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Article Excerpt
I. OVERVIEW--THE BASICS OF ASYLUM LAW
II. THE FIRST LIMITING FACTOR--THE DOMESTIC VIOLENCE MUST RISE TO THE LEVEL OF PERSECUTION III. THE SECOND LIMITING FACTOR--PROVING NEXUS IV. THE THIRD LIMITING FACTOR--ESTABLISHING A CONVENTION GROUND V. THE FOURTH LIMITATION--THE FEAR MUST BE "WELL-FOUNDED" VI. THE FIFTH LIMITATION--OUTSIDE HIS OR HER COUNTRY OF NATIONALITY VII. CONCLUSION
[S]ex-specific violence [and discrimination] has never been treated with the same seriousness as other human rights abuses.... If a person is murdered because of his or her politics, the world justifiably responds with outrage. But if a person is beaten or allowed to die because she is female, the world dismisses it as "cultural tradition." (1)
Great strides have been taken in recent years to address this misconception; however, vestige of this erroneous belief persists for female asylum-seekers who are the victims of domestic violence. These women flee and seek refuge in the United States because their own country cannot or will not provide them with protection from spousal abuse. Their countries tolerate, condone, or encourage domestic violence, and, it could well mean death for these women to remain within their countries' borders. Nonetheless, the United States sees its protectionist role as limited--that is, limited to those who can prove that the reason their spouse abused them is because of the wife's race, religion, nationality, or political opinion. The United States has yet to acknowledge that domestic violence can occur simply because a wife is seen as part of an inferior class--that of "women"--a possession not seen as deserving of protection by their own country and also not, it would seem, deserving of asylum.
The most publicized and renowned case (2) of this kind is that of Rodi Alvarado Pena, a woman who was beaten from the day she married Francisco Osorio, a Guatemalan army officer. She was repeatedly raped; her jaw was dislocated; her husband attempted to cut off her hands with a machete; he kicked her in an attempt to abort their second child; he shoved her head through windows; and he kicked her in the genitalia causing her to bleed for eight days. (3) Although a number of these attacks occurred while the couple was in public, and Ms. Alvarado sought legal intervention, the Guatemalan courts and the police failed to come to her assistance. Her attempts to flee within her own country were also unsuccessful. In 1995, after ten years of this brutal violence, she fled to the United States seeking protection from certain death. (4) In 1996, an immigration judge granted her claim for asylum on the grounds that Guatemala was unwilling to provide her with protection from the persecution she suffered because of her social group--"Guatemalan women involved intimately with Guatemalan male companions, who believe that women are to live under male domination"--and her political opinion--opposition to male domination. (5) The Immigration and Naturalization Service (INS) appealed the immigration judge's decision, and the Board of Immigration Appeals (BIA) reversed Ms. Alvarado's grant of asylum. (6) The BIA rejected the respondent's claim that she was persecuted because of her social group and/or political opinion, instead concluding that the domestic violence was perpetrated because her husband could, and that it was a personal matter. (7) Ms. Alvarado sought review and simultaneously sought certification of the BIA's decision to the Attorney General. Prior to the Attorney General accepting certification, the Department of Justice (DOJ) issued a proposed rule (the Proposed Rule) to deal with the issue of asylum and domestic violence. (8) After publication of the Proposed Rule, then Attorney General Janet Reno accepted certification of the matter, vacating the decision of the BIA and remanding it to the BIA for reconsideration in accordance with the Proposed Rule upon its being issued in final form. (9) With the change of administration, however, Attorney General John Ashcroft directed the BIA to certify the case to him. (10) During Ashcroft's term as Attorney General, he refrained from making a decision on the matter, and the Proposed Rule was not published in final form. By an order dated January 19, 2005, he vacated the matter and remitted it to the BIA. (11) However, the Proposed Rule, which would lead to a grant of asylum to Rodi Alvarado, has not been issued in final form as of the publication of this Article.
Representatives of Ms. Alvarado are touting the return of her matter to the BIA as a victory. (12) However, the fate of Ms. Alvarado is now once again in the hands of the BIA, and the long awaited immigration regulations--which, in their draft form, indicated support for asylum claims for women fleeing a country that cannot or will not protect them against domestic violence--still remain to be finalized. The appointment of Alberto Gonzales as Attorney General provides no further certainty as to the outcome of Ms. Alvarado's case or the cases of those seeking protection under similar bases. During his confirmation hearings, Attorney General Gonzales refrained from voicing a view on the Alvarado case and, in fact, aroused concern as to whether the Proposed Rule would ever be issued in final form. (13) The fate of Ms. Alvarado and others who are in similar positions is still far from certain.
