The rising bar for persecution in asylum cases involving sexual and reproductive harm.

• Author: Marouf, Fatma E.

Abstract

This Article argues that there is a rising bar for establishing persecution in U.S. asylum eases involving sexual and reproductive harm. Analyzing recent cases, the Article shows that adjudicators tend to apply a higher standard for physical harm in these types of cases and largely overlook nonphysical harm, including psychological suffering and the intangible harm caused by deprivation of equality, autonomy, and privacy. The Article focuses specifically on two types of eases where these patterns appear: (1)female genital mutilation (FGM); and (2) involuntary insertion of an intrauterine device (IUD). Regarding FGM, the Article discusses an emerging dispute as to whether Type I FGM (clitoridectomy) constitutes persecution. With respect to involuntary IUDs, the Article analyzes a decision by the Board of Immigration Appeals (BIA) requiring aggravating circumstances for the harm to constitute persecution, as well as recent circuit court decisions reviewing the application of this problematic precedent to other cases. The Article then argues that using international human rights law to identify and evaluate various types of harm would lead to a much more comprehensive and principled analysis of persecution and would likely lead to different results in these types of cases.

INTRODUCTION

The concept of persecution lies at the heart of what it means to be a refugee, (1) yet its definition remains highly imprecise. Judges define what actions constitute persecution on a case-by-case basis without reference to any objective norms or standards, resulting in significant discrepancies between the federal courts of appeal, as well as striking inconsistencies at lower levels of adjudication. (2) When it comes to nonphysical forms of harm, such as psychological harm, severe discrimination, or deprivation of self-determination, the divergence of opinion is even greater.

Over time, our understanding of persecution has evolved to encompass forms of harm that are related to gender and experienced primarily by women, such as rape, female genital mutilation (FGM), and domestic violence. As Deborah Anker has argued, "the [United Nations High Commissioner for Refugees (UNHCR)], practitioners, scholars and activists consciously have constructed gender asylum law on the edifice of international women's human rights law and the work of the international women's human rights movement." (3) Judges, however, often continue to view gender-specific forms of harm through a different lens. Thus, while great progress has been made over the past two decades in recognizing gender-related asylum claims, "we are still a long way from an adequate recognition of the specificity of women's experiences of persecution, as is the case for many other non-traditional forms of persecution." (4)

This Article focuses on two types of sexual and reproductive harm about which opinions have begun to diverge. The first type of harm, FGM, which affects 100 to 140 million girls and women worldwide, (5) was found to constitute persecution years ago by the Board of Immigration Appeals (BIA) in Matter of Kasinga. (6) During the past decade, most circuit courts, as well as many other countries, have agreed that FGM constitutes persecution. (7) Recent decisions, however, indicate that the BIA and some circuit courts might not consider all forms of FGM to be persecution. Specifically, there are early signs of as to whether Type I FGM (clitoridectomy), which is one of the two most common forms of the practice, rises to the level of persecution. (8) In addition, a recent decision by the BIA suggests that FGM requires aggravating factors to constitute severe past persecution, which allows for a grant of humanitarian asylum without showing a well-founded fear of future persecution. (9)

The second type of harm that the Article addresses is involuntary insertion of an intrauterine device ("IUD"), which China inflicts on millions of women as part of its population control policies. (10) After the appearance of many conflicting, unpublished decisions on this issue, the Second Circuit remanded a case to the BIA specifically requesting a precedential opinion on point. (11) The BIA responded with Matter of M-F-W-& L-G-, which held that "aggravating circumstances" were required for involuntary insertion of the IUD to amount to persecution. (12) While the BIA did not define "aggravating circumstances," its decision suggests that significant pain or multiple insertions would be required for the harm to amount to persecution.

These two lines of cases involving sexual and reproductive harm highlight several problems. First, in assessing physical harm related to women's sexual and reproductive functions, adjudicators tend to apply a higher standard for persecution than for other types of physical harm. Instead of comparing the harm at issue to an objective standard for persecution, they compare it to the most extreme form of the relevant cultural practice, such as Type III FGM (infibulation) or forced sterilization. The Article notes that this tendency may be due, at least in part, to a specific type of cognitive bias, known as contrast bias, on the part of adjudicators.

