not address the question of past persecution of women already subjected to FGM, like Awata.
Does Matter of Quist, reproduced just below, extend the holding in Kasinga to a similar, though not identical, situation in another country. Does the holding in Quist indicate a greater willingness on the part of the BIA to grant asylum based on FGM, domestic abuse, both, or neither?
Precedent decisions of the BIA are binding on all subsequent cases before immigration courts or INS officers involving the same issues. 8 C.F.R. § 3.1(g) (2000). Quist is a non-precedent decision.
______________________________________________________________________________
Matter of Jainaba Awummee Quist, Board of Immigration Appeals, 29 Immig. Rptr. B1-68, July 9, 2004 (various citations and footnotes omitted):
I. The Applicant's Claim
The respondent is a 32-year-old . . . citizen of the Gambia and a member of the Wolof ethnic group . . . The respondent gave birth to a son in October 1992 and a daughter in April 1995. She married the father of her children in July 1995 against her mother's wishes because she did not want her children to be considered illegitimate. The respondent reported that she regretted having married her husband that very first day when he was rude to her relatives in an effort to show that the respondent now belonged to him. He frequently beat her and would tell her that a Muslim woman must do as her husband says and there can be only one leader in the household. He also used aggressive sex as a way to punish the respondent, which at one time led her to go to the emergency room for abdominal pains . . . After the marriage, the respondent's husband began to demand that the respondent be circumcised. He and his family are from the Mandinka ethnic group and believe that women should undergo Female Genital Mutilation (''FGM''). The respondent is Wolof and does not believe in FGM. . . . Many of his worst attacks came after an argument about FGM. After one such argument, he pushed her head against a column on the patio, which split her forehead open, requiring stitches and leaving a scar. On another occasion when she expressed her unwillingness to be circumcised, he kicked and slapped her into unconsciousness. . .
The respondent went to the police after the last incident but was told it was a family matter and that a woman must do as her husband says. She then went to an Islamic Court judge and told him that she had to break the marriage or risk getting killed. He said her case was foolish, that he had more important cases to handle, and that if her husband wanted sex and she did not give it to him, whatever he did was his business. She consulted a lawyer who told her it was a matter for the Islamic Court. The beatings continued . . . [s]he knew that he would ultimately force her to undergo FGM, so she went to the United States under the guise of needing to conduct business in this country. Her husband continues to threaten her in the United States.
The respondent submitted into evidence an affidavit from her mother attesting to the abuse suffered by the respondent at the hands of her husband, including a beating which resulted in the permanent disfigurement of her hand and severe beatings resulting in unconsciousness and hospitalization. The mother states it is not encouraged for a Muslim wife to resort to the law and that she and the rest of her family believe the respondent's husband will cause the respondent injuries which might be fatal if she should return to the Gambia . . .. The record also contains a July 24, 2001, letter from the respondent's husband expressing his anger that she ''disgraced and humiliated'' him by abandoning their family and refusing to return home, stating that he is so angry he feels like tearing her to pieces, threatening to ''wage an all out war'' to bring her back, and stating that she can start the divorce proceedings when she comes back.
The respondent also submitted into evidence a number of background documents. The Country Reports for Human Rights Practices for 2000 state that domestic violence is common in the Gambia and that police tend to consider these incidents to be domestic issues outside of their ordinary jurisdiction . . . A June 3, 1999, report by the United States Agency for International Development (USAID) reports that the prevalence of FGM in the Gambia is 80%, with 100% of Mandinka women undergoing either a clitoridectomy or an excision. . . .
The respondent also submitted into evidence an affidavit from Ylva Hernlund, a sociocultural anthropologist specializing in the subject of FGM and particularly its incidence in the Gambia. She reports that FGM is practiced by about 80% of the Gambia's female population . . .. A woman such as the respondent could be subjected to very insistent pressure from her Mandinka husband and family to undergo FGM, and this pressure could include physical abuse, particularly where her actions are viewed as having shamed or embarrassed her husband before his family and peers. It is unlikely that a victim of domestic violence in the Gambia would receive protection from the police, who, like the courts, are reluctant to become involved in domestic issues. Nor are restraining orders or battered women's shelters a possibility for an abused woman. Finally, internal resettlement within the Gambia would be practically impossible for the respondent in view of the Gambia's small size (comparable to the size of Connecticut) and the strong kinship and community ties in the Gambia which make it likely that news of her whereabouts would travel back to her husband and community very quickly. Both the President and the most powerful religious leader in the Gambia are proponents of FGM.
II. The Immigration Judge's Decision
The respondent seeks asylum on the basis of persecution or a well-founded fear of persecution on account of her membership in a particular social group, which she defines as ''women who are married to Gambian Mandinka men and who have not had FGM and who oppose that practice,'' or, alternatively, ''women who are married to Gambian Muslim men who believe that women are to live under male domination and who resist such domination.'' . . .
III. Analysis. . . .
Additionally, we find that the respondent has established a well-founded fear of persecution on account of a protected ground. In Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996), we indicated that the practice of FGM, which results in permanent disfiguration and poses a risk of serious, potentially life-threatening complications, can be the basis for a claim of persecution. We further provided that young women in Togo who have not been subjected to FGM, as practiced by their tribe, and who oppose the practice, are recognized as members of a ''particular social group'' within the definition of the term ''refugee'' under section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A). In the instant case, we find that the respondent's fear of being forcibly subjected to FGM due to her status as a Gambian woman who has married into the Mandinka ethnic group and who has not been subjected to FGM, as practiced by that ethnic group, and who opposes the practice establishes the basis for an asylum claim. The record reflects that subsequent to her marriage, the respondent endured pressure from her husband and his family to undergo FGM as well as severe beatings and other physical mistreatment by her husband, often due to her refusal to undergo FGM. She was unable to obtain assistance from the police or from an Islamic Court judge, and the documentary evidence indicates that there are no shelters for battered women in the Gambia and no possibility of relocation due to the small size of the country and the strong kinship and community ties. . . .
The fact that the respondent was able to avoid being subjected to FGM during her several years of marriage in the Gambia does not change our conclusion that her fear of being subjected to such procedure is well-founded where her avoidance of such procedure resulted in severe physical mistreatment and the pressure to undergo such procedure was unrelenting. See, e.g., Abay v. Ashcroft, 368 F.3d 634, 640 (6th Cir. 2004) (finding that the fact that the minor asylum applicant's sisters who remained in Ethiopia, a country where the practice of FGM is nearly universal, had not been subjected to FGM did not sufficiently outweigh the testimony of the applicant's mother that she would not be able to prevent a future husband or his relatives from demanding that such procedure be inflicted on the applicant, and concluding that the applicant established that she is a refugee under the Act). Nor does the fact that the respondent's husband's ''abuse of those opposed to FGM appears to be confined only to Respondent'' alter our conclusion (I.J. at 9). It is not necessary to show that the respondent's husband abused others where the evidence shows that the husband's motivation in abusing the respondent was often to punish her for her resistance to his efforts to have her undergo FGM, and the evidence establishes that the respondent could not receive any protection from the government. See, e.g., Matter of S-A-, 22 I. & N. Dec. 1328 (BIA 2000) (finding that a woman with liberal Muslim beliefs established that she suffered persecution and has a well-founded fear of persecution at the hands of her father on account of her religious beliefs).
We conclude that the respondent is statutorily eligible for asylum. We further find that a favorable exercise of discretion is warranted in this case. Accordingly, the respondent's appeal will be sustained and her asylum application will be granted.
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NOTES AND QUESTIONS
1. Several cases since Kasinga have confronted the problem of a woman subjected to FGM in her home country who now has a daughter in the U.S. whom the mother fears would be subjected to FGM if forced to go to that country. The daughter would be entitled to remain in the U.S. if she is an U.S. citizen by birth, or if she is granted asylum. What then is the U.S. legal status of the mother? What happens to a daughter whose mother is removed from the U.S.?
In Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004), the court held that the mother was a “refugee” because she would be persecuted by being forced to witness her daughter’s pain and suffering while undergoing FGM.
In Osigwe v. Ashcroft, 77 F.App’x. 235 (5th Cir. 2003) (unpublished decision), the court held that the mother (along with the father) were not “refugees,” but then remanded the case to the BIA to see if they were entitled to humanitarian asylum and withholding of removal.
In Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002), the court finessed the problem, at least temporarily, by staying the removal of the mother while the case was remanded to the BIA for consideration of the mother’s motion to reopen the case to assert a CAT claim for the daughter.
In Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003), the court refused to extend “derivative asylum” to a Nigerian mother of a U.S.-born child, stating, in part, that, “Under the present law a woman who is otherwise a deportable alien does not have any incentive to bear a child (who automatically becomes a citizen) whose rights to stay are separate from the mother’s obligation to depart.” In a concurring opinion, Judge Posner suggested two possible legislative solutions: (a) reducing the requirement of ten-year residence in the U.S. for suspension of removal in these circumstances; and (b) changing the law that grants citizenship to anyone who is born in the U.S.
2. Experts agree FGM is both a woman’s and a children’s issue. “Female genital mutilation is an extreme example of the general subjugation of women” Efua Dorkenoo & Scilla Elworthy, Female Genital Mutilation: Proposals for Change 16 (1992). It is another vivid reminder of cultures in which the woman’s role is defined by a male hierarchy. FGM, however, is performed mostly on unconsenting children with only their parents’ permission. It compromises the child’s opportunity to develop physically and mentally. Recall the short- and long-term complications associated with the procedures discussed in Part B, supra at 4.
3. Perhaps the most significant contribution of the Kasinga decision was to help raise awareness of, and mobilize public opposition to, FGM. See Karen Musalo, Ruminations on In Re Kasinga: The Decision’s Legacy, 7 S. Cal. Rev. L. & Women’s Stud. 357 (1998); Carol M. Messito, Regulating Rites: Legal Responses to Female Genital Mutilation in the West, 16 Buff. J. Pub. Int. Law 33, 41-42 (1997); and Celia W. Dugger, New Law Bans Genital Cutting in United States, N.Y. Times, Oct. 12, 1996, at 1. In 1996, following the Kasinga decision, Congress criminalized FGM. Pub. L. No. 104-208, 110 Stat. 3009-709. In its current form, the statute provides, with limited medical exceptions, that “whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.” 18 USC § 116 (2000). Fifteen states (California, Colorado, Delaware, Illinois, Maryland, Minnesota, Nevada, New York, North Dakota, Oregon, Rhode Island, Tennessee, Texas, West Virginia and Wisconsin) have enacted similar anti-FGM laws. Anika Rahman & Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide 237 (2000).
4. What effect might federal and state laws have on a claim for asylum based on FGM? Consider Abankwah v. INS, 185 F.3d 18 (2d Cir. 1999), in which the U.S. Court of Appeals for the Second Circuit reversed and remanded a decision of the BIA denying a Ghanaian woman’s application for asylum and ordering her removed. In deciding that the applicant, a 29-year-old member of the Nkumssa tribe from northern Ghana who feared being subject to FGM as punishment for engaging in premarital sex, had established a well-founded fear of FGM, the court took notice of federal anti-FGM statutes. Moreover, citing Kasinga, it accepted as undisputed the fact that FGM rose to the level of persecution under relevant asylum law. Does that case assure that Awata’s claim will be successful?
5. In 1994, Canada became the first country in the world to accord refugee status based on the threat of FGM when its Immigration and Refugee Board (IRB) granted asylum to a Somali woman and her two children. The woman, whose husband resided in Somalia, argued that she could not protect her ten-year-old daughter from being subjected to FGM if returned to Somalia. The woman argued that she would be trapped in an abusive marriage were she deported. She refused to divorce her husband because, under Somali law, fathers automatically receive custody of children; and being separated from the children would destroy her. She also argued that separation would be difficult on the children because they had developed an emotional bond with her, and not their father.
