Background
In the Refugee Act of 1980, the United States adopted into domestic law key provisions of the UN Convention relating to the Status of Refugees, to which it had become a party in 1968. In compliance with its obligations under that treaty, U.S. law defines a refugee as a person who has suffered persecution in the past or who has a “well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group (PSG), or political opinion.”
From the enactment of the Refugee Act of 1980 until the 1990s, asylum seekers fleeing gender-based violence were routinely denied protection and status in the United States. Serious harms faced by women, including domestic violence, female genital mutilation (FGM), psychological harm, trauma, and rape, went unrecognized in U.S. asylum law until advocacy organizations, including the Harvard Immigration and Refugee Clinic (HIRC), began representing women asylum seekers in increasing numbers and transforming underlying institutions and the law.
In 1990, when U.S. asylum procedures were formally established, our asylum law, like international law generally, was trapped within the public/private distinction—with harms disproportionately affecting women relegated to the “private sphere.” In one infamous case, Campos Gardado, decided during the period of 1990᾽s civil wars and genocides in Central America, a Salvadoran woman who was gruesomely raped and forced to watch her uncle, the chairman of the local agrarian cooperative, and others hacked to death while the attackers shouted political slogans was refused asylum, with the court denying the political context and nature of the sexual assaults and killings. In a case involving a Salvadoran army sergeant’s rape and virtual enslavement of a woman working for him, threatening to turn her over to the governing military as a “subversive” if she did not comply, one federal judge opined that it would “outdo Lewis Carroll to find that male domination in such a personal relationship constitutes political persecution. Rather, this was just an example of rapacious assault or his pathological display of lover’s wooing.” The maverick majority opinion in that case, Lazo-Majono v. INS, authored by the late Judge John T. Noonan Jr. of the Ninth Circuit and recognizing that the claimant’s resistance and flight constituted an expression of political opinion, was way ahead of its time, but it inspired many of us to understand the law differently and believe that it could change.
The Board of Immigration Appeals’ 1985 decision in Matter of Acosta laid the formal foundation for gender asylum claims in the United States and internationally. In that decision, the board explored the Refugee Convention’s ground of membership of a particular social group and reasoned that, based on principles that united the other grounds in the refugee definition, a PSG is defined by a “common, immutable characteristic” that “members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences,” citing sex as one example. That same year, the United Nations High Commissioner for Refugees Executive Committee adopted Conclusion No. 39, recognizing that women asylum seekers who fear harsh or inhumane treatment for gender-based reasons may be considered a PSG under the convention.
In the late 1980s and early 1990s, collaboration across borders among women’s human rights activists, immigration rights advocates, and scholars led to positive changes. During this period, the Women’s Refugee Project was formed, growing out of a partnership among the HIRC, Greater Boston Legal Services, and Harvard Law School’s Human Rights Program to advocate in various ways and before different adjudicatory bodies for a gender sensitive interpretation of refugee law. The HIRC started participating actively in the training of asylum officers and indirectly in the development of training materials.
At the same time, the revelations of mass rapes in Bosnia strengthened a growing international women’s rights movement, as evidenced by the UN’s adoption of the Declaration on the Elimination of Violence Against Women. In 1995, refugee advocates participated in the Fourth Conference on the Status of Women in Beijing China, which made famous the theme of “women’s rights are human rights,” the title of First Lady Hillary Clinton’s opening speech. We were successful in getting recognition of gender-based persecution in the platform of action.
During this period, asylum and refugee lawyers campaigned for U.S. and international tribunals and courts to recognize gender violence as persecution and feminism as a political opinion meriting protection. In 1993, Canada issued its historic Gender Guidelines that served as a model for the United States and other countries around the world. The Canadian Supreme Court issued its historic ruling in the Ward case, adopting a human rights standard for assessing persecution in refugee cases. That same year, 1993, then Judge Samuel Alito of the Third Circuit Court of Appeals in Fatin v. I.N.S. upheld the denial of asylum to an Iranian woman who refused to wear the chador that she considered a sign of support for the Khomeini government. We filed an amicus brief in support of her claim. Then Judge Alito found that thin record evidence did not support her claim but, he reasoned, feminism was political opinion, refusal to wear the chador could be an expression of a political opinion, that gender could define a PSG, and generally that women who feared or were being subjected to serious abuse because of their gender are eligible for protection. This laid the groundwork for asylum for hundreds of women based on PSG, political opinion, as well as on other grounds.
During this same period, following the first coup against Haitian President Jean-Bertrand Aristide in 1991, the HIRC, among other organizations, began representing Haitians who had fled their country and were seeking asylum in the United States. Among our clients were a large number of women who told stories that clearly revealed the gendered nature of the harm they had suffered in Haiti. The board addressed this issue of gender-based violence in Haiti in its 1993 decision in Matter of D-V-, granting asylum to a Haitian woman who had been raped and beaten in her home by members of the security forces because of her support for the deposed President Aristide—the first administrative precedent gender asylum decision.
