From China's One-child Policy to Central America's Gender-based Violence Epidemic an Argument for Expansive Application of the "coercive Population Control" Political Opinion Ground

• Publication year: 2021

Sylvia D. Miller^*

Abstract: This article discusses how certain asylum seekers fleeing gender-based violence may be able to assert a claim based on per se political opinion under the coercive population control prong of INA § 101(a)(42). This prong was written for—and has been almost exclusively applied to—victims of China's one-child policy. However, this article argues that it could, in some instances, apply to individuals seeking asylum based on gender-based harm, such as intimate partner violence (IPV) or rape committed by non-state actors. Given the difficulty of raising these kinds of cases based on membership in a particular social group—both before and after Matter of A—B— the article discusses the promise and potential hurdles of asserting a claim using the per se political opinion ground.

Introduction

The details vary, but the story repeats. The boyfriend of a young Guatemalan woman starts abusing her when she tells him she is pregnant; he pressures her to get an illegal abortion and attacks her with a knife when she refuses. An indigenous child in a rural village is raped by her family's employer; when he learns she is pregnant he gives her abortifacient herbs and beats her in the abdomen when she refuses to take them. The partner of a young woman in El Salvador threatens to kill her unless she terminates her pregnancy with black market drugs; she complies out of fear. In Honduras, a teenage girl is repeatedly raped and ultimately impregnated by a fellow student; when she gives birth after refusing to terminate the pregnancy, the man who raped her violently attacks her and the child.¹

These women all fled to the United States and submitted asylum applications in different immigration courts. They alleged past persecution on account of membership in various gender-based particular social groups, but also on account of their political opinion—refusing to abort their pregnancies—using the "coercive population control" prong of INA § 101(a)(42). While this provision of the asylum statutes is primarily utilized in the context of China's one-child policy, this article argues that it is a potentially effective strategy for victims of intimate partner violence (IPV)² and/or rape who are seeking protection under the United States' ever changing—and often hostile—asylum laws.

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First, the article discusses the legal difficulties of the "social group" category and the benefits of alternative theories of relief. Second, the article proposes the "coercive population control" prong of INA § 101(a)(42) as a viable alternative for certain claims. A historical and legal background of the "coercive population control" prong is provided, along with a road map for advocates of how to apply this prong to certain Central American asylum claims. This road map includes a legal argument for applying the "coercive population control" prong to harm committed by non-state actors. It then discusses the link between pregnancy and IPV and rape, which shows that violence against pregnant women is a common form of gender-based violence, and that the "coercive population control" prong has a potentially wide applicability if advocates carefully screen their clients. Finally, the article addresses potential arguments that may be raised by the government in opposition to these claims—namely, that most Central American countries have extremely restrictive abortion laws—and explains how advocates can successfully overcome them.

The Pitfalls of "Particular Social Group" for Gender-Based Asylum Claims and the Need for Alternatives

Asylum seekers fleeing gender-based persecution at the hands of non-state actors, especially victims of IPV and/or sexual violence, have long struggled to be seen as bona fide refugees.³ All asylum applicants must show they have a well-founded fear of persecution in their home country and that the feared harm was or will be inflicted on account of a protected ground: race, religion, nationality, political opinion, or membership in a particular social group.⁴ Applicants who have suffered harm based on their gender, including victims of IPV and female genital mutilation (FGM), have generally utilized the "particular social group" ground.⁵ For IPV-based claims in particular, applicants and their advocates have always had to navigate precarious legal straits.

The harm perpetrated against women in IPV-based particular social group claims is often undisputed; most are denied due to the purported lack of a nexus between the harm suffered and a cognizable particular social group. To be cognizable as a ground for asylum, any particular social group must be: (1) composed of members who share a common immutable characteristic, (2) socially distinct in the society in question, and (3) defined with particularity as to its boundaries.⁶ The group also cannot be circularly defined by the harm feared.⁷ An applicant must show both that she belongs to a cognizable social group and that her membership in that group is a central reason for her persecution.