The IRB concluded that Somali law did discriminate against women in giving automatic custody to the father after divorce. Because of emotional harm that would befall the mother if she lost custody, the serious repercussions she faced if she opposed the law, and physical violence to which she would be subject if she returned, the IRB concluded that she had a well-founded fear of persecution on account of membership in the social group of women. With respect to the minor daughter, the IRB concluded that the likelihood of her being subjected to FGM, which the Board found to be persecution, justified her fear and thus brought her within the definition of refugee. With respect to the seven-year-old son the IRB found that forcibly removing him from custody of the only parent he has ever known would not be in his best interests. Further, his best interests, which the U.N. Children’s Convention makes the overriding consideration in human rights law, would not be considered in Somalia. Therefore, the IRB concluded, the boy had a well-founded fear of persecution on account of membership in the social group of minors and granted his claim for asylum.
6. In October 2006, an 18-year-old woman from Sierra Leone was granted asylum in the United Kingdom based on her fear of being subjected to FGM if forced to return to her country of origin. Secretary of State for the Home Department v. K (FC), Fornah (FC) v. Secretary of State for the Home Department, [2006] UKHL 46 (appeal taken from Eng.) (U.K.). In its opinion, the House of Lords emphasized that FGM is an almost universal practice in Sierra Leone and that authorities do little to prevent its practice. The opinion also described the harmful effects of FGM, how it is used to brand women as inferior in society, and stated that there is no doubt that performing FGM constitutes a breach of international human rights law. Consequently, the House of Lords ruled that female members of communities where FGM is an almost universal practice constitute a particular social group and concluded that Ms. Fornah had a well-founded fear of persecution based on her membership in that group.
The opinion cited a series of cases from other countries in which asylum claims based on a fear of FGM have been upheld: United States (In re Kasinga (1996) 21 I & N Dec 357, Abankwah v Immigration and Naturalization Service, 185 F 3d 18 (2d Cir 1999), Mohammed v Gonzales, 400 F 3d 785 (9th Cir 2005)), Australia (RRT N97/19046, unreported, 16 October 1997), Austria (GZ 220.268/0-XI/33/00, unreported, 21 March 2002), and Canada (Re B(PV) [1994] CRDD No 12, 10 May 1994; and Compendium of Decisions, Immigration and Refugee Board, February 2003, pp 31-35)).
76. In 1991, a woman from Mali who feared mutilation if she were sent home sought asylum. The French authorities denied her claim but recognized FGM as persecution and later allowed her to remain in France on humanitarian grounds.
France leads the world in prosecuting FGM cases. It has prosecuted mothers and fathers for subjecting their daughters to the procedure and has also prosecuted women who perform the operations. Though suspended sentences were the ordinary punishment for convicted parents, the trend has been to impose prison sentences for them as well as operators. See Rone Tempest, Ancient Traditions vs. The Law, L.A. Times, Feb. 18, 1993, at A1.
87. In Tunis v. Gonzales, 447 F.3d 547 (7th Cir. 2006), the U.S. Court of Appeals remanded the case of a 23-year-old woman from Sierra Leone to the BIA for further proceedings on the ground that her FGM, performed when the woman was 10, had been incomplete by the standards of her home country. Hence, the woman had already undergone an FGM procedure, but argued that, if sent back to her home country, she might again face FGM. The court stated, “[I]t is unclear whether there is any region in Sierra Leone where she would not be regarded as a "half-woman" by any man she has intercourse with and subjected to excision. That is an issue for exploration on remand, as is another unexplored and unresolved issue -- whether the secret societies would force a mature woman to undergo a remedial excision.” Tunis, at 551.
98. Related to the issue of children in the FGM cases is the increasing attention to the plight of unaccompanied minors who apply for asylum in the U.S. (See, e.g., Solomon, The INS v. Juvenile Justice, amnesty now, Fall 2002, at 8; Rhode, Asylum for kids—We can do better, Nat’l L. J., Dec. 24, 2001, at A21; National Center for Refugee & Immigrant Children (organization to help unaccompanied children released from INS detention in the U.S. find pro bono legal and social services.).[35]
109. The BIA denied asylum in Matter of R-A, 22 I&N Dec. 906 (BIA 1999), in which a woman from Guatemala applied for asylum claiming that abuse by her husband constituted persecution on account of membership in a particular social group or political opinion. The decision was vacated in 2001 by the Attorney General for reconsideration under proposed regulations regarding gender-based asylum claims. In 2003, however, with the regulations still not adopted, the case was certified to the Attorney General, after which the Department of Homeland Security concluded that the applicant had established statutory eligibility for asylum and requested the Attorney General to remand the case to the BIA with instructions to grant asylum without opinion or to postpone a precedent decision until the proposed regulations had been adopted. In early 2005 the Attorney General ignored the request to remand for a grant of asylum without opinion and instead again remanded the case to the BIA for reconsideration in light of the same proposed regulations.[36]
This proposed rule has been in the final stage of the rule-making process since the end of the comment period on January 22, 2001. According to the most recent publication of the Unified Agenda of Federal Regulatory and Deregulatory Actions, no further action has been taken. [37]
110. In Matter of Doisan, 26 Immig. Rptr. B1-127 (2003), the BIA remanded the record of a woman from Ukraine to the Immigration Court, based on her claim of government acquiescence to domestic violence. The BIA held that the Ukrainian Government’s failure to respond to her complaints of her husband’s abusive actions constituted “willful acceptance” under the CAT.
121. The following bibliography may also serve as a useful resource guide: Center for Gender and Refugee Studies: Scholarly Articles. .
For additional reading on the practice of FGM and human rights efforts to eradicate it, see:
Patricia A. Armstrong, Comment, Female Genital Mutilation: The Move Toward the Recognition of Violence Against Women as a Basis for Asylum in the United States, 21 Md. J. Int’l L. & Trade 95 (1997);
Layli Miller Bashir, Female Genital Mutilation in the United States: An Examination of Criminal and Asylum Law, 4 Am. J. Gender & L. 415 (1996);
Kimberly Sowders Blizzard, A Parent’s Predicament: Theories of Relief for Deportable Parents of Children Who Face Female Genital Mutilation, 91 Cornell L. Rev. 899 (2006);
Amanda Cardenas, Note, Female Circumcision: The Road to Change, 26 Syracuse J. Int’l L. & Com. 291 (1999);
Isabelle R. Gunning, Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries, 23 Colum. Hum. Rts. L. Rev. 189 (1992);
Arthur C. Helton & Alison Nicoll, Female Genital Mutilation as Ground for Asylum in the United States: The Recent Case of In re Fauziya Kasinga and Prospects for More Gender Sensitive Approaches, 28 Colum. Hum. Rts. L. Rev. 375 (1997);
Naomi Mendelsohn, At the Crossroads: A Case For and Against a Cultural Defense to Female Genital Mutilation, 56 Rutgers L. Rev. 1011 (2004);
Carol M. Messito, Regulating Rites: Legal Responses to Female Genital Mutilation in the West, 16 In Pub. Interest 33 (1997-1998);
Karen Musalo, Ruminations on In re Kasinga: The Decision’s Legacy, 7 So. Cal. Rev. L. & Women’s Stud. 357 (1998);
Marcelle Rice, Protecting Parents: Why Mothers and Fathers Who Oppose Female Genital Cutting Qualify for Asylum, Immigration Briefings, Nov. 2004, at 1;
Amy Stern, Female Genital Mutilation: United States Asylum Laws Are in Need of Reform, 6 Am. U. J. Gender & L. 89 (1997);
Sub-Commission on the Promotion and Protection of Human Rights, Traditional Practices Affecting the Health of Women and the Girl Child, U.N. Doc. E/CN.4/Sub.2/2001/27 (2001);
Nahid Toubia, Female Genital Mutilation: A Call to Action (1993);
Alice Walker, Possessing the Secret of Joy (1992);
Alice Walker & Pratibha Parmar, Warrior Marks: Female Genital Mutilation & The Sexual Blinding of Women (1993);
Alexi Nicole Wood, A Cultural Rite Of Passage Or A Form Of Torture: Female Genital Mutilation From An International Law Perspective, 12 Hastings Women’s L.J. 347 (Summer, 2001).
132. For additional reading on domestic violence as a grounds for asylum, see:
Laura S. Adams, Fleeing the Family: A Domestic Violence Victim’s Particular Social Group, 49 Loy. L. Rev. 287 (2003);
Mahsa Aliaskari, U.S. Asylum Law Applied to Battered Women Fleeing Islamic Countries, 8 AM. U. J. GENDER SOC POL’Y & L. 231 (2000);
Deborah Anker et al., Women Whose Governments Are Unable or Unwilling to Provide Reasonable Protection from Domestic Violence May Qualify as Refugees under United States Asylum Law, 11 Geo. Immigr. L.J. 709 (1997);
Megan Annitto, Comment: Asylum for Victims of Domestic Violence: Is Protection Possible after In Re R-A-?, 49 CATH. U.L.REV 785 (2000);
Amanda Blank, Note: Domestic Violence as a Basis for Asylum Status: A Human Rights Based Approach, 22 WOMEN’S RIGHTS L. REP. 47 (2000);
Lauren Gilbert, Family Violence and U.S. Immigration Law: New Developments, IMMIGRATION BRIEFINGS (March 2001);
Nancy Kelly, Women Refugees Project of Cambridge and Somerville Legal Services and Harvard Immigration and Refugee Program, Guidelines for Women’s Asylum Claims 4 (1994);
Stephen M. Knight, Reflections on Khawar: Recognizing the Refugee from Family Violence, 14 Hastings Women’s L.J. 27 (2003);
Karen Musalo, Matter of R-A-: An Analysis of the Decision and its Implications, 76 INTERPRETER RELEASES 1177 (Aug. 9, 1999);
Ralf Rosskopf, Agents and Victims: Non-Governmental and Gender-Related Persecution in International and National Law (2004);
Haley Schaffer, Domestic Violence and Asylum in the United States: In re R-A-, 95 Nw. U.L. Rev 779, 790-91 (2001).
143. In Sanchez-Trujillo v. INS the Ninth Circuit defined “particular social group” as a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group. 801 F.2d 1571, 1576 (9th Cir. 1986) (rejecting a claim that the category of young, working-class, urban males of military age constituted a social group). The Second Circuit refined that definition by requiring that group members have a fundamental characteristic in common which is both “recognizable and discrete” and which “serves to distinguish them in the eyes of a persecutor -- or in the eyes of the outside world in general.” Gomez v. INS, 947 F.2d 660, 664 (2nd Cir. 1991). The court rejected “broadly-based characteristics such as youth and gender” and refused to find that women who had been sexually abused by Salvadoran guerrillas possessed any common, identifying characteristic. Id.
154. In Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993), the Third Circuit rejected the limiting
language of Sanchez-Trujillo and Gomez, finding that both Iranian women, and Iranian women who refuse to conform to the government’s gender specific laws and social norms, may constitute a particular social group under the BIA definition. The court followed the BIA’s prior interpretation of a particular social group in, as “a group of persons all of whom share a common, immutable characteristic.” Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985). In Matter of Acosta, the BIA clarified that the common characteristic that defines the group “must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities of consciences.” The court held that to qualify for withholding of deportation or asylum the non-citizen must “(1) identify a group that constitutes a particular social group”. . . (2) establish that he or she is a member of that group, and (3) show that he or she would be persecuted or has a well-founded fear of persecution based on that membership.” While sex alone could constitute “a particular social group,” Fatin could not show she would face persecution on account of her gender alone. The court agreed that Iranian women who refuse to conform to the government’s gender specific laws and social norms may constitute a particular social group who would be persecuted as they would be subjected to severe punishment. However, it denied Ms. Fatin’s application for asylum on the grounds that her opposition to Iranian laws and norms was not of sufficient “depth and importance” to establish that she would refuse to conform, and that conformity itself would not amount to persecution.
