Human Rights Brief
A Legal Resource for the International Human Rights CommunitySpring 1996
POINT/COUNTERPOINT
Point/Counterpoint is a regular feature of The Human Rights Brief. The purpose of the section is to encourage meaningful, intellectual discussion on contemporary issues in human rights and humanitarian law through the presentation of two diverse, though not necessarily opposing, opinions on the subject at hand. Commentaries for the Point/Counterpoint section are generally solicited by The Brief, however, the Board of Editors welcomes all submissions, comments, and suggestions. The newsletter does not facilitate the exchange of the authors’ compositions prior to publication. The views expressed in the Point/Counterpoint section are those of the authors and do not necessarily reflect those of The Human Rights Brief, the Center for Human Rights and Humanitarian Law, or their Directors or staff.
Gender-Based Criteria for Asylum
by Gabriel Eckstein and Gregg Epstein
Since the end of World War II, the subject of women's human rights has expanded far beyond its traditional realm. With this expansion, a debate has emerged concerning whether or not the values and mores championed by human rights activists, primarily of Western origin, threaten the cultural integrity of various peoples around the world.
This debate has become especially vehement in the United States where gender-based violence is a contentious issue in the context of asylum. Those who favor gender-based criteria for granting asylum generally contend that violence against women violates human rights and therefore can never be justified by cultural integrity. Those who oppose gender-based criteria argue that regardless of how onerous the violence may be, asylum must be restricted for true political refugees and must not be made available to those fleeing a social order they do not like.
The authors of this issue's Point/Counterpoint consider whether gender-based violence should be used as a grounds for granting asylum.
Point: Gender Asylum Reflects Mistaken Priorities
Dan Stein is Executive Director of the Federation for American Immigration Reform (FAIR), a Washington-based organization. Prior to heading FAIR, Mr. Stein was the Executive Director of the Immigration Reform Law Institute, a public interest litigation group that represented organizations in immigration and administrative law matters. He is a graduate of Indiana University and of Catholic University School of Law and has published many articles on immigration.
Counterpoint: Women, Just Implementation of Asylum Policy, and Our Commitment to Human Dignity and Freedom
John Linarelli, a graduate of the Washington College of Law, is partner in the Washington, DC law firm of Braverman & Linarelli. He was counsel in In the Matter of M.K., a case of first impression in which a U.S. Immigration Court granted asylum on the basis of forcible female genital mutilation. Mr. Linarelli is also an adjunct professor at Georgetown University Law Center and Catholic University School of Law.
Gender Asylum Reflects Mistaken Priorities
by Dan Stein
For any nation's political asylum policy to enjoy sustained public support, it must be both practical and administratively feasible. Under this test, the current move to establish "gender-based asylum policies ultimately fails.
The reasons must be understood outside the volatile and emotional nature of the topic itself. We can all agree that violence of any kind perpetuated against women is an evil in itself to be avoided if possible. When the motive appears to be political, based on some sort of retaliation that exploits a woman's particular vulnerabilities, the violence takes on new dimensions.
But the question arises: What is the purpose of political asylum? Is it to provide permanent resettlement for a large number of people seeking to escape regressive cultural and civil norms, or is it a program providing temporary protection for those seeking positive political change back home?
The statutory definition of asylum in the U.S. calls for granting protection to those in this country demonstrating a well-founded fear of political persecution on account of race, religion, nationality, membership in a particular group or political opinion. This definition provides a permanent asylum to anyone who meets it. In practice, however, the general statutory definition has proved difficult to implement consistently. And it has an impressive breadth, range, and permanence to it that makes it vulnerable to exploitation by broad-based groups seeking to fit within its umbrella.
A strict reading suggests that entire groups -- numbering perhaps in the millions -- could qualify for asylum under the legal definition. But providing permanent resettlement to millions seeking to leave countries because of broad-based political, ethnic, or religious persecution is clearly far more than the American public has bargained for. Polls and focus groups suggest that most Americans are proud of an asylum policy that, they believe, provides temporary protection for those working for positive political change back home. At all times, there is an implied expectation that most asylum seekers will go home when it is safe to do so, even though actual asylum grants in the United States are effectively permanent.