In 1993, the Canadian immigration authorities issued Gender Asylum Guidelines, administrative instructions for adjudicators that addressed procedural and substantive concerns in determining the claims of women applying for refugee protection. U.S. and Canadian non-governmental organization colleagues subsequently collaborated, drafting similar guidelines for the United States, which became the basis for the U.S. government’s gender guidelines, issued in 1995. These guidelines incorporated human rights principles and addressed both procedural issues and substantive standards in the adjudication of women’s asylum claims. Although these guidelines were sub-regulatory pronouncements by the U.S. government, they were cited and relied upon by the board and federal courts in precedential decisions. As a result, the guidelines became normative and influential. Following the example of Canada and the United States, several other state parties to the Refugee Convention, including Australia and the United Kingdom, subsequently developed similar guidelines.
In 1996, the U.S. Board of Immigration Appeals issued its second precedential gender asylum decision, Matter of Kasinga, which recognized female genital mutilation as a basis for asylum. Around the same time, high courts and tribunals in other countries, including New Zealand, the United Kingdom, and Australia, issued positive and ground-breaking gender asylum decisions. These decisions largely focused on the failure of states to meet their obligations of protection of women from gender-based violence and highlighted the bifurcated nature of persecution, for example, that persecution involves two prongs—serious harm and failure of state protection—recognizing claims in which states either cause the harm or fail to protect from harms caused by non-state actors.
Then, in 1999, a lightning rod board precedent, Matter of Rodi Alvarado, complicated the landscape. In a highly controversial decision, the board reversed the immigration judge decision and denied asylum to Rodi Alvarado, a Guatemalan woman fleeing a violently abusive relationship. The board’s decision called into question whether domestic violence could serve as the basis for an asylum claim; the issue of whether gender could define a particular social group was also left in limbo.
As a result, advocates increasingly began relying on alternative legal theories, winning claims brought under various protected grounds, including political opinion and religion. Shortly after denying Alvarado’s claim, the board, in a precedent decision, Matter of S-A-, granted asylum based on religion to a young Moroccan woman who was severely physically abused by her father. The board also recognized the gender aspects of the claim, citing the Gender Asylum Guidelines.
Many advocacy groups joined in an effort to reverse the board’s decision in Rodi Alvarado’s case; our clinic participated, filing an amicus briefing signed by 187 organizations and law professors. As a result of these collective efforts, then Attorney General Janet Reno vacated the Rodi Alvarado decision, with orders for the board to issue a new decision in light of proposed regulations. Importantly, women within the relevant government agency, then the Department of Homeland Security, advocated for the department to take a more favorable position. The Rodi Alvadrado case has a long procedural history and was undecided until 2009, when the case was sent back to the immigration judge who granted asylum. However, the immigration judge only formally granted that claim, with no reasoning or explanation, and therefore the decision applied only to Rodi Alvarado, not to any of the other hundreds of women whose cases were still pending. Alvarado was represented by the Center for Gender and Refugee Studies (CGRS), now based at the University of California Hastings College of the Law.
For 10 years, while the Rodi Alvarado case was left undecided, advocates continued winning many individual gender asylum cases based on gender as a particular social group, race, religion, and especially on feminism as a political opinion. We argued that women facing domestic violence resisted in various ways, and that resistance, we maintained, itself constituted an expression of a political opinion. As advocates won case after case at lower levels, we put pressure on the board to change its position.
In 2012, the board officially opened the way for formal change—asking for amicus briefing on the central question of whether domestic violence can serve as the basis of an asylum claim. Finally, two years later—in 2014—the board issued a precedent decision in Matter of A-R-C-G-, granting asylum, recognizing that serious physical harms committed in the context of a domestic relationship can constitute persecution where state protection is unavailable, and that the PSG ground can apply in such cases. A-R-C-G-was not a perfect decision. The board’s PSG formulation is convoluted: “married women who are unable to leave their relationship.” We did not succeed in establishing the core principle that gender itself could define a PSG—a principle the board had accepted back in 1985 with Acosta and then backed away from—but we won a key point: that violence based on gender in its private, though most ubiquitous setting—domestic relationships—could be the basis for protection. This A-R-C-G-decision is the one that the attorney general reversed this in June 2018, in his decision in Matter of A-B-.
Conclusion
These are difficult times, but there is reason for optimism that in the end we are going to reverse the A-B-decision, though strategies may be different or more diverse than the “bottom-up” approach we used before, where we found spaces in the thin jurisprudence to assert novel normative claims and were able to build favorable institutional cultures at the ground level. The academic and advocacy community is hugely different and certainly larger than it was in the early days when we were preparing the groundwork for gender asylum law. We are connected through numerous professional associations and, of course, the internet.
In December 2019, the American Civil Liberties Union and CGRS brought a class action lawsuit, Grace v. Sessions, which successfully challenged A-B-as it applies to border credible fear screening interviews, where it is now having its greatest impact. There have already been other important decisions, for example from the First Circuit Court of Appeals in Rosales-Justo v. Sessions, rejecting the attorney general’s attempt to rewrite the standard of state protection in such cases—requiring claimants to prove the state is “completely helpless” to protect against harms by non-state actors, like domestic abusers or gangs. Just this year, the Second Circuit Court of Appeals issued a ground-breaking opinion, Hernandez-Chacon v. Barr, holding that a Salvadoran woman who had refused to submit to sexual violence by a Mara Salvatrucha gang member established persecution on account of her political opinion of resistance to the norm of female subordination that pervades El Salvador.
I am confident these efforts will deepen and broaden. And I am inspired daily by the interest and tenacity of our law school clinical students, forming the next generation to engage in this struggle for the development of a principled body of asylum jurisprudence and basic human rights to fair hearings and the rule of law.