165. Safaie v. INS, 25 F.3d 636 (8th Cir. 1994) affirmed a BIA decision upholding an immigration judge’s denial of both asylum and withholding of deportation (now “withholding of removal”) to Safaie, who was punished in Iran because she refused to wear traditional clothing or accept Islamic rules regarding women’s role. She was discharged from her job and later, while attending the University of Teheran, was detained for eight hours and interrogated. Afterwards she was issued a visa authorizing travel outside Iran. She had worn Islamic dress when it became mandatory and was not subjected to further persecution for wearing makeup or smoking. Id. at 638-39. On that evidence an immigration judge found that, though subjectively Safaie may have feared persecution if she were deported (“removed”) to Iran, there was insufficient evidence to prove that her fear of persecution was well-founded. The BIA affirmed.
On appeal the court adopted Fatin’s three-factor definition of “social group,” but held that “women” was too broad. The court stated that “no factfinder could reasonably conclude that all Iranian women had a well-founded fear of persecution based solely on gender.” Id. at 640. The court agreed that “Iranian women who advocate women’s rights or who oppose Iranian customs relating to dress and behavior . . . may well satisfy the definition” of social group but concluded that Safaie’s eight-hour detention did not constitute persecution. Id. Moreover, as in Fatin, Safaie failed to prove that her “opposition” was of such depth and intensity that having to avoid further demonstrations against Islamic laws would constitute persecution, since she had complied previously with other Islamic traditions. Id. at 640-41.
176. On June 16, 1994, the Attorney General designated, as a precedent-decision, Matter of Toboso-Alfonso, Interim Dec. No. 3222 (BIA 1990). It upheld the immigration judge’s grant of withholding of deportation (now “withholding of removal”) to an applicant who asserted that he had been persecuted by the Cuban government on account of homosexuality. Id. The BIA upheld the judge’s conclusions that the applicant had been persecuted in Cuba, had a well-founded fear of continued persecution in that country, and that “this persecution resulted from the applicant’s membership in a particular social group, namely homosexuals.” Id.
187. On December 7, 2000, the INS issued proposed regulations on asylum and withholding definitions, which address many issues relating to gender-based persecution claims. As interpretations of the U.S. definition of refugee, these regulations would bind asylum officers, immigration judges, and the Board of Immigration Appeals. Proposed Regulations on Asylum and Withholding Definitions, 65 Fed. Reg. 76588 (2000). Those proposed regulations might have assisted Awata’s and her daughter’s asylum applications by clarifying the need to determine whether the government has taken “reasonable steps to control the infliction of harm or suffering and whether the applicant has reasonable access to the state protection that exists.” Those regulations have not, however, been adopted.
198. In Guo Chun Di v. Carroll a district court held that Chinese nationals who have a well-founded fear of being sterilized because they oppose and disobey coercive population policies of the People’s Republic of China (PRC) may be granted asylum on the ground of “persecution on account of . . . political opinion.” 842 F. Supp. 858, 861 (E.D. Va. 1994). Under PRC law, Guo Chun Di and his wife were to be sterilized following the birth of their first child. He fled to the U.S. after being ordered by officials to report for sterilization procedures. Upholding his eligibility for asylum the court reasoned that his views regarding procreation, expressed by refusal to comply with the sterilization order, were analogous to publicly expressed feminism and thus constituted a political opinion. Id. at 873. Reaching that conclusion, however, the court carefully noted that it was not passing judgment on whether mere compliance with PRC law would constitute persecution. Id. This decision, however, was reversed on the basis that opposition to the Chinese one-child policy was not a political opinion for which one could be persecuted. (Guo Chun Di v. Moscato, 66 F.3d 315 (4th Cir. 1995)). A year later, 1996, the statutory definition of “refugee” was amended to reject this holding of the Fourth Circuit. See pp. 9-10 supra.
Recall the discussion of Elias-Zacarias. Is the court’s conclusion in Guo Chun Di that a refusal to submit to sterilization constitutes the expression of a political opinion, consistent with Elias-Zacarias?
Other courts that addressed the issue (before the previously discussed 1996 statutory amendment) followed the BIA’s decision in Matter of Chang, Interim Dec. 3107 (BIA 1989), which held that PRC’s one-child policy does not constitute persecution where applied without discrimination, and that persons opposed to that policy do not constitute a particular social group. As discussed above at pp 9-10 supra, however, Congress codified opposition to coercive family planning as a basis for asylum claims by amending the definition of refugee, found in INA 101(a)(42).
2019. In Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc), the Ninth Circuit held that four white South Africans (mother, father and their two children) were members of “a particular social group,” i.e., persons related to “Boss Ronnie,” a white foreman at a private South African company who physically and verbally abused black workers, and that the petitioners had been attacked and threatened on account of that membership. Id. at 1189. The court then remanded the case to the BIA to determine whether the attacks and threats constituted persecution, whether the petitioners had a well-founded fear of future persecution and whether they were entitled to asylum. Id.
In reaching this conclusion, the court recognized that the Ninth Circuit had two inconsistent lines of authority on whether family or kinship ties can give rise to “a particular social group.” Id. at 1186-87. The court, therefore, overruled all of its prior decisions that held that a family could not be such a group and expressly held that a family may constitute such a group. Id. at 1187. [38] In addition, the court stated:
“[O]nly when the alleged persecution precludes relocation and exceeds the government’s ability or will to control can [this type of] claim . . . lead to eligibility for asylum. It is, of course, far more likely that persecution will reach those proportions when kinship ties are mingled with political, religious, racial, or ethnic affinities.” Id. at 1189.
Four of the 11 members of the Ninth Circuit in Thomas concurred with the majority that a family may be a “particular social group,” but dissented from the conclusion that the particular family in the case was such a group without any prior determination of that issue by the BIA. Id. at 1189-93.
On April 17, 2006, the United States summarily reversed the Ninth Circuit, holding that the BIA in the first instance needed to address the “social group” issue. Gonzales v. Thomas, 126 S. Ct. 1613 (U.S. 2006). Hence, the Supreme Court remanded the case for further proceedings consistent with its opinion.
210. In Canada (Attorney-General) v. Ward, 2 S.C.R. 689, 103 D.L.R.4th 1 (Can. 1993), the Supreme Court of Canada discussed “social group” in the context of adjudicating the asylum claim of a member of the Irish National Liberation Army (INLA) who defected from that organization and fled out of fear that Irish authorities would not protect him from INLA reprisals. The court began by summarizing various approaches to interpreting “social group” that have been advocated by Canadian and other contestants:
1. a very wide definition . . . pursuant to which the class serves as a safety net to prevent any possible gap in the other four categories [of the refugee definition];
2. a narrower definition that confines its scope by means of some appropriate limiting mechanism, recognizing that this class if not meant to encompass all groups; and
3. an even narrower definition . . . that responds to concerns about morality and criminality by excluding terrorists, criminals and the like.
103 D.L.R.4th at 25-26.
Advocates of the first approach argue that the intent of the framers of the refugee treaty was to create a comprehensive category to encompass bases of persecution that may evolve. The court exemplified the first approach with several “relevant uniting characteristics”: “ethnic, cultural and linguistic origin, education and family background, . . . economic activity, shared values, outlook and aspirations.” Id. at 26 (citing Guy S. Goodwin-Gill, The Refugee in International Law 30 (1983)). But the court rejected that interpretation of “social group”:
Although the drafters of the [Refugee] Convention inserted the social group category in order to cover any possible lacuna left by the other four groups, this does not necessarily lead to the conclusion that any association bound by some common thread is included. If this were the case, the enumeration of these [other four] bases would have been superfluous; the definition of “refugee” could have been limited to individuals who have a well-founded fear of persecution without more. The drafters’ decision to list these bases was intended to function as another built-in limitation to the obligations of signatory states. The issue that arises, therefore, is the demarcation of this limit.
Id. at 28-29.
The court also rejected the narrow definition of the third approach. It refused to accept a definition that explicitly excludes “undesirable claimants” because concerns as to them are addressed in other parts of refugee law. For example, treaties defining the term “refugee” specifically exclude from that definition members of certain groups and persons who have committed serious human rights violations. Id. at 34-36.
The court chose the second approach as the appropriate interpretation. The theme underlying the Refugee Convention was ensuring basic human rights without discrimination. That focus thus informs the interpretation of “refugee”; and the enumeration of five bases for claiming refugee status parallels international anti-discrimination law, which is concerned with an institutional imbalance in nations’ power structures. Therefore, the court concluded that “the manner in which groups are distinguished for the purposes of discrimination law can thus appropriately be imported into this area of refugee law.” Id. at 29-30. The court summarized:
Canada’s obligation to offer a haven to those fleeing their homelands is not unlimited. . . . Canada should not overstep its role in the international sphere by having its responsibility engaged whenever any group is targeted. Surely there are some groups, the affiliation in which is not so important to the individual that it would be more appropriate to have the person dissociate him- or herself from it before Canada’s responsibility should be engaged. Perhaps the most simplified way to draw the distinction is by opposing that which one is against that which one does, at a particular time. . . .
The meaning assigned to “particular social group” in the Act should take into account the general underlying themes of the defense of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in [several Canadian and U.S. cases, and by James Hathaway in his book, The Law of Refugee Status,] provide a good working rule to achieve this result. They identify three possible categories:
(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
(3) groups associated by a former voluntary status, unalterable due to its historical permanence.
The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one’s past is an immutable part of the person.
Id. at 33-34.
In 1993, Canada granted permanent residence to a Saudi Arabian woman who argued that, because of her sex, she would not be able to dress, travel, study, or work as she pleased in her homeland. The woman claimed she had been stoned and beaten for refusing to wear a chador.
221. Canada’s liberal approach to interpreting “social group” is reflected in the Canadian Immigration and Refugee Board’s (IRB) guidelines on gender-related persecution. Immigration and Refugee Board, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution 1 (1993).
In the guidelines, the IRB concluded that gender-related claims are covered by one or a combination of the five enumerated grounds for refugee status. It recommended recognizing both the family and gender as social groups. Id. at 2-5. It finds irrelevant the that gender is too broad a category because race, religion, nationality, and political opinion are characteristics shared by similarly large numbers of people. Id. at 6-7:
The fact that violence, including sexual and domestic violence, against women is universal is irrelevant when determining whether rape, and other gender-specific crimes constitute forms of persecution. The real issues are whether the violence -- experienced or feared -- is a serious violation of a fundamental human right for a Convention ground and in what circumstances can the risk of that violence be said to result from a failure of state protection.