What is certain is that the United States' Attorney Generals passed on making an affirmative finding as to whether a woman in these circumstances may ever be granted asylum and avoid being deported. The delay in making a decision on this case, the delay in publishing the Proposed Rule in final form, and the approach of the BIA demonstrate a reluctance to grant asylum to women who are victims of domestic violence and are clearly in need of protection. One of the major concerns behind the approach of the United States is the floodgates argument--the potential risk to the American economic and social well-being if it were to recognize women as a social group and domestic violence as persecution for the purposes of asylum. Statistics presently conclude that one in four women in the United States experience some form of domestic violence. (14) If that is the case in a country whose laws and infrastructures condemn and seek to eradicate domestic violence, what would the statistics be in a country in which very few, if any, controls exist? The number of potential asylum-seekers, those seeking a new life in a country they perceive will protect and provide a future, can only lead those who control immigration to panic. The natural thought is that the borders would open beyond all reason. Couple this belief with the concern of fraudulent claims (how easy it must be to bring a claim of asylum by saying "my husband beats me") and you have the result of closing the borders to those in need of protection.
The panic, however, is unnecessary. There is absolutely no reason that a grant of asylum, safeguarding Ms. Alvarado from the persecutory acts of her husband, given that her country is unable or unwilling to provide such protection, will open the floodgates to these types of claims. Panic has blinded the administrators, the courts, and the government to limitations that were built into the 1951 Convention on the Status of Refugees (the 1951 Convention), (15) the United Nations Protocol Relating to the Status of Refugees (the 1967 Protocol), (16) and the domestic asylum laws, (17) precluding this type of situation from arising.
The United States' restrictive approach to domestic violence and asylum law is out of step with the other major nations who are signatories to the 1967 Protocol and/or 1951 Convention. Countries such as Australia, Canada, New Zealand, and the United Kingdom have recognized that women within a given society can and do constitute cognizable social groups, and, as such, can be and are persecuted because of their status as women within that particular grouping. (18) The United Nations High Commissioner for Refugees' (UNHCR) approach clearly conforms to the approaches of these nations rather than the United States' approach. (19)
It is the aim of this Article to prove that, by adopting the approach advocated by the UNHCR and the countries mentioned, the United States' borders will not be flooded by female asylum-seekers. The safeguards that the United Nations built into the 1951 Convention and the 1967 Protocol still can and do provide the required balance and protection for signatory countries, even in these modern day situations. This Article analyzes the threshold requirements imposed by the 1951 Convention and U.S. law for a valid grant of asylum. There are five key preconditions, or limitations, which an asylum-seeker must satisfy. Each precondition is discussed in this Article, including the effect of these threshold requirements on those who seek asylum as victims of domestic violence. In examining the threshold requirements of "Nexus" and "Convention grounds," this Article compares and analyzes differing approaches taken in other major signatory countries to support the theory that, not only is the United States out of conformity with these other major signatory countries, but the fear of open borders to which the United States clings is without a strong foundation.
I. OVERVIEW--THE BASICS OF ASYLUM LAW
The origins of modern day asylum law in this country and throughout the world are found in the 1951 Convention (20) and the 1967 Protocol. (21) In 1951, still dealing with the after effects of World War II, the United Nations convened a Conference of Plenipotentiaries to draft a convention that would assist in dealing with the ongoing issue of refugees and displaced persons. The 1951 Convention did so by providing a definition of who qualified as a refugee under international law, what a state party's obligations were to refugees, and what the obligations of those granted refugee status were to the granting state. (22) Given that the back drop of the 1951 Convention was World War II, the Conference of Plenipotentiaries limited the Convention's operation geographically to those displaced within Europe, and further limited its operation to those displaced prior to January 1, 1951. (23) The United States was not a signatory to the 1951 Convention and, therefore, did not adopt its obligations. (24) However, with the drafting of the 1967 Protocol and thereby the lifting of the time and geographical boundaries, the United States acceded to the 1967 Protocol on November 1, 1968. (25) By acceding to the 1967 Protocol, the United States agreed to the obligations imposed by the 1951 Convention and the definition of who qualifies as a refugee. As of March 1, 2006, 145 other countries have similarly adopted the international obligations imposed by one or both of these instruments. (26)
Until the enactment of the Refugee Act of 1980, (27) no formalized process existed in the United States for carrying out its international obligations under the 1967 Protocol. (28) The Refugee Act of 1980 codified the 1951 Convention definition of refugee and provided a process by which refugee and asylum-seeker claims for protection could be assessed. (29) The 1980 Act has been amended significantly over the years, but the core definition of who qualifies as a refugee remains consistent with that found in the 1951 Convention:
[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 (30)
This provision establishes the threshold requirements of who qualifies for protection, and in doing so provides the boundaries of the United States' international obligation of protection. An analysis of this provision demonstrates that victims of domestic violence persecuted in countries that are unable or unwilling to protect them from such violence, can (subject to the circumstances of the individual case) meet this definition of refugee. Furthermore, the acceptance of these women as bona fide asylees will not open the borders to all female applicants who suffer the fate of domestic violence in their own country.