In actual practice, few asylees ever go home. Groups, such as Haitians, Nicaraguans, Salvadorans, and some Chinese nationals, after entering the United States illegally, have fought vigorously for the same broad-based treatment as asylees as Poles, Jews from the former Soviet Union, certain Indochinese ethnic groups, and others who have entered the U.S. as refugees since 1980.
At the same time, the number of new asylum claims has skyrocketed from several thousand a year fifteen years ago to about 150,000 a year now. Backlogs and administrative delays have created incentives for persons entering illegally to use the asylum system to delay deportation.
Fueling further pressure on the system is the on-going effort by various human rights activists to expand the definitions of political asylum to include cultural asylum, sexual preference asylum, and, of course, gender-based asylum. All three are potentially open-ended categories unsuited to a case-by-case asylum system under rigorous administrative controls.
Given the growing pressures on the system, the question is whether we can adjudicate hundreds of thousands of asylum claims each year using such broadly defined asylum categories without unleashing a new, sidebar immigration program?
Gender asylum is potentially the biggest of the categories. Asylum advocates claim that there are special considerations for women that make particularized legal standards appropriate. Retaliatory rape, gang rape, beatings, assaults, and related violence may have a political dimension, they say, that makes it appropriate to consider the decision to flee as a flight from officially-sanctioned persecution. This is especially so, they say, where police refuse to intervene and protect the women in domestic situations. Other forms of gender-based persecution, advocates say, include coercive arranged marriages, coercive abortions, the loss of marriage-based property rights, and cultural practices like female genital mutilation (a centuries-old practice).
Each of these practices should shock the conscience of any student of Western values and civilization. And no doubt these are broad-based civil crimes and cultural norms that can disproportionately affect women over men in these societies, especially where there is a failure of civil society to intervene to protect the woman in abusive domestic situations.
But much as we would like to see these practices halted, is asylum policy the place to fight the battle over changing broad-based civil norms, many of which have been in place for centuries? Where is the line between protecting persons and engaging in cultural imperialism -- telling other countries how they should think and behave? And can our asylum policies entertain on an individualized basis claims of this sort without overwhelming the system with fraud and abuse?
I argue no. Asylum is designed to provide people protection from governments, not prevailing cultural norms -- no matter how much we may dislike them. Our asylum system should operate to help people who are in fear of their lives or fear politically-oriented reprisals because of past political actions. This asylum for mankind (as Thomas Paine called it) must also be sensitive to special considerations affecting women. But practical limits in today's world mean that it also must, in the modern world, serve only as a place for those needing temporary protection while working for positive political change back home. Much as we would like to, we cannot accommodate those who would like to live under a different system of beliefs and cultural practices, much as we ourselves would like to see them changed.
Nor can we make disagreements with the peculiar anti-woman biases of regressive political and civil systems a basis for granting asylum to a particular woman who believes she is unfairly treated by that system. A criminal offense, rape, for example, does not become political merely because the local political system fails to prosecute the offense -- even for political reasons.
Then there is the question of veracity and fraud. Many gender-based claims appear to have fact patterns that make it difficult for the trier of fact to verify the claim. Allegations that local thugs retaliated by rape against a woman because of her brother-in-law's political activities -- however much they may tug at the heartstrings -- can be very hard to verify, especially if the claimant is from a country where documentary records are poorly maintained. Similarly, a recent surge in claims of fear of past or future coercive abortion and sterilization by claimants from China demonstrate who difficult it is to verify such claims. All too often, ideological advocates are prepared to accept the factual allegations at face value, but how can the trier of fact (the immigration judge) verify this information when the incident took place in a tiny rural village 15,000 miles away?
Again, I would argue that asylum policy is not the place to battle the world's cultural, political, and ethnic fault lines. We should try to spread our Western values through cultural exchange, mass communications, and diplomatic pressure. But we cannot save the world through immigration. It is enough that we try to help those in need by admitting a fair share of refugees each year. We also provide asylum to many who are unable to return home because of past or present political activities. But to open up a new avenue for broad-based asylum claims invites a politicization of the process and a high degree of fraud.