23. In a 1999 case before the House of Lords in the United Kingdom, two Pakistani women who had been forced by their husbands to leave there homes and were at risk of being falsely accused of adultery in Pakistan, were deemed members of a particular social group within the meaning of Article 1A(2) of the Convention on the Status of Refugees. The court found that while cohesiveness is not a required element of the particular social group category under Article 1A(2), it might prove the existence of a particular social group. Therefore, women could themselves constitute a social group if they lived in a society, such as Pakistan, which discriminated against them based on their gender. The two women in this case were part of a social group and feared persecution based on membership in that social group because the Pakistani Government denied them protection from violence that would have been afforded to a man. The women contended that if forced to return to Pakistan, they would be unprotected by the state and subject to risk of criminal proceedings for sexual immorality. If found guilty, they would likely be flogged or stoned to death. These two women belonged to a social group that can be defined by the coincidence of three factors which are independent of the persecution: their gender, the suspicion of adultery, and their unprotected position in Pakistan. Islam v. Secretary of State for the Home Department, Regina v. Immigration Appeal Tribunal, Ex parte Shah, [1999] 2 A.C. 629 (H.L.) (U.K.).
In 2004, the Islam & Shah decision was applied in the cases of two women from Kenya -- one a victim of domestic violence at the hands of her husband and the other feared subjection to FGM -- to determine that there was no reason why women in Kenya with those characteristics would not constitute a particular social group. P v. Secretary of State for the Home Department, M v. Secretary of State for the Home Department, [2004] EWCA CIV 1640 (U.K.).
242. In May 1995, the BIA issued as a precedent-decision Matter of D--V--, Interim Dec. No. 3252 (BIA 1993), which overturned the immigration judge’s denial of asylum to a Haitian woman who asserted that she had been gang-raped by military attachés in retaliation for her political activism and religious beliefs. It was the first binding BIA decision to recognize rape as persecution. Harvard Clinic’s Efforts Lead to U.S. Recognition of Politically Motivated Sexual Violence in Asylum Claims of Women Refugees, Harvard L. School News (Harvard Law School, Cambridge, MA) May 26, 1995, at 1-2, 4.
253. Various treaties require governments to protect individuals from the conduct of private actors. Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women provides that states must “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.” G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 195, U.N. Doc. A/Res/34/180 (1981), entered into force Sept. 3, 1981. The U.N. Declaration on the Elimination of Violence Against Women similarly includes all public and private acts of abuse within the definition of “violence against women,” which the declaration requires states to prevent or adequately punish. G.A. res. 48/104, 48 U.N. GAOR, U.N. Doc. A/48/629 (1993). The committee overseeing implementation of the Women’s Convention has noted that “[s]tates [which have ratified] may . . . be responsible for private acts if they fail to act with due diligence to prevent violations of rights, or to investigate and punish acts of violence.” Committee on the Elimination of Discrimination Against Women, Violence Against Women, General Recommendation No. 19, at 1, U.N. Doc. CEDAW/C/1992/L.1/Add.15 (1992). The U.N. Convention on the Rights of the Child also requires states to “ensure the child such protection and care as is necessary for his or her well-being . . ..” G.A. res. 44/25, 44 U.N. GAOR Supp. (No. 49) at 166, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990.
U.S. law parallels international law. “Acts of persecution or feared persecution must have been committed by the government or by groups or individuals that the government either cannot or will not control.” Pamela Goldberg, Anyplace but Home: Asylum in the United States for Women Fleeing Intimate Violence, 26 Cornell Int’l L.J. 565, 571 (1993) (citing Asylum Branch, Office of General Counsel, Immigration & Naturalization Serv., Basic Law Manual: Asylum, Summary and Overview Concerning Asylum Law 25 (1991) [hereinafter INS Manual]).
The INS Manual explicitly states that an individual may have a “well-founded fear of persecution . . . because he or she is not adequately protected by his or her government.” INS Manual, supra, at 25. See also Sotelo-Aquije v. Slattery, 17 F.3d 33, 37 (2nd Cir. 1994) (persecution includes violence perpetrated by Shining Path guerrillas if the government cannot control them).
264. The 1994 and 2000 versions of the Violence Against Women Act (VAWA) contained language intended to allow immigrant victims of domestic violence more easily to escape that abuse and prosecute abusers.[39] Application of VAWA, though offers no relief to persons claiming abuse by persons who are neither U.S. citizens nor permanent residents. In Alfaro-Rodriguez v. INS, 1999 U.S. App. LEXIS 31945 (9th Cir. 1999) (unpublished), the court upheld a decision of the BIA to deny asylum and withholding of deportation to a woman from El Salvador. In a footnote, the court rejected the petitioner’s application of VAWA to her case, stating, “The VAWA, however, does not apply to Alfaro. The plain terms of the relevant statutory provisions apply narrowly to women who have lived in the United States with, and who are abused by, spouses who are American citizens or permanent residents . . .. Alfaro testified that Bonilla abused her. Bonilla is neither an American citizen nor a permanent resident of the United States. Moreover, they have not resided in this country together.”
275. For further discussion of the public/private dichotomy, see:
Patricia C. Armstrong et al., Human Rights and Non-State Actors (Panel Discussion), 11 Pace Int’l L. Rev. 205 (1999);
Andrew Clapham, Human Rights in the Private Sphere (1993) (discussing “the application of human rights law to the actions of private bodies”);
Stephanie Farrior, State Responsibility in a Multiactor World, State Responsibility for Human Rights Abuses by Non-State Actors, 92 Am. Soc’y Int’l L. Proc. 48 (1998);
Jan Arno Hessbruegge, Human Rights Violations Arising from Conduct of Non-State Actors, 11 Buff. Hum. Rts. L. Rev. 21 (2005);
Michael G. Heyman, Asylum, Social Group Membership and the Non-State Actor: The Challenge of Domestic Violence, 36 Mich. J. L. Ref. 767 (2003);
Tracy E. Higgins, Symposium on Unfinished Feminist Business, Reviving the Public/Private Distinction in Feminist Theorizing, 75 Chi.-Kent L. Rev. 847 (2000);
Jennifer Moore, From National State to Failed State: International Protection from Human Rights Abuses by Non-State Agents, 31 Colum. Hum. Rts. L. Rev. 81 (1999);
Non-State Actors in the Human Rights Universe (George Andreopoulos et al. eds., 2006);
Daniel Wilsher, Non-State Actors and the Definition of a Refugee in the United Kingdom: Protection, Accountability or Culpability?, 15 Int’l J. Refugee L. 68 (2003);
286. For further reading on gender-based discrimination and asylum claims and the problems faced by refugee women, see:
Elizabeth Adjin-Tettey, Failure of State Protection Within the Context of the Convention Refugee Regime with Particular Reference to Gender-Related Persecution, 3 J. Int’l Legal Stud. 53 (1997);
Susan Musarrat Akram, Orientalism Revisited in Asylum and Refugee Claims, 12 Int’l J. Refugee L. 7 (2000);
Jacqueline Bhabha, Demography and Rights: Women, Children and Access to Asylum, 16 Int’l J. Refugee L. 227 (2004);
Binaifer A. Davar, Rethinking Gender-Related Persecution, Sexual Violence, and Women’s Rights: A New Conceptual Framework for Political Asylum and International Human Rights Law, 6 Tex. J. Women & L. 241 (1997);
Udara Jayasinghe, Women as ‘Members of a Particular Social Group,’ Alternative L.J., June 2006, at 79;
Nancy Kelly, Guidelines for Women’s Asylum Claims, 6 Int’l J. Refugee L. 517 (1994);
Audrey Macklin, Cross-Border Shopping for Ideas: A Critical Review of United States, Canadian, and Australian Approaches to Gender-Related Asylum Claims, 13 Geo. Immigr. L.J. 25 (1998);
Karen Musalo & Stephen Knight, Asylum for Victims of Gender Violence: An Overview of the Law, and an Analysis of 45 Unpublished Decisions, Immigration Briefings, Dec. 2003, at 1;
Valerie Plant, Honor Killings and the Asylum Gender Gap, 15 J. Transnat’l L. & Pol’y 109 (2005);
Symposium on Gender-Based Persecution, Int’l J. Refugee L. 1 (Autumn 1997);
Bret Thiele, Persecution on Account of Gender: A Need for Refugee Law Reform, 11 Hastings Women’s L.J. 221 (2000);
Caryn L.Weisblat, Comment, Gender-Based Persecution: Does United States Law Provide Women Refugees with a Fair Chance?, 7 Tulane J. Int’l & Comp. L. 407 (1999);
297. For additional information on campaigns to combat violence against women, see:
Astrid Aafjes, Gender Violence: The Hidden War Crime (1998);
Rhonda Copelon, International Human Rights Dimensions of Intimate Violence: Another Strand in the Dialectic of Feminist Lawmaking, 11 Am. U. J. Gender Soc. Pol’y & L. 865 (2003);
Ann D. Jordan, Human Rights, Violence Against Women, and Economic Development (The People’s Republic of China Experience), 5 Colum. J. Gender & L. 216 (1996);
Steve Kuan, Alien Tort Claims Act- Classifying Peacetime Rape as an International Human Rights Violation, 22 Hous. J. Int’l L. 451 (2000);
Xiaorong Li, License to Coerce: Violence Against Women, State Responsibility, and Legal Failures in China’s Family-Planning Program, 8 Yale J. L. & Feminism 145 (1996);
Sally Engle Merry, Constructing a Global Law--Violence against Women and the Human Rights System, 28 Law & Soc. Inquiry 941 (2003);
Fionnuala Ni Aolain, Sex-Based Violence and the Holocaust- A Reevaluation of Harms and Rights in International Law, 12 Yale J. L. & Feminism 43 (2000);
J. Oloka Onyango, The Plight of the Larger Half: Human Rights, Gender Violence and the Legal Status of Refugee and Internally Displaced Women in Africa, 24 Denv. J. Int’l L. & Pol’y 349 (1996);
Jordan J. Paust, Human Rights Purposes of the Violence Against Women Act and International Law’s Enhancement of Congressional Power, 22 Hous. J. Int’l L. 209 (2000);
Nieves Rico, Gender-Based Violence: A Human Rights Issue (1996);
Jennifer L. Ulrich, Note, Confronting Gender-Based Violence With International Instruments: Is A Solution To The Pandemic Within Reach?, 7 Ind. J. Global Legal Stud. 629 (2000);
Andreea Vesa, International and Regional Standards for Protecting Victims of Domestic Violence, 12 Am. U. J. Gender Soc. Pol’y & L. 309 (2004);
Violence Against Women in the International Community: Symposium, 7 Cardozo J. Int’l & Comp. L. 205 (1999).
2. Internal Flight
In establishing a claim for asylum, an applicant “does not have a “well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality . . ..” 8 C.F.R § 208.13(b)(2)(C)(ii) (2006). In assessing the reasonableness of internal relocation “adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.” 8 C.F.R § 208.13(b)(3) (2006).
______________________________________________________________________________
NOTES AND QUESTIONS
1. The absence of country-wide persecution has on occasion been used by courts as a reason for denying asylum. Illustratively, in Cuadras v. INS, 910 F.2d 567 (9th Cir. 1990), the court upheld a BIA determination that a Salvadoran’s fear of persecution resulting from recruitment by guerrilla forces was not well-founded, in part because he could have relocated to other areas of El Salvador to avoid the violence. Id. at 571, n.2.
2. Might Awata and her daughter be expected to relocate in Ghana? Is it relevant that they fear persecution from non-state actors? According to the CIA World Factbook (), Togo has approximately one-fourth the geographic area and population of Ghana. The Gambia is even smaller. What effect could these differences have on application of the holding in Kasinga to the case of Awata and her daughter?
3. In granting asylum to a Zimbabwean woman on the basis of a repeated pattern of spousal abuse, see note , supra at 47, the Canadian Immigration and Refugee Board concluded that she could not avoid persecution by internal flight. On several occasions, her parents returned her to her husband when she sought refuge with them. Her relatives in South Africa and Malawi similarly refused to shelter her. Moreover, because of her husband’s wealth and influence she feared he would find her anywhere in Zimbabwe and subject her to even more serious abuse for trying to leave him. Therefore, the Board concluded that she should not be returned to Zimbabwe.