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Simple social groups such as "women of [x] nationality" have been rejected by some adjudicators as "too broad,"⁸ though this group has gained traction in some federal circuit courts.⁹ On the other hand, more specific (and increasingly baroque) social group formulations such as "women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination,"¹⁰ or "young Guatemalan females who have suffered violence due to female gender"¹¹ have been deemed circular or otherwise fail any one of the requirements for cognizability. Even if a group is presumed cognizable, adjudicators may deny due to lack of nexus if they believe the persecutor was animated by "personal" motives such as sexual attraction, jealousy, opportunism, or revenge instead of broader misogynistic animus. This is especially common if a persecutor only harmed the applicant but no other women in the community.¹² Again and again, adjudicators characterize systemic IPV, femicides, and other gender-based violence in countries such as Guatemala, El Salvador, and Honduras as coincidental repetitions of a personalized form of harm, inflicted on each specific woman for personalized reasons.¹³

Despite these obstacles, years of litigation ultimately culminated in Matter of A—R—C—G—, in which the Board of Immigration Appeals (BIA) held that "married women in Guatemala who are unable to leave their relationship" could constitute a cognizable particular social group.¹⁴ This was the first precedential decision issued by the BIA formally recognizing that IPV could constitute persecution as a basis for asylum. The Trump administration reversed this victory when the attorney general issued Matter of A—B— to expressly overturn Matter of A—R—C—G—.¹⁵ Matter of A—B— addressed the claim of a woman alleging persecution on account of her membership in the particular social group "El Salvadoran women who are unable to leave their domestic relationships where they have children in common."¹⁶ The attorney general characterized the harm of IPV as something inflicted by private actors solely on the basis of personal relationships and broadly stated that "[g]enerally, claims by aliens pertaining to domestic violence . . . perpetrated by non-governmental actors will not qualify for asylum."¹⁷

Federal courts soon clarified that Matter of A—B— did not categorically foreclose all domestic violence or gender-based asylum claims.¹⁸ However, in Matter of A—C—A—A—, when an applicant was granted asylum based on persecution she suffered on account of the social group "Salvadoran females," the attorney general again certified the decision to himself and remanded to a three-member panel of the BIA to reassess every element of the woman's claim.¹⁹

In December 2020, the Trump administration further codified this hostility to gender-based asylum claims by publishing amendments to 8 CFR §§ 208.1 and 1208.1 in the Federal Register. These amendments explicitly stated that asylum claims will not be "favorably adjudicate[d]" when based on "interpersonal disputes [or] private criminal acts" unknown to the authorities,²⁰ "interpersonal animus," or, most damaging of all, "gender."²¹

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Despite the Trump administration's efforts, applicants and advocates have continued to pursue—and win—gender-based claims under the ground of a particular social group, though Matter of A—B— and Matter of A—C—A—A— undoubtedly further complicated the legal landscape. The post-Trump era offers some hope. President Biden promised as a candidate to "restore asylum eligibility for domestic violence survivors,"²² and it is anticipated that he will rescind Matter of A—B— and eventually reverse much of the Trump administration's devastating regulatory amendments to 8 CFR §§ 208.1 and 1208.1 (though these regulations were enjoined by litigation on January 8, 2021, and may be independently reversed in federal court).²³ While these efforts would remove some of the harshest recent obstacles for many applicants, victims of IPV and other gender-based violence seeking asylum under "membership in a particular social group" have always faced challenges given the seesaw of precedent from the BIA and various federal circuits, shifts between presidential administrations, and the extent to which local adjudicators are sympathetic to or skeptical of these kinds of claims.

For these reasons, many advocates have long attempted to sidestep the increasingly complex and politically fraught "particular social group" morass by asserting claims under other protected grounds, such as political opinion. In the case of IPV, the political opinion may be described as "feminism" or a "belief that women are entitled to be treated as human beings."²⁴ Yet this ground poses its own challenges. Traditional political opinion claims require that an applicant show: (1) she held a political opinion, or her persecutor believed she held an opinion; and (2)...