Forced marriage and the exoticization of gendered harms in United States asylum law.

• Author: Millbank, Jenni

Refugee law scholars and advocates have devoted a great deal of attention to gender-related persecution since the 1980s. The Office of the United Nations High Commissioner for Refugees (UNHCR) first contended that gender was a valid basis for refugee claims in 1985 and released its original guidelines for the protection of women as refugees in 1991. (1) Critical scholarship has focussed on refugee law's bias towards recognition of masculinised experiences and on how its categorizations confine women to narrow, victimized identities. (2) After more than twenty years of concerted effort, one might expect to see an increasingly nuanced refugee jurisprudence concerning gender. With this in mind, we began a study of forced marriage as a basis for refugee claims. (3)

While claims of forced marriage or pressure to marry as the, or a, main basis of persecution represent only a tiny portion of refugee claims overall, they provide an illuminating sliver reflecting the major recurring themes in gender and sexuality claims from recent decades. Forced marriage is an important case study of gender in refugee law because it involves longstanding and unambiguous human rights standards, it arises in diverse settings and the harms associated with it take many forms and impact differently depending upon the gender and sexuality of those involved. Our examination of these cases reveals the profound schism between human rights norms and refugee law's protections.

While we acknowledge that there are many valid criticisms to be made of international human rights discourse, our analysis in this article reflects our belief that meaningful consent to marriage is nevertheless a gendered human rights issue of vital importance. We are also aware of concern that policymakers and others either completely conflate arranged and forced marriage or else pose (consensual) "arranged" and "forced" marriages as if they are diametric opposites; whereas consent to all kinds of marriages may take place within a continuum of pressure and coercion. (4) In this article we intend "forced marriage" to include any marriage in which one or both participants have been deprived of the opportunity of free or meaningful consent through threats, including emotional and economic threats, pressure or coercion. Our research has affirmed our understanding that refusal to marry is a flashpoint for expressing non-conformity with expected gender roles for heterosexual women, lesbians and gay men. We proceed from the premise that the state has a role in protecting, and indeed a duty to protect, consent to marriage. This role extends to responding to claims for assistance from citizens and, in some circumstances, non-citizens.

This paper presents results from our study of 168 refugee decisions where part of the claim for refugee protection concerned actual or threatened forced marriage. We gathered every decision available in English that meets these criteria during the past fifteen years from Australia, Canada, the United Kingdom and the United States (the "receiving countries"). (5) In the present discussion, we highlight our findings from the cases from the United States (the American Case), while detailed findings regarding the broader international data set are published elsewhere. (6) While there are notable differences in the cases arising from each receiving country we studied, the American cases stand out as a group distinct from the rest. We found a marked reticence on behalf of American decision makers to grapple with gendered harms in general and forced marriage in particular. Where the American cases do analyze harm as gendered, the discussions are markedly more focused on exoticized elements, such as foreign cultural practices that tend to distance and objectify women, than do decisions from other jurisdictions. The American decisions also tend to describe such practices in prurient detail. Furthermore, the American cases are notably more insular than those from other countries. Among the forty-eight American decisions in our data set, we did not find a single reference to a non-American decision or to an international human rights standard. This may be the norm in American refugee law, but it is certainly not the global norm and is one of many factors demonstrating that the United States' asylum law is alarmingly out of step with developments elsewhere.

Our analysis treads a fine line between a temptation to generalize and the impossibility of doing so. In the United States and the United Kingdom in particular, we have access to a very small number of decisions compared to the total number of refugee determinations made during this time period. Our American analysis is limited especially by scarce access to Board of Immigration Appeals (BIA) decisions. The BIA, the major refugee decision making agency in the United States, benefits from considerable legislative and judicial deference. Limited access to these rulings means a serious lack of transparency in American asylum law. We have no reason to believe that the decisions we have found are atypical of American jurisprudence generally (as even in this electronic age it remains the case that important and leading decisions are reported and that the very best and very worst of decisions become well known in advocacy circles), but we cannot be certain. We cannot, of course, draw any quantitative conclusions about United States decision making. We present this analysis for what it is: a glimpse of what it is currently possible to know about American refugee decisions regarding forced marriage.

The aim of this paper is to analyze the American decisions against the comparative backdrop of our international data set. We present this analysis in four steps. The first section compares recent attention to forced marriage as a domestic policy issue in European law with fledgling American developments. The second section outlines the framework of American asylum law and policy with regard to forced marriage through the development of gender analysis guidance documents incorporating international human rights standards. This section also explores the failure to integrate these standards through case studies of two high-profile cases: In re Kasinga in 1996 and Gao v. Gonzales in 2007. (7) Following this, we examine how the key requirements of refugee jurisprudence--persecution, particular social group, and nexus--have been approached in the American forced marriage cases. Through this examination we compare American cases with those from the international data set. Finally, we rum to how successful American claims differ (or not) from successful claims elsewhere.

1. COMPARING AMERICAN AND EUROPEAN FORCED MARRIAGE DEVELOPMENTS IN DOMESTIC IMMIGRATION AND FOREIGN POLICY

   Public and political concern over forced marriage emerged in Europe in the early 1990s, at least a decade before any interest in this issue developed in the United States. The policy trajectory varied in different European countries, but in each case it arguably arose from an implicit understanding of vulnerable brides as "ours" (nationals or dual nationals), while imposed grooms are "theirs" (migrant spouses). This generated an intense early focus on immigration restrictions as the "answer" to the problem of forced marriage. (8) This is distinct from the contemporary American discourse where, by contrast, forced marriage concerns center almost exclusively upon child marriage, an issue which is presented as being geographically confined to "developing countries." We will consider the importance of this contrast after briefly surveying the European developments.

   Of all European countries, Denmark directed its reform energies concerning forced marriage most explicitly and continuously towards immigration restriction. Legal changes limiting family reunification immigration provisions began in Denmark in 1998 and were tightened again in 2000, 2002 and 2004. (9) The impact of such immigration law changes reached far beyond forced marriages, but were justified on the basis that the greatest vulnerability was faced by young people with little independence from their families who were being coerced into marriages with overseas-born, often older, spouses from the same ethnic background. Only after most of these restrictive regulations were in place did Denmark produce an "Action Plan on Forced, Quasi-Forced and Arrangement Marriages" with proposals for broader empowering strategies such as counselling, education for teachers and case workers, residential facilities and a research program. (10) In contrast, Norway pursued an inverse trajectory, beginning in 1998 with an "Action Plan" that did not focus on immigration restriction (indeed it suggested liberalizing immigration policies might actually reduce incentives to forced marriage), (11) The initial 1998 Norwegian plan focused on education and support for victims. Immigration law changes were not introduced in Norway until 2003, and were minimal in comparison with Denmark. In the same year, a specific criminal provision on forced marriage was introduced in Norway, a move replicated by Germany in 2005 and Belgium in 2007. (12) During the same time period, France made several changes to procedural requirements to ensure genuine consent for marriage. (13)

   The United Kingdom provides an interesting example of the development of a multifaceted approach shaped by community and feminist involvement. While initial action focused on immigration, including raising the age requirements for spousal visas, it rapidly moved in a number of other directions. Rather than criminalization, the United Kingdom created a range of new civil remedies under the Forced Marriage (Civil Protection) Act, which passed in 2007 and came into effect in December 2008. (14) The centrepiece of this law is the creation of a "forced marriage protection order" designed to protect a person at risk of forced marriage or who has already...