4. The issue of internally displaced persons is related to the internal flight alternative, in that failed asylum seekers who are repatriated but cannot return to their homes of origin become internally displaced. However, the question of internally displaced persons is much broader, and involves significant issues concerning their right to international protection. The Special Representative of the U.N. Secretary-General has used the term to describe “persons who have been forced to flee their homes suddenly or unexpectedly in large numbers; as a result of armed conflict, internal strife, systematic violations of human rights or natural or man-made disasters; and who are within the territory of their own country.” Analytical Report of the Secretary-General on Internally Displaced Persons, U.N. ESCOR, 48th Sess., 23d mtg., at 5, U.N. Doc. E/CN.4/23 (1992). Commentators use the term to refer both to those who have been forced to flee from their homes but remain within the borders of their country of nationality, and to those who have been forcibly relocated to another part of their home country. According to a 1991 U.N. report, the number of internally displaced persons then exceeded the number of persons officially classified as refugees. Jacques Cuenod, Report on Refugees, Displaced Persons and Returnees, U.N. Doc. E/109/Add.1 (1991).
Because they have not crossed an international border, the internally displaced do not fit within traditional definitions of refugee; and no treaties adequately address problems of the internally displaced. Nonetheless, their problems often are similar to and as acute as those faced by traditional refugees. Most importantly, like traditional refugees internally displaced persons may lack the protection of their own government. The U.N. Commission on Human Rights issued the Guiding Principles on Internal Displacement in 1998, which had been drafted by the Special Representative with the assistance of leading scholars. See Walter Kälin, Guiding Principles on Internal Displacement: Annotations (2000).
5. Concerning the debate regarding protection of internally displaced persons, see:
Report of the Representative of the Secretary-General on the human rights of internally displaced persons, Walter Kälin U.N. Doc. E/CN.4/2006/71, (2006);
Simon Bagshaw, Internally Displaced Persons at the Fifty-Fourth Session of the United Nations Commission on Human Rights, 16 March-24 April 1998, 10 Int’l J. Refugee L. 548 (1998);
Francois Bugnion, Refugees, Internally Displaced Persons, and International Humanitarian Law, 28 Fordham Int’l L.J. 1397 (2005);
Roberta Cohen & Jacques Cuenod, The Brookings Institution--Refugee Policy Group Project on Internal Displacement, Improving Institutional Arrangements for the Internally Displaced (1995);
Roberta Cohen & Francis M. Deng, Masses in Flight: The Global Crisis of Internal Displacement (1998);
Hannah Entwisle, Tracing Cascades: The Normative Development of the U.N. Guiding Principles on Internal Displacement, 19 Geo. Immigr. L.J. 369 (2005);
Nils Geissler, The International Protection of Internally Displaced Persons, 11 Int’l J. Refugee L. 451 (1999);
Karen Hulme, Armed Conflict and the Displaced, 17 Int’l J. Refugee L. 91 (2005);
Walter Kalin, The Guiding Principles on Internal Displacement -- Introduction, 10 Int’l J. Refugee L. 557 (1998);
Tim Wichert, Human Rights, Refugees and Displaced Persons: The 1997 UN Commission on Human Rights (Geneva, 10 March- 18 April 1997), 9 Int’l J. Refugee L. 500 (1997);
Wendy Pitcher Wilson, Comment, The Deportation of “Eritreans” from Ethiopia: Human Rights Violations Tolerated by the International Community, 24 N.C. J. Int’l L. & Com. Reg. 451 (1999).
F. OBSTACLES TO FGM- AND SPOUSAL VIOLENCE-BASED ASYLUM CLAIMS
1. Cultural Relativism
Katherine Brennan, Note, The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, 7 Law & Ineq. J. 367, 368-73 (1991) (footnotes omitted):
. . . Cultural relativists criticize the current international human rights system because, in its search for potential human rights violations, it looks at cultural practices which have been condoned for centuries by the societies which engage in them. These critics assert that cultural practices have a legitimate function indigenous to the culture and that judging these practices according to international norms imposes outside values upon the society. Human rights proponents respond that their evaluation of cultural practices is based on universally accepted norms and, therefore, does not impose the views of outsiders.
. . . [C]ultural relativists often mention female circumcision as an example of traditional practices that should not be evaluated by outsiders. . . .
Cultural relativism can be described, in its simplest form, as the theory that there is infinite cultural diversity and that all cultural practices are equally valid. There are no absolutes upon which to judge one practice against another because, in the words of one scholar, “the principles that we may use for judging behavior or anything else are relative to the culture in which we are raised.” This view of cultural practices calls into question the legitimacy of human rights theory, which purports to establish principles for judging the conduct of all cultures. . . .
The application of cultural relativism to human rights theory has naturally prompted replies by proponents of the current international human rights system. Two major arguments are used to refute the claims of cultural relativists. One is the universalists’ reply and the other is the approach of positivism.
Universalism, which draws from the natural law tradition in Western jurisprudence, is the theory that there exists some set of standards which all cultures espouse. These universal principles transcend cultural differences and serve as the authority for adopting international human rights. This theory assumes that all cultures value the protection of individual human dignity and that they would establish similar minimum standards for protecting their individual members. The official doctrine underlying the current international human rights systems is that the instruments which make up developing international human rights law enumerates these universal minimum standards. . . .
The postitivist response to cultural relativism is that, regardless of the conflicting ideologies and cultural values to which nations adhere, the U.N.-promulgated norms represent agreements by these participating nations to work toward a common goal. Whether or not particular member states have a tradition of valuing individual dignity is irrelevant. If they have ratified human rights instruments based on this theory of individual rights, these states have participated voluntarily in the U.N. process and have obligated themselves to protecting these rights. Just as the theory of positivism in Western jurisprudence asserts that law derives its authority from the consent of those governed, adherents of positivism in international human rights law assert that the authority for these rights is derived from the consent of the participant countries. . . .
* * * * *
Richard A. Shweder, “What About Female Genital Mutilation?” and Why Understanding Culture Matters in the First Place, in Engaging Cultural Differences, The Multicultural Challenge in Liberal Democracies 216, 226-29 (Richard A. Shweder, Martha Minow, and Hazel Rose Marks, eds. 2002) (references omitted):
. . .
So What About FGM?
. . . For starters, the practice of genital alteration is a rather poor example of gender inequality or of society discriminating against women. Surveying the world, one finds few cultures, if any, where genital surgeries are performed exclusively on girls, although many cultures perform such surgeries only on boys or on both sexes. Male genital alterations often take place in adolescence and can involve major modifications (including subincision, in which the penis is split along the line of the urethra). Considering the prevalence, timing, and intensity of the relevant initiation rites and viewed on a worldwide scale, one is hard pressed to argue that this is an obvious instance of a gender inequity disfavoring girls. Quite the contrary; social recognition of the ritual transformation of both boys and girls into a more mature status as empowered men and women often is a major point of the ceremony. In other words, female circumcision, when and where it occurs in Africa, is much more a case of society treating boys and girls equally before the common law and inducting them into responsible adulthood in parallel ways.
The practice is also a poor example of patriarchal domination. Many patriarchal cultures in Europe and Asia do not engage in genital alterations at all, or (as in the case of Jews, many non-African Muslims, and many African ethnic groups) deliberately exclude girls from this highly valued practice and perform the surgery only on boys. Moreover, the African ethnic groups that circumcise both females and males are very different from one another in kinship, religion, economy, family life, ceremonial practice, and so forth. Some are Islamic, some are not. Some are patriarchal, some – such as the Kono, a matrilineal society – are not. Some have formal initiations into well-established women’s organizations, some do not. . . . Some care greatly about female purity, sexual restraint outside of marriage, and the social regulation of desire, but other, (such as Kenyatta’s [K]Gikuyu) are more relaxed about premarital sexual play and are not puritanical.
Indeed, in cases of female initiation and genital alterations, the practice almost always is controlled, performed, and most strongly upheld by women, although male kin often provide material and moral support. Typically, however, men have little to do with these female operations, may not know very much about them, and may feel it is not really their business to interfere to try to tell their wives, mothers, aunts, and grandmothers what to do. Rather, the women of the society are cultural experts in this intimate feminine domain, and they are not particularly inclined to give up power or share their secrets.
In those cases of female genital alterations with which I am most familiar (having lived and taught in Kenya, where the practice is routine for some ethnic groups; . . . adolescent girls who undergo the ritual initiation look forward to it. The ordeal can be painful (especially if done without anesthesia), but it is viewed as a test of courage. This is an event organized and controlled by women, who have their own view of the aesthetics of the body – a different view from ours about what is civilized, dignified, and beautiful. The girl’s parents are not trying to be cruel to their daughter – African parents love their children too. No one is raped or tortured. Indeed, a celebration surrounds the event.
What about the devastating negative effects on health and sexuality so vividly portrayed in the anti-FGM literature? Relatively few methodologically sound studies exist on the consequences of female genital surgeries on sexuality and health. . . . Judged against basic epidemiological research standards, much of the published empirical evidence – including some the most widely cited publications in the anti-FGM advocacy literature – is fatally flawed. . . .
The anti-FGM advocacy literature typically features long lists of short- and long-term medical complications of circumcision, including blood loss, shock, acute infection, menstrual problems, child-bearing difficulties, incontinence, sterility, and death. These lists read like the warning pamphlets that accompany many prescription drugs, which enumerate every claimed negative side effect of the medicine that has ever been reported (no matter how infrequently). . . .
[A] comprehensive review of the literature on the actual frequency and risk of medical complications following genital surgery in Africa suggests that medical complications are the exception and not the rule, that African children do not die because they have been circumcised (rather, they die from malnutrition, war, and disease), and that the experience of sexual pleasure is compatible with the genital aesthetics and related practices of circumcising groups.
. . . [T]he supposed morbidities (such as infertility, painful sex, vulval tumors, menstrual problems, incontinence, and most endogenous infections) often cited by anti-FGM advocacy groups as common long-term problems of female circumcision did not distinguish between circumcised and uncircumcised women. . . .
In other words, the standard alarmist claims in the anti-FGM advocacy literature that African traditions of circumcision have “maimed or killed untold numbers of women and girls” . . . and deprived them of their sexuality may not be true. Given the most reliable (even if limited) scientific evidence at hand, these claims should be viewed with skepticism and not accepted as fact, no matter how many times they are uncritically recapitulated on the editorial pages of the New York Times or poignantly invoked on PBS.
If genital alteration in Africa really were a long-standing cultural practice in which parents, oblivious to intolerably high risks, disabled and murdered their pre-adolescent and adolescent children, there would be good reason to wish for its quick end. . . .