In addition, adjudicators fail to analyze the nonphysical harm that results from practices such as FGM and involuaatary insertion of an IUD, including psychological suffering, gender discrimination, deprivation of self-determination, and profound invasions of privacy. Even where the physical procedure is short and does not result in medical complications, this type of nonphysical harm is discriminatory in nature and has serious, long-term effects that should not be forgotten. The tendency to ignore nonphysical harm clouds not only the analysis of persecution but also the evaluation of "aggravating circumstances," to the extent that consideration of such circumstances may be relevant. In pointing out these issues, the Article touches on the ways that implicit bias may also help explain why the analysis of physical harm dominates the decisions.

In Part III, the Article argues that conceptualizing persecution as a serious violation of human rights and evaluating the harms at issue under international human rights law will lead to a much more comprehensive, consistent, and equitable analysis of persecution. Applying an international human rights law analysis, the Article demonstrates that all forms of FGM, as well as involuntary insertion of an IUD, amount to persecution.

The Article then discusses why an international human rights approach is superior to both an approach that focuses on violations of fundamental rights under U.S. constitutional taw and an approach that creates a bifurcated standard for addressing physical and nonphysical harm, as in tort law.

Finally, the Article concludes that the circuit courts must grapple seriously with the question of how best to analyze persecution in cases involving gender-related harm. Precedential decisions will likely become necessary not only on the two issues discussed here, but also on a range of other complex issues that either mingle physical and nonphysical harm or involve nonphysical harm alone, such as forced marriages or draconian family laws that affect women's rights to divorce and custody of children.

In 2010, the United States received 55,500 asylum applications, maintaining its status as the single largest recipient of asylum claims among industrialized nations. (13) The two issues highlighted in this Article--involuntary insertions of IUDs and FGM--are particularly relevant because they pertain to countries that play a significant role in our asylum process. Chinese asylum-seekers accounted for nearly one-third of U.S. asylum claims (14) and comprised 38% of all asylum cases granted by U.S. immigration courts in 2010. (15) No other country even comes close to China in the number of asylum cases granted. (16) Given China's salient position in our asylum system, the issue of whether involuntary insertion of IUDs constitutes persecution must be addressed in a principled way by adjudicators.

Moreover, the countries of origin with the highest number of asylum cases granted by U.S. immigration courts include several places where FGM is widespread, such as Ethiopia, Egypt, Somalia, Guinea, and Eritrea. (17) According to the World Health Organization (WHO), the prevalence of FGM among women ages 15-49 is seventy-four percent in Ethiopia, ninety-one percent in Egypt, ninety-eight percent in Somalia, ninety-six percent in Guinea, and eighty-nine percent in Eritrea. is FGM is also common in certain parts of Cameroon, which likewise ranks among the top dozen countries in the number of asylum cases granted. (19)

Since the United States does not collect data on asylum cases based on the type of claim, it is unfortunately impossible to determine how many of the asylum claims from these countries involved FGM or other gender-related forms of harm.

Nor do we have adequate data regarding the number of asylum claims made by females, the percentage granted, or how these statistics compare to those for males. (20) Data is gathered by different U.S. agencies in a haphazard and inconsistent way, such that some information regarding the gender of applicants appears in statistics on affirmative asylum decisions (i.e. those made by the U.S. Citizenship and Immigration Service's Asylum Offices) (21) and refugee status determinations made abroad, (22) but not in statistics on defensive asylum decisions (i.e. those made by immigration judges during removal proceedings).

Collecting and analyzing data that is disaggregated by gender, country of origin, and type of claims in a consistent way is an important first step to better identify and assess emerging trends in the analysis of gender-related persecution. (23) Simply focusing on grant rates for women is not enough, as high grant rates do not necessarily indicate the absence of discrimination in the process: based on...