Women, Just Implementation of Asylum Policy, and Our Commitment to Human Dignity and Freedom
by John Linarelli
Female genital mutilation, bride burning, rape, mass rape, sexual abuse, spousal abuse, infanticide, forced marriage, child marriage, slavery, forced abortion, forced pregnancy. These are just some of the atrocities that are inflicted upon women around the world. Many of these atrocities easily rise to the level of torture as defined in the Torture Convention. These atrocities violate fundamental, nonderogable human rights. A woman s defiance of norms imposed upon her by the dominant social order in her country, moreover, may be a serious breach of the social and political order in her society, and can result in severe persecution.
The United States and other countries are finally acknowledging that these long-standing abuses of women s human rights are grounds for asylum.
Asylum Law Encompasses Persecution of Women
On May 26, 1995, the U.S. Immigration and Naturalization Service (INS) took the momentous step of issuing Gender Guidelines. Recognition of the plight of women was long overdue. The Guidelines recognize well-established human rights norms condemning persecution of women, as reflected in the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the United Nations Declaration on the Elimination of Violence Against Women, and Guidelines and other international instruments.
Recognition of women s claims in no way expands the scope of asylum law. Although women face unique forms of persecution, their persecution provides no less legitimate grounds for asylum than the persecution men face. Asylum law protects more than the steryotypical male asylum applicant -- the educated male elite fleeing communism.
Women face persecution generally on account of political opinion or membership in a particular social group. Political opinion can include a woman s attitude about her government, or her opinion on the treatment of women in her country, culture or social, religious or ethnic group. Political opinion can include a woman s opposition to a law or custom that oppresses women in her country. Political opinion can be imputed to a woman based on the perception of members of the established socio-political structure that she holds inappropriate views because of her deviation from the prescribed roles.
Women often are prohibited from entering into formal political roles, such as those involving prominence in public affairs or in the military. Their political persecution is accomplished by different means, often through sexual violence. Rape or genital mutilation, for example, often are forms of political violence designed to subjugate women politically.
In many women s cases, the government is complicitious, unwilling to take any action and satisfied with a status quo that harms women. Such government inaction constitutes official persecution.
Often, no clear distinction exists between the personal and the political. Politics must be examined in a comparative context that emphasizes functionality and not formalism. The disciplines of comparative law and comparative politics -- disciplines firmly grounded in the curriculums of U.S. law schools and universities -- must be used to examine political persecutions. In many countries, the social order and cultural norms take the place of the political system, rule of law, and the judicial system. Binding norms are manifested socially and not politically or judicially. Governments cannot hide behind ignorance of these tenets to deny women s asylum claims.
Women s claims are relatively recent for various reasons. Women have suffered long-standing forms of persecution that are only now being acknowledged. Asylum cases have developed on the basis of male experiences. It is often extremely difficult for women to discuss, in the detail necessary to prove their case, some of the physical, mental, and emotional harms inflicted upon them, particularly when they must do so in a foreign country and in a foreign culture before male interpreters, male INS officers, male lawyers, and male family members, often in the cold setting of an administrative courtroom.
Debunking Cultural Imperialist Arguments
Grants of asylum to women do not implicate concerns about the imposition of Western values on other cultures.
Human rights are universal. They are to be enjoyed equally by the man in New York City and the woman in Lagos. Broadly accepted human rights instruments provide that culture cannot justify persecution of women. Much of the persecution of women is incredibly harmful and traumatic, physically, mentally, and emotionally. In the words of Alice Walker, torture is not culture. Arguments that the forcible cutting off of a girl s clitoris and removal of her labia minora by an intoxicated adult with a dirty razor should be a protected cultural practice is a particularly noxious argument. Such violence in any legal, political, cultural, or social system is wrong.