In their reactions to this African cultural practice, the anti-FGM advocacy groups behave much like yesterday’s Christian missionaries. Given the importance of accurate information in public policy debates in liberal democracies, now would be a good time for them to either revise their factoids or else substantiate their claims with rigorously collected data. . . . The real facts, I would suggest, are quite otherwise. With regard to the consequences of genital surgeries, the weight of the evidence suggests that the overwhelming majority of youthful female initiates in countries such as Mali, Kenya, and Sierra Leone believe that they have been improved (physically, socially, and spiritually) by the ceremonial ordeal and symbolic process (including the pain) associated with initiation. Evidence indicates that most of these youthful initiates manage to be (in their own estimation) “improved” without disastrous or major negative consequences for their health. . . . This is not to say that we should not worry about the documented 4 percent to 16 percent urinary infection rate associated with these surgeries, or the 7 percent to 13 percent of cases in which there was excessive bleeding, or the 1 percent rate of septicemia. . . . It would be instructive, however, to compare these rates with rates of infection and bleeding for other types of less controversial Third World surgeries. The reaction of many people to unsafe abortions, for example, is not to do away with abortions. Perhaps some pro-life advocates might be tempted by the argument that because some abortions are unsafe, there should be no abortions at all. However, a far more reasonable reaction to unsafe abortions is to make them safe. Why not the same reaction in the case of female genital alterations? Infections and other medical complications that arise from unsanitary surgical procedures or malpractice can be corrected without depriving “others” of rites and meanings central to their culture, personal identities, and their overall sense of well-being. What I do want to suggest, however, is that the current sense of shock, horror, and righteous “Western” indignation directed against the mothers of Mali, Somalia, Egypt, Sierra Leone, Ethiopia, the Gambia, and the Sudan is misguided, and rather disturbingly misinformed. . . .
* * * * *
Radhika Coomaraswamy, Identity Within: Cultural Relativism, Minority Rights And The Empowerment Of Women, 34 Geo. Wash. Int'l L. Rev. 483, 490 (2002) (footnotes omitted):
IV. Manifestations of the Tension Between Women's Rights, Cultural Relativism,
and Minority Rights
The tension between the rights of groups to practice their culture and the rights of women under international human rights norms plays itself out in the everyday life of women across the globe. The controversy surrounding female genital mutilation (FGM) provides one example of this tension. In 1990 Fuambai Ahmadu, an African scholar from Sierra Leone spoke these emotional words before the American Anthropological Association.
It is difficult for me, considering the number of ceremonies I have observed, including my own, to accept that what appear to be expressions of joy and ecstatic celebrations of womanhood in actuality disguise hidden experiences of coercion and subjugation. Indeed, I offer that the bulk of Kono women who uphold these rituals do so because they want to . . . they embrace the legitimacy of female authority, and particularly, the authority of their mothers and grandmothers. . . .
Very little debate exists about the nature and hazards of FGM. The health hazards are particularly appalling and forced the World Health Organization to make a concerted intervention against FGM. But sometimes the more difficult questions relating to female sexuality had to be raised, including, for example, when Egypt decided to allow hospitals to perform FGM. Even if an FGM operation is performed without health hazards, the net result is that women will not feel sexual pleasure after the operation. Sexual relations for women who have undergone the operation will always be uncomfortable and sometimes painful. Problematically, international standards with regard to the right to sexuality remain slightly ambiguous. The Beijing Declaration recognizes the right to reproductive health that in its definition includes the right of individuals to a safe and satisfying sex life. The right to sexuality and sexual choice as an explicit right in and of itself, however, has yet to be recognized and endorsed at the international level.
. . . While earlier feminists and nationalists accepted the western critique and tried to move forward, many of the young African anthropologists question the critique itself. Concepts of right and wrong, good and bad, are thrown up for grabs in a world with no moral anchor and where human rights is seen as the last outreach of the Enlightenment project.
The debate concerning FGM therefore becomes a conversation about colonialism and imposed western values. More importantly African anthropologists react to the way western feminists struggle against FGM, who place much emphasis on morality and self-righteousness. The United States has banned the practice under federal law and has made loans to African states conditional on measures taken to fight FGM. African scholars bristle at this type of intervention. They believe that FGM has become the vehicle for "the arrogant gaze" through which the west looks at and passes judgment on other cultures. Therefore, the legal imperative of rights discourse sometimes gets lost in the larger politics of the post-colonial era.
And yet, as much as these scholars disturb the complacency of the western worldview, individual African women disturb their romanticization of FGM as a celebrated practice of being a woman the African way. The case of Fauzia Kasinga highlights the injustice involved in turning a blind eye to FGM. . . . She was given asylum as the United States recognized the imminent threat of FGM as a ground for gender-based persecution. Since her case, Togo has banned FGM and her own patriarch has become a convert in the struggle against FGM.
While African anthropologists react to disorder in their symbolic universe, many women activists in Kenya, Senegal, and Egypt have begun door-to-door campaigns to fight FGM at the grassroots level. Isabelle Gunning captures the majority viewpoint in her article on the best strategy to fight FGM. In it, she warns against the arrogant gaze of imperialism and finds that the best way to fight FGM is through education and health programs supported by the international community. Recognizing that FGM is a violation of a woman's rights and dignity, she suggests the best strategy is teaching the community.
For many others, however, such as the feminist pioneers Nawal el Sadaawi, banning the practice and imposing criminal sanctions is an essential element in fighting these practices. A ban imposed by law also represents state recognition that it will not tolerate such practices. In addition, one of the reasons why women perpetuate the practice is that they feel that their daughters will become unmarriageable unless circumcised. Unless the practice is banned, parents do not have an excuse to prevent their daughters from being subjected to the practice. Many campaigners argue that mothers often tell them that they are relieved when the practice is banned because they then have an excuse not to comply with cruel cultural practices.
In deciding which cultural practices deserve international attention and agitation and which practices require criminalization, it is important to consider the nature of the practice. FGM, for example, appears to require concerted campaigning. Given the irreversibility of FGM, its intrinsically violent nature rooted in the sexual subjugation of women, and the fact that it involves a child who cannot exercise choice, many human rights activists around the world feel that there should be a two-pronged attack in fighting the practice of FGM. The attack would include banning the practice, which would serve a summons on society that such practices are unacceptable, as well as education and health programs involving African women that will try and engage the community in a discussion about why this practice is harmful to their women. But Gunning's caution that all this should be done without the arrogant gaze of the outsider is essential if rights discourse is to win the ideological battle. The full participation and consultation of women and men living in these societies must be the ultimate goal . . ..
* * * * *
Michel Rosenfeld, Can Human Rights Bridge The Gap Between Universalism And Cultural Relativism? A Pluralist Assessment Based On The Rights Of Minorities, 30 Colum. Hum. Rts. L. Rev. 249, 283 (Spring, 1999) (footnotes omitted):
. . . Returning to the example of women, as their plight to overcome the manifold burdens of subordination is widespread, both increased awareness of such plight and mobilization to overcome it become increasingly likely to spill over from one culture to another and from polity to polity. As intercultural bonds between women multiply, the intracultural struggle to improve their fate is intensified. A telling recent example of this phenomenon is the outlawing of female circumcision by the Senegalese parliament pursuant to a campaign by Senegalese women.
In the last analysis, while the tension between the pull toward the universal and that toward the particular is unlikely to ever cease, there is currently an unmistakable tendency toward greater convergence. Such convergence, however, does not justify disregarding genuine differences in conceptions of the good. While we may applaud the determination of Senegalese women to put an end to female circumcision, this does not justify imposing such a ban in another context in which women are still genuinely committed to the practice. More generally, while we may be convinced that female circumcision ought to ultimately be eradicated as women throughout the world realize that it contributes to their subordination, we cannot be so sure that other cultural differences of which we disapprove ought not be preserved nonetheless in as much as they contribute to individual dignity and communal integrity (or as their eradication would threaten such dignity or integrity) in a particular cultural setting. From the standpoint of comprehensive pluralism, therefore, human rights still stand against the failure to treat all humans as human. But they also stand against imposing one particular vision of what being human normatively entails on those who do not share that vision.
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NOTES AND QUESTIONS
1. FGM has been both rationalized and condemned by various African governments. Several African organizations have joined international efforts to eradicate the practice on their continent. The Inter-African Committee on Traditional Practices Affecting the Health of Woman and Children, formed in 1984, uses informational campaigns and lobbying of officials to increase awareness about dangers of FGM. It also has developed groups in several countries, including Ghana, to address the practice.
What effect can opposition efforts at the international level have on the practice of FGM in a particular country? What limitations do such campaigns face? Margaret E. Keck and Kathryn Sikkink compared the work of protestant missionaries working to eradicate the practice of female circumcision among the Kikuyu in Kenya during the 1920s and 1930s with the efforts of other transnational advocacy networks. See Activists Beyond Borders: Advocacy Networks in International Politics 72-74 (1998). At the time of the campaign, the prevalence of the practice among the Kikuyu was estimated to be almost 100 per cent. By as late as the mid 1970s, however, this figure had only dropped to 75 per cent, and by the 1990s, 50 per cent of Kenyan adolescent girls still underwent the procedure. Although these results show some reduction in the frequency of FGM, Keck and Sikkink say the campaign’s success was hampered by, inter alia, several domestic structural issues. First, the missionaries encountered strong local opposition in the form of a nascent nationalist movement that embraced female circumcision as a symbol of traditional values. Second, because the anti-circumcision campaign lacked domestic sponsors and primarily utilized the existing church and state apparatuses to influence the local population, it was strongly associated with the unpopular colonial rulers. And third, unlike the successful anti-footbinding campaign in China during the late 19th and early 20th centuries in which activists separated footbinding from greater religious or cultural issues, the campaigners against female circumcision in Kenya insisted on a much broader approach, thus rejecting more moderate, “selective change.”
In the end, say Keck and Sikkink, the anti-circumcision movement in Kenya came to be associated with colonialism and interference, while the domestic opposition movement was associated with independence, nationalism, and tradition. Would you expect a similar result today from international anti-FGM campaigns? What conditions in Ghana today are similar to or different from those of Kenya in the middle to late 20th century? What developments since then work in favor of groups such as the Inter-African Committee on Traditional Practices Affecting the Health of Woman and Children, supra?
2. Cultures are not static. They change over time, undoubtedly as a result, in part, of contacts with cultures with different attitudes toward certain activities. A good example of this process is the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (Sept. 13, 2000); reprinted in 1 Afr. Hum. Rts. L.J. 40, entered into force Nov. 25, 2005. Protocol to the African Charter on Human and Peoples’ Rights of Women in Africa (Protocol). [40] Among its many far-reaching provisions is one whereby States parties shall prohibit “through legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalisation and para-medicalisation of female genital mutilation and all other practices in order to eradicate them.” Protocol, Art. 5(b). More generally, the Protocol requires States Parties to “take appropriate and effective measures to . . . actively promote peace education through curricula and social communication in order to eradicate elements in traditional and cultural beliefs, practices and stereotypes which legitimize and exacerbate the persistence and tolerance of violence against women.” Protocol, Art. 4(2)(d).
3. In testimony before the Sub-Committee on International Security, International Organizations and Human Rights of the House Committee on Foreign Affairs, Dr. Nahid Toubia, a Sudanese-born obstetrician then working in New York, stated:
I stand here today to testify on behalf of many girls and women who had no choice when parts of their bodies were removed in the name of culture and social conformity. . . . In my society, that means cutting essential parts of genitals of girls and women. In America . . . it takes the form of the beauty cut which drives teenage girls and women to mutilate their bodies with plastic surgery, breast implants, bulimia and such procedures.
Women are never allowed to feel holistic, the way they are created. They have to be reshaped by society to please men. Because as women, we are made economically and socially powerless. Most of us have little chance to say no to stop the injustice imposed on us by society.
Most African women have very little power to say no, because as women their only means of survival is to marry, give their husbands sexual pleasure and give birth to many children while suffering in silence.
Today in Africa many of us have found our voice and are speaking out against the custom that abuses and humiliates. We are often silenced in the name of preserving culture and tradition. . . .
Today . . . I would like the world and the people here in this room and the United States to listen to the voices of many brave African women who are doing great work in their own communities but are rarely heard when the issue of female genital mutilation is discussed internationally. It is always seen that outsiders are going to come and save African woman, and very little credence is given to the actual work, very brave work that African women are doing, sometimes at risk to their own lives and health.
