Violence against women and the asylum process.

• Author: Linarelli, John
• Position: Conceptualizing Violence: Present and Future Developments in International Law

Perhaps no area of public legislation generates as much controversy, or attracts as much rhetoric, as immigration. Immigration is perceived as the eve of who we are as a nation. Legal norms governing the movement and migration of people across the borders of countries determine who is entitled to live in a country and ultimately who will control its resources. Immigration goes to the heart of sovereignty, particularly where sovereignty is popular, such as in consolidated democracies.(1) Asylum is a controversial issue within the immigration debate.

This Article will interpret some of the recent developments in asylum law that are particular to asylum claims of women. In turn, it will attempt to develop some relevant theoretical issues outside of what has been labeled "radical" feminist theory.

The two principal remedies available in the United States legal system for victims of human rights abuses committed in other countries are asylum and recovery of damages under the Alien Tort Claims Act.(2) We can roughly analogize these statutory federal remedies to common law damages and equity, although, unlike the damages versus equity distinction, asylum and recovery under the Alien Tort Claims Act are not mutually exclusive.(3) This Article deals with the asylum portion of this domestic remedial system--an affirmative remedy against actual or threatened persecution.

1. VIOLENCE AGAINST WOMEN, PLAIN LANGUAGE, CULTURE AND HUMAN RIGHTS

   Significant developments relating to women's claims for asylum have occurred in the past several years. In March 1994, in Matter of Oluloro,(4) an immigration judge sitting in Portland, Oregon granted an order suspending the deportation of a Nigerian woman because the likely imposition of female genital mutilation on her citizen children would have caused extreme hardship.(5) Oluloro was a case of first impression.(6) Last year, a woman from Sierra Leone, who was facing deportation, became the first person in United States immigration history to obtain asylum on the basis of forcible female genital mutilation.(7) On May 26, 1995, the United States Immigration and Naturalization Service (INS) took the momentous step of issuing Gender Guidelines (Guidelines).(8) The Guidelines recognize well established human rights norms condemning persecution of women, as reflected in the Universal Declaration of Human Rights,(9) the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),(10) the United Nations Declaration on the Elimination of Violence Against Women(11) and other international instruments.(12) Recently, the Board of Immigration Appeals, the highest adjudicative body in the United States immigration system, decided In re Fausziya Kasinga,(13) establishing precedent for lower immigration courts and asylum officers,(14) The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, signed into law on September 30, 1996, despite other problematic provisions, makes it a crime to practice female genital mutilation on minors.(15)

   The language of the United States Code provides for asylum for women and empowers the Attorney General with the discretion to grant asylum to any person who meets the definition of a refugee.(16) The Immigration and Nationality Act(17) defines a refugee as follows:

   [A]ny person who is outside any country of such

   person's nationality or, in the case of a person having no nationality,

   is outside any country in which such person last habitually resided,

   and who is unable or unwilling to return to, and is unable or

   unwilling to avail himself or herself of the protection of, that

   country because of persecution or a well-founded fear of

   persecution on account of race, religion, nationality, membership

   in a particular social group, or political opinion. (18)

   A plain reading of the asylum statute demonstrates that recognition of women's claims does not expand the scope of asylum law. While women can face persecution in all of the above categories, those categories that typically capture persecution specific to women are political opinion or membership in a particular social group.

   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 stereotypical applicant--the educated male elite fleeing communism.(19) One of the principal reasons for amending the asylum law in 1980 was to eliminate such bias.(20) Thus, a traditional legal analysis of women's claims, based on the language of the law and established principles of statutory interpretation, such as the plain meaning rule, supports the recognition of women's claims.

   This is not to suggest some naive approach at statutory interpretation. A good legal realist or post-legal realist may scoff at this argument. Indeed, there are potential pitfalls whenever the meanings of words are left to any decision maker, particularly a decision maker that is not an Article III judge. Statutes, however, should be subject to a principled interpretation based on the purposes of the statute that tribunals and parties can find and articulate. To this end, the Refugee Convention and its domestic implementing statute should be interpreted in the context of the human rights regime that has grown dramatically since the end of World War II, and with an informed understanding of events in asylee and refugee producing countries.(21)

   2. The "Culture" Argument

      Immigration restrictionists depart from the language of the statute and essentially argue that a cultural relativist exception should be carved out of the asylum statute and applied solely, or at least primarily, to women's claims. 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.

      The persecution of women can be physically, mentally and emotionally traumatic. The culture argument is typically asserted in euphemisms that compel relentless attention to specifies. Female genital mutilation, bride burning, rape, mass rape, sexual abuse, spousal abuse, infanticide, forced marriage, child marriage, slavery, forced...