Applying asylum law consistently with international human rights obligations does not result in any imposition of our values on others. In the asylum context, the asylee has chosen to espouse values different from her own society and to flee persecution. Women asylees are not saying change conditions in my country. They are simply saying please do not send me back to be persecuted. Abstract theoretical concerns about imperialism should not have a privileged position over the pleas of women for protection. Responding to their pleas is the least the U.S. can do.
Whether or not gender-based claims were considered in the promulgation of the Refugee Convention or of domestic implementing law is irrelevant. The Refugee Convention was drafted at a time when the memories of the Holocaust were fresh in the minds of the international community, and the Cold War was in its early, more frightening stages. Circumstances change. Slavery, for example, was once upheld in the law of many U.S. states. The Thirteenth Amendment to the U.S. Constitution abolished slavery, and the Fourteenth Amendment granted equal protection to the former slaves and their descendants. Still, civil and political rights were a long time coming. The Fourteenth Amendment was ultimately applied to require equal protection of women. So too, human rights law has evolved to recognize that universal human rights encompass women s rights. It has been a long time coming, but asylum statutes are now being properly interpreted to recognize persecution that has always existed but which has been improperly ignored.
Those who assert cultural imperialism deny the validity of American values grounded in human dignity and freedom. Cultural relativist defenses to human rights abuses are typically articulated by oppressive nondemocratic regimes. Established tenets of Western Civilization mandate clear distinctions between right and wrong. The argument for gender-based asylum is based, at least in part, on the idea that there are wrongs that cannot be justified under the mantle of culture. This is a peculiarly American ideal. We have been the leaders in the human rights movement and in bringing morality, ethics, and openness to relations between nations. These American ideals should not be abandoned to avoid our international and domestic legal obligations towards persecuted women.
Refuting Floodgate Arguments
The argument that recognizing the persecution of women in the asylum law would cause a massive flight of women to the United States is unfounded.
Canada promulgated gender guidelines in March 1993. Since then, there has been no increase in the number of women s asylum claims in Canada, despite that Canada provides a more hospitable country for asylees than the United States. Similarly, since the promulgation of the INS Gender Guidelines, no real increase has occurred in the number of women asylum claims in the United States. Asylees on the whole probably comprise the smallest group of immigrants.
Asylum is an individualized remedy. The size of the group being persecuted is irrelevant. The number of males fleeing political oppression during the Cold War, for example, was very large. Grants of asylum came relatively easily to these men, despite the large numbers of male dissidents living under oppressive regimes. Great numbers of similarly situated persons corroborate an asylum claim, rather than detract from it.
The requirements of U.S. asylum law are stringent. Contrary to misperceptions about asylum, one cannot simply walk into the INS and say I want asylum. Asylees must prove, among other things, a well-founded fear of persecution, or severe past persecution, on account of membership in a particular social group, or on account of political opinion, race, nationality, or religion. The INS has reviewed women s cases rigorously.
The overwhelming majority of women around the world cannot flee their regions of persecution. Many women are unable or unwilling to depart from their country, while others may not feel that they have been persecuted. Those able to flee may seek lawful immigration through employment or family ties. When the stringent requirements for asylum are examined in the context of the extremely sensitive nature of a woman s claim, women will likely view asylum as a last resort and claim asylum only if they have a well-founded claim and are serious about it. This is particularly so when experienced counsel is involved.
Arguments that women may obtain asylum through fraud are demeaning and inappropriate. Why should a higher standard be applied to women? Why are women more dishonest than men? It is impossible to fake physical trauma such as a genital mutilation. The INS has stringent standards and procedures designed to discover fraud in any claim before it, regardless of whether it is for asylum or for a visa for a renowned scientist. These standards should be applied fairly to all applicants regardless of their status in life.
Conclusion
America is an immigrant nation. Recognizing the plight of immigrant women is just one chapter in our long history of promoting the freedom and dignity of the individual. There is nothing more American than this. I can think of no better way to celebrate our American values than to hear the pleas of women facing persecution.
The proper citation for this article in the Human Rights Brief Volume 3, Number 3, beginning at page 12 is: 3 No. 3 Hum. Rts. Brief 12 (1996).