Do those comments suggest arguments against using cultural relativism to discount the persecutive nature of FGM?
4. There are NGOs that promote human rights in Africa and Asia, including women’s human rights. Some are based in African nations, including Ghana. E.g., LAWA, available at . Others are European and U.S. organizations that help organize sister organizations in Africa and Asia. E.g., Foundation for Women’s Health, Research and Development, available at ; Center for Gender and Refugee Studies, . Another NGO, The Islamic Dream, is promoting women’s human rights in the Islamic world (). One of its organizers said that Islamic feminists saw themselves as engaged in “a struggle that taps Islamic theology, thinking and history to reclaim rights granted to women by Islam at its birth but erased by manmade rules and tribal traditions masquerading as divine law.” In this jihad or struggle, they were “challenging customs that deny women rights from the mosque to the bedroom: gender segregation, mandatory veiling, forced early marriages, clitorectomies [one form of FGM], polygamy, death for sex outside of marriage, domestic violence and strict domestic roles.” Asra Q. Nomani, A Gender Jihad For Islam’s Future, Wash. Post., Nov. 6, 2005, at B2.
5. In the United States, FGM is believed to be widely practiced among many immigrant communities. But has the enactment of strict federal and state anti-FGM laws in effect limited the degree to which these communities’ cultural needs may be accommodated? In other words, is there “wiggle room” for cultural relativists in this new domestic legal landscape?
Imagine you are the administrator of a hospital that serves a large immigrant population. It is your hospital’s stated policy to accommodate the diverse cultural needs of your patients to the extent that it is possible. Several of your patients, all pregnant women from Somalia, have requested the hospital to circumcise their newborn children, whether boys or girls. Specifically, they are asking the doctors to perform a symbolic sunna, involving only a nick of the hood of the clitoris so as to draw blood, but not involving the removal of any tissue. Their doctors have informed them that only boys are circumcised in the United States, but the mothers insist that if the hospital does not perform the procedure on their daughters, they are willing to spend $1,500 to send them to Somalia where they would most likely undergo the most extreme version of FGM. Is there anything you, as hospital administrator, can do for these women? See Doriane Lambert Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 Duke L.J. 717 (1998), and Tom Brune, Refugee’s Beliefs Don’t Travel Well; Compromise Plan on Circumcision of Girls Gets Little Support, Chi. Trib., Oct. 28, 1996, p. 1, at N. Faced with an identical dilemma, Harborview Medical Center in Seattle, Washington, proposed a compromise: they would perform a symbolic sunna, under local anaesthesia, on girls old enough to understand and consent to the procedure, and with informed parental consent. But, after sharp public criticism, the hospital abandoned its plan before ever implementing it.
6. For more on Female Genital Mutilation and Cultural Relativism, see:
Nancy Ehrenreich & Mark Barr, Intersex Surgery, Female Genital Cutting, and the Selective Condemnation of “Cultural Practices,” 40 Harv. C.R.-C.L. L. Rev. 71(2005);
Female Circumcision: Multicultural Perspectives (Rogaia Mustafa Abusharaf ed., 2006);
Natalie J. Friedenthal, It’s Not All Mutilation: Distinguishing between Female Genital Mutilation and Female Circumcision, 19 N.Y. Int’l L. Rev. 111 (2006);
Vedna Jivan, What Would Gandhi Say? Reconciling Universalism, Cultural Relativism
and Feminism through Women’s Use of CEDAW, 9 S.Y.B.I.L. 103 (2005);
Alexi Nicole Wood, A Cultural Rite Of Passage Or A Form Of Torture: Female Genital Mutilation From An International Law Perspective, 12 Hastings Women’s L.J. 347 (Summer, 2001);
Naomi Mendelsohn, At the Crossroads: A Case For and Against a Cultural Defense to Female Genital Mutilation, 56 Rutgers L. Rev. 1011 (Summer, 2004).
2. Theoretical Foundations of Human Rights
Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist Approaches to International Law, 85 Am. J. Int’l L. 613, 616-34 (1991) (footnotes omitted):
Feminist and Third World Challenges to International Law
[As a consequence of decolonization, Third World countries] challenged both substantive norms of international law and the traditional lawmaking processes as either disadvantageous to them or inadequate to their needs. The impact of this challenge to assumptions about the objective neutrality of norms by showing them to support western values and interests has been substantial. Developing states have also emphasized decision making through negotiation and consensus, and through the use of nontraditional methods of lawmaking such as the “soft law” of General Assembly resolutions. These techniques find some parallel in the types of dispute resolution sometimes associated with the “different voice” of women. . . . [One commentator compared feminine jurisprudence to] the “African world view” . . .. This world view is characterized by “a conception of the self as intrinsically connected with, as part of, both the community and nature.” The attribution to women and Africans of “a concept of the self as dependent on others, as defined through relationships to others, as perceiving self-interest to lie in the welfare of the relational complex,” permits the ascription to these groups of an ethic based on preservation of relationships and an epistemology uniting “hand, brain and heart.” These perceptions contrast with the “European” and male view of the self as autonomous, separate from nature and from others, and with its associated ethics of “rule-governed adjudication of competing rights between self-interested, autonomous others” and its view of knowledge as an entity with a separate, “objective” existence. . . .
More general analogies have been drawn between the position of Third World states and that of women. Both groups are said to encounter the paternalist attitude that they must be properly trained to fit into the world of developed countries and men, respectively. Both feminists and developing nations have also resisted assimilation to prevailing standards and have argued for radical change, emphasizing cooperation rather than individual self-advancement. Both groups have identified unilinear structures that allow their systematic domination and the development of apparently generally applicable theories from very narrow perspectives.
Thus far, however, the “different voice” of developing nations in international law has shown little concern for feminist perspectives. The power structures and decision-making processes in these societies are every bit as exclusive of women as in western societies and the rhetoric of domination and subjugation has not encompassed women, who remain the poorest and least privileged. . . . Although the developing nations’ challenge to international law has been fundamental, it has focused on disparities in economic position and has not questioned the silence of half the world’s population in the creation of international law or the unequal impact of rules of international law on women. Indeed, this challenge to the European origins of international law and many of its assumptions may have had an adverse effect on the development of a gender-based analysis of international law precisely because of the further level of confrontation it is assumed such an analysis would cause. . . .
. . . THE MASCULINE WORLD OF INTERNATIONAL LAW . . .
The Organizational Structure of International Law
The structure of the international legal order reflects a male perspective and ensures its continued dominance. The primary subjects of international law are states and, increasingly, international organizations. In both states and international organizations the invisibility of women is striking. Power structures within governments are overwhelmingly masculine: women have significant positions of power in very few states, and in those where they do, their numbers are minuscule. Women are either unrepresented or underrepresented in the national and global decision-making processes.
States are patriarchal structures not only because they exclude women from elite positions and decision-making roles, but also because they are based on the concentration of power in, and control by, an elite and the domestic legitimation of a monopoly over the use of force to maintain that control. This foundation is reinforced by international legal principles of sovereign equality, political independence and territorial integrity and the legitimation of force to defend those attributes.
International organizations are functional extensions of states that allow them to act collectively to achieve their objectives. Not surprisingly, their structures replicate those of states, restricting women to insignificant and subordinate roles. Thus, in the United Nations itself, where the achievement of nearly universal membership is regarded as a major success of the international community, this universality does not apply to women. . . .
The silence and invisibility of women also characterizes those bodies with special functions regarding the creation and progressive development of international law. Only one woman has sat as a judge on the International Court of Justice and no woman has ever been a member of the International Law Commission. . . .
Despite the common acceptance of human rights as an area in which attention can be directed toward women, they are still vastly underrepresented on UN human rights bodies. The one committee that has all women members, the Committee on the Elimination of Discrimination against Women (CEDAW Committee), the monitoring body for the Convention on the Elimination of All Forms of Discrimination against Women (Women’s Convention), has been criticized for its “disproportionate” representation of women by the United Nations Economic and Social Council (ECOSOC). . . .
Why is it significant that all the major institutions of the international legal order are peopled by men? Long-term domination of all bodies wielding political power nationally and internationally means that issues traditionally of concern to men become seen as general human concerns, while “women’s concerns” are relegated to a special, limited category. . . .
The Normative Structure of International Law
Since the primary subjects of international law are states, it is sometimes assumed that the impact of international law falls on the state and not directly on individuals. In fact, the application of international law does affect individuals . . .. International jurisprudence assumes that international law norms directed at individuals within states are universally applicable and neutral. It is not recognized, however, that such principles may impinge differently on men and women; consequently, women’s experiences of the operation of these laws tend to be silenced or discounted.
The normative structure of international law has allowed issues of particular concern to women to be either ignored or undermined. For example, modern international law rests on and reproduces various dichotomies between the public and private spheres, and the “public” sphere is regarded as the province of international law. One such distinction . . . is the distinction between matters of international “public” concern and matters “private” to states that are considered within their domestic jurisdiction, in which the international community has no recognized legal interest. . . .
At a deeper level one finds a public/private dichotomy based on gender. . . . The public realm of the work place, the law, economics, politics and intellectual and cultural life, where power and authority are exercised, is regarded as the natural province of men; while the private world of the home, the hearth and children is seen as the appropriate domain of women. The public/private distinction has a normative, as well as a descriptive, dimension. Traditionally, the two spheres are accorded asymmetrical value: greater significance is attached to the public, male world than to the private, female one. The distinction drawn between the public and the private thus vindicates and makes natural the division of labor and allocation of rewards between the sexes. Its reproduction and acceptance in all areas of knowledge have conferred primacy on the male world and supported the dominance of men. . . .
How is the western liberal version of the public/private distinction maintained? Its naturalness rests on deeply held beliefs about gender. . . .
Although the scientific basis of the public/private distinction has been thoroughly attacked and exposed as a culturally constructed ideology, it continues to have a strong grip on legal thinking. The language of the public/private distinction is built into the language of the law itself: law lays claim to rationality, culture, power, objectivity -- all terms associated with the public or male realm. It is defined in opposition to the attributes associated with the domestic, private, female sphere: feeling, emotion, passivity, subjectivity. Moreover, the law has always operated primarily within the public domain; it is considered appropriate to regulate the work place, the economy and the distribution of political power, while direct state intervention in the family and the home has long been regarded as inappropriate. Violence within the home, for example, has generally been given different legal significance from violence outside it; the injuries recognized as legally compensable are those which occur outside the home. Damages in civil actions are typically assessed in terms of ability to participate in the public sphere. Women have difficulty convincing law enforcement officials that violent acts within the home are criminal. . . .
What force does the feminist critique of the public/private dichotomy in the foundation of domestic legal systems have for the international legal order? Traditionally, of course, international law was regarded as operating only in the most public of public spheres: the relations between nation-states. We argue, however, that the definition of certain principles of international law rests on and reproduces the public/private distinction. It thus privileges the male world view and supports male dominance in the international legal order.
[The authors cite as an example the international proscription against torture. The Treaty against Torture is dominated by masculine references. The focus on intentional infliction which fulfills a purpose ignores the torture inflicted during random terror campaigns aimed at women and children. The requirement that torture be placed in the public realm excludes much of the torture inflicted on women within the home or by private persons.]
States are held responsible for torture only when their designated agents have direct responsibility for such acts and that responsibility is imputed to the state. States are not considered responsible if they have maintained a legal and social system in which violations of physical and mental integrity are endemic. In its draft articles on state responsibility, the International Law Commission did not widen the concept of imputability to incorporate such acts. A feminist perspective on human rights would require a rethinking of the notions of imputability and state responsibility and in this sense would challenge the most basic assumptions of international law. If violence against women were considered by the international legal system to be as shocking as violence against people for their political ideas, women would have considerable support in their struggle.