II. THE FIRST LIMITING FACTOR--THE DOMESTIC VIOLENCE MUST RISE TO THE LEVEL OF PERSECUTION
Not every victim of domestic violence will qualify for asylum. The treatment they experience or allege they will experience if returned to their country of origin must be persecutory in nature. (31) The 1951 Convention and the 1967 Protocol do not provide a definition as to what type or extent of mistreatment or discrimination qualifies as persecution. Similarly, Congress did not include a definition of persecution in the Immigration and Nationality Act of 1952, nor have any regulations been passed attempting the same. (32) The reasoning behind this approach is best described by the UNHCR:
There is no universally accepted definition of persecution, and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights--for the same reasons--would also constitute persecution. (33)
For this reason, most signatory nations to the 1951 Convention and/or the 1967 Protocol have refrained from providing any guidance in their domestic legislation as to the meaning of this threshold requirement. (34) The definition of persecution has, therefore, been left to the development of the domestic agencies and courts of the various signatory states. In the case of the United States, the development of the definition has therefore been left to the BIA and the courts.
Current dicta of the U.S. Supreme Court states that persecution is "the infliction of suffering or harm upon, those who differ [in race, religion, or political opinion] in a way regarded as offensive." (35)
The question then begs for a further definition of what is conduct regarded as "offensive?" The definition of offensive is multifaceted. The starting point of defining offensiveness is that actions will be regarded as offensive if they are serious violations of human rights. (36) While all violations of human rights may be regarded as repugnant to those who live in a democratic nation such as the United States, this will not be sufficient to qualify as offensive for the purposes of protection under the Immigration and Nationality Act. (37) The similar approach of other signatory states is as follows: "[R]efugee law ought to concern itself with actions which deny human dignity in any key way and that the sustained or systemic denial of core human rights is the appropriate standard." (38)
Even if an act is regarded as a serious violation of core human rights, this is not, by itself, sufficient to be deemed offensive. The act must be selective in the sense that it is not an act of random violence, and it must be of an egregious nature. (39) Mere harassment or discrimination will not rise to the level of persecution. (40) Finally, the asylum-seeker must prove that the harm was inflicted by a government or persons a government is unwilling or unable to control. (41) Therefore, a petitioner's ability to prove that her treatment qualifies as persecution will need to be assessed by asylum adjudicators on a case-by-case basis. (42) As the starting point of determining whether domestic violence qualifies as persecution, it is not surprising that courts around the world have assessed the act of domestic violence is persecutory in nature according to Human Rights Conventions. (43) The UNHCR, in providing guidance to signatory countries, clearly advocates this approach. In doing so, the UNHCR states that reference should be made to International Human Rights Law and International Criminal Law because these instruments "clearly identify certain acts as violations of these laws, such as sexual violence, and support their characterization as serious abuses, amounting to persecution." (44)
Key human rights instruments clearly state that violence against women is an abuse of human rights and fundamental freedoms. These instruments include the Universal Declaration of Human Rights (UDHR); (45) the International Convention on Civil and Political Rights; (46) the International Convention on Economic, Social, and Cultural Rights; (47) the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); (48) the Convention Against Torture and Other Cruel, (49) Inhuman or Degrading Treatment or Punishment; the Declaration on the Elimination of Violence Against Women (DEVAW); (50) and the Beijing Declaration and Platform for Action. (51)
CEDAW is regarded as the leading international convention in the area of discrimination against women, (52) but the Convention itself fails to address whether violence against women is a form of discrimination. This was clarified in 1993 when DEVAW passed. DEVAW explicitly defines violence against women as including "[p]hysical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation." (53) DEVAW further clarifies that "[w]omen are entitled to the equal enjoyment and protection of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." (54)
The UNHCR views "the United Nations Declaration on the Elimination of Violence against Women, adopted by the General Assembly in 1993, and the Beijing Declaration and Platform for Action, adopted in Beijing in 1995, [as declaring] all forms of discrimination as violence against women and girls and reaffirm[ing the] States' responsibility to work to eliminate them." (55) The United States has not ratified or acceded to the international treaty and is therefore not legally bound by the Convention's provision or its subsequent clarification. (56)
Therefore, it is not surprising that early decisions determining whether violence against women, for example rape, could constitute persecution, indicated a trend on the part of U.S. immigration officials to treat such violent acts as being a personal matter rather than persecution. (57) For example, an immigration judge, denying a grant of asylum, concluded that the rape of the petitioner Catalina Mejia by the soldier who accused her of being a guerrilla, was not an act of persecution but "was more because she was a female convenient to a brutal soldier acting only in his own self-interest." (58) The United States has since determined that sexual violence and serious abuses involving women can constitute persecution. As such it is now without dispute that rape, (59) female genital mutilation, (60) slavery, (61) forced marriage, (62) and forced abortion (63) are all forms of persecution. The U.S. Department of Justice's Asylum Gender Guidelines, (64) in recognizing all of the aforementioned as forms of persecution, also states that domestic violence constitutes persecution. (65)
A domestic violence asylum-seeker may now be viewed as readily able to meet the threshold of persecution. However, it must be made clear that not all cases or forms of domestic violence will constitute persecution, and the applicant must meet her evidentiary burden to convince the asylum officer that domestic violence has...
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