The assumption that underlies all law, including international human rights law, is that the public/private distinction is real: human society, human lives can be separated into two distinct spheres. This division, however, is an ideological construct rationalizing the exclusion of women from the sources of power. It also makes it possible to maintain repressive systems of control over women without interference from human rights guarantees, which operate in the public sphere. By extending our vision beyond the public/private ideologies that rationalize limiting our analysis of power, human rights language as it currently exists can be used to describe serious forms of repression that go far beyond the juridically narrow vision of international law. For example, coercive population control techniques, such as forced sterilization, may amount to punishment or coercion by the state to achieve national goals. . . .
. . . TOWARD A FEMINIST ANALYSIS OF INTERNATIONAL LAW
How can feminist accounts of law be applied in international law? Feminist legal theory can promote a variety of activities. The term signifies an interest (gender as an issue of primary importance); a focus of attention (women as individuals and as members of groups); a political agenda (real social, political, economic and cultural equality regardless of gender); a critical stance (an analysis of “masculinism” and male hierarchical power or “patriarchy”); a means of reinterpreting and reformulating substantive law so that it more adequately reflects the experiences of all people; and an alternative method of practicing, talking about and learning the law. Feminist method must be concerned with examining the fundamentals of the legal persuasion: the language it uses; the organization of legal materials in predetermined, watertight categories; the acceptance of abstract concepts as somehow valid or “pure”; the reliance in practice on confrontational, adversarial techniques; and the commitment to male, hierarchical structures in all legal and political organizations.
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NOTES
For more on feminist jurisprudence, see:
Kathryn Abrams, Feminists in International Human Rights: The Changer and the Changed, 21 Berkeley J. Int’l. L. 390 (2003);
Beverly Balos & Mary Louise Fellows, Law and Violence Against Women (1994);
Christine Chinkin, Gender, Human Rights, and Peace Agreements, 18 Ohio St. J. Disp. Res. 867 (2003);
Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women (1990);
Sarah Y. Lai & Regan E. Ralph, Female Sexual Autonomy and Human Rights, 8 Harv. Hum. Rts. J. 201 (1995);
Nancy Levit & Robert R.M. Verchick, Feminist Legal Theory: A Primer (2006);
Catherine A. MacKinnon, Are Women Human?: And Other International Dialogues (2006);
Kate Millett, What Is to Be Done?, 75 Chi.-Kent L. Rev. 659 (2000);
Anne Orford, Contesting Globalization: A Feminist Perspective on the Future of Human Rights, 8 Transnat’l L. & Contemp. Problems 171 (1998);
Elizabeth K. Spahn, Waiting for Credentials: Feminist Theories of Enforcement of International Human Rights, 44 Am. U. L. Rev. 1053 (1995);
Special Issue, Gender, Sexuality and Human Rights, 13 Feminist Legal Stud. 1 (2005);
Barbara Stark, International Human Rights Law, Feminist Jurisprudence, and Nietzsche’s “Eternal Return”: Turning the Wheel, 19 Harv. Women’s L.J. 169 (1996);
Barbara Stark, Nurturing Rights: An Essay on Women, Peace, and International Human Rights, 13 Mich. J. Int’l L. 144 (1991).
-----------------------
[1] The authors wish to thank Duane W. Krohnke, Adjunct Professor, University of Minnesota Law School, assisted by Erin Hanrahan and Mark Lazar,University of Minnesota Law School students, for revisions to this chapter.
[2] See UNHCR, The State of the World’s Refugees 2006,
[3] UNHCR, 2005 Global Refugee Trends, June 9, 2006,
[4] CIA, The World Factbook—Ghana, (last updated June 6, 2006).
[5] This supplementation of information about violence against women in Ghana is based upon U.S. Dep’t of State, Country Report on Human Rights Practices —Ghana, 2003, ; U.S. Dep’t of State, Country Report on Human Rights Practices —Ghana, 2004, ; U.S. Dep’t of State, Country Report on Human Rights Practices—Ghana, 2005, .
[6] Amnesty International, Report 2006,
[7] WAJU (now called the Domestic Violence Victim Support Unit, (DOVVISU)) was established in October 1998 in response to increasing numbers of cases of abuse and violence against women and children. With offices in 12 cities around the country, the WAJU worked closely with the Department of Social Welfare and the Legal Aid Board. As of July 31, 2005, WAJU had recorded at least the following complaints: 4,344 assaults, 1,791 defilements (sexual abuse against minors), 417 rapes, and 279 abductions. But the reported convictions for these offenses is much smaller. From January 2002 through May 2003, 4 assaults, 79 defilements, 0 rapes and 1 abduction were succesfully convicted. Republic of Ghana, Ghana Police Service, .
[8] United Nations Population Fund, Violence Against Women Fact Sheet, , citing Heise L, Ellsberg M, Gottemoeller M. 1999. “Ending violence against women.” Population Reports. Series L, No. 11. Baltimore, Maryland: Population Information Program, Johns Hopkins University School of Public Health, cited in WHO. 2002 World Report on Violence and Health. Geneva: WHO
[9] This supplementation of information about FGM in Ghana is based upon U.S. Department of State reports (see note 5, supra) and upon that Department’s Office of International Women’s Issues’ Report, Female Genital Mutilation—Ghana, June 1, 2001, .
[10] Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (Sept. 13, 2000); reprinted in 1 Afr. Hum. Rts. L.J. 40, entered into force Nov. 25, 2005.
[11] World Health Organization, Fact sheet N°24, June 2000, . See also Third World Women’s Health, Female Genital Mutilation, ; World Health Organization, A Systematic Review of the Health Complications of Female Genital Mutilation, (2001) .
[12] See U.S.Department of Human Services, Female Genital Cutting, . See also World Health Organization, Female Genital Mutilation, .
[13] See Id., see also U.S.A. Reservations to Ratification of the Protocol Relating to the Status of Refugees, .
[14] 8 U.S.C. § 1101(a)(42), see also 8 C.F.R. §§ 208.4, 208.7, 208.9, 208.11-208.16.
[15] States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, March 1, 2006, .
[16] See 8 U.S.C. § 1101(a)(42); see also discussion at p. 56 infra.
[17] PL 108-333, §§ 301, 302, 118 Stat. 1287 (2004). The State Department’s subsequent report to Congress stated that the U.S. was seeking to identify reliable sources to do necessary security background checks on North Korean refugee or asylum applicants and mechanisms for resettlement of North Korean refugees in the U.S. See U.S. Dep’t of State, The Status of North Korean Asylum Seekers and U.S. Government Policy Towards Them, . The Act has other provisions relating to human rights in North Korea.
[18] .
[19] See Ninth Circuit, Immigration Law in the Ninth Circuit—Selected Topics (Asylum, Withholding and the Convention Against Torture), .
[20] See, e.g., Andrew I. Schoenholtz, Migration And Refuge in The Twenty-First Century: A Symposium in Memory of Arthur Helton: Refugee Protection in the United States Post-September 11, 36 Colum. Human Rights L. Rev. 323 (Spring 2005); Elizabeth Amon, 9/11’s long shadow, Nat’l L. J., Oct. 7, 2002, at A1; Matthew J. Gibney, Security and the ethics of asylum after 11 September, 13 Forced Migration Rev. 40 (June 2002) (from The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge Univ. Press late 2002)); William Maley, Receiving Afghanistan’s asylum seekers: Australia, the Tampa ‘Crisis’ and refugee protection, 13 Forced Migration Rev. 19 (June 2002); Monette Zard, Exclusion, terrorism and the Refugee Convention, 13 Forced Migration Rev. 32 (June 2002); Lawyers Comm. for Human Rights, Country by Country Review of Detention Procedures and Practices (Sept. 18, 2002), .
[21] In international law and common parlance, however, the term “refugee” has a much broader meaning than those contained in the 1967 Protocol and §1101(a)(42). The Protocol and statute describe persons who are “Convention refugees.” The 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa, 1000 U.N.T.S. 46, Article I.2, contains a broader definition encompassing persons fleeing “external aggression, occupation, foreign domination or events seriously disturbing public order,” as well as those fleeing persecution on the five status grounds included in the 1951 Refugee Convention. The United Nations High Commissioner for Refugees (UNHCR) has accepted a protection role for persons fleeing such non-persecutory dangers. The media frequently refer to persons fleeing natural disaster and drought as refugees, although they are not so regarded under international law. This chapter will focus upon persons fleeing a risk of persecution rather than generalized violence or other causes of displacement.
[22] .
[23] U.S. Department of State, .
[24] Deborah E. Anker, U.S. Law and Procedure Supplement to: Law of Asylum in the United States 19 (2002).
[25] NACARA provides immigration benefits and relief from removal to certain Nicaraguans, Cubans, Salvadorans, Guatemalans, nationals of former Soviet bloc countries and their dependents.
.
[26] 8 C.F.R. § 3.1(a)(7)(ii)(A)-(B), now 8 C.F.R. §§ 1003.1, 1003.2.
[27] Dorsey & Whitney, L.L.P., Board of Immigration Appeals: Procedural Reforms To Improve Case Management, July 22, 2003 (analysis of adverse effects of September 2002 BIA Procedural Reforms)
[28] E.g., Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003).
[29] See also, e.g., Muhur v. Ashcroft, 355 F.3d 958 (7th Cir. 2004); Zwedie v. Ashcroft, 381 F.3d 804 (8th Cir. 2004).
[30] .
[31] (last visited June 14, 2006).
[32] ; see also UNHCR Policy on Refugee Women and Guidelines on their Protection: An Assessment of Ten Years of Implementation 1-2, 69 (2002).
[33] See also Powell, Lawrence, Mwangi-Powell & Morison, Female genital mutilation, asylum seekers and refugees: the need for an integrated UK policy agenda, 14 Forced Migration Rev. 35 (2002) (discussing the need in UK for culturally sensitive care of women who have undergone, or at risk of undergoing, FGM); Foundation for Women’s Health, Research and Development, (a U.K. NGO dedicated to improving the health and well-being of African women and girls, including stopping FGM).
[34] The UNHCR also has provided additional useful commentary on the “membership in a particular social group” ground. (UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/02). . In addition to elaborating some of the above points from the Guidelines regarding gender, this document states that States have recognized women, families, tribes, occupational groups and homosexuals as constituting such a protected group (¶ 1); that the proper interpretation of the “group” ground must be consistent with the object and purpose of the Convention and not render other grounds superfluous (¶ 2); and that persecutory action toward a group may be a factor in determining the viability of a group in a particular society (¶ 14).
[35]
[36] See Documents and Information on Rodi Alvarado's Claim for Asylum in the U.S.,
[37] See ..
[38] An amicus brief in the Ninth Circuit argued that recognizing a family as “a particular social group” was important for protection and fair treatment of women in asylum cases. Amicus Curiae Brief on Rehearing En Banc, Thomas v. Ashcroft (9th Cir. Nov. 24, 2004), available at .
[39] The National Task Force to End Sexual and Domestic Violence Against Women, Violence Against Women Act 2005 Reauthorizatio,. .
[40] . There are 18 nations that have ratified, including Benin, Cape Verde, Comoros, Djibouti, Gambia, Lesotho, Libya, Malawi, Mali, Mauritania, Mozambique, Namibia, Nigeria, Rwanda, Senegal, Seychelles, South Africa, and Togo. .
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