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Representing Women Seeking Asylum in the US: Gender-Based Persecution

In reSVAW logo copypresenting several women seeking asylum in the US based on gender-based persecution, I have learned a lot and had some of my most memorable experiences as a lawyer.

  • “Nancy” is a woman from Guinea who was subjected to female genital mutilation at thirteen, and again at fourteen, and then the victim of persistent violence and rape by her husband that family, friends, her doctor, and the police were unable or unwilling to stop. She twice fled the country, but her husband found her and forced her to return home, which only led to escalating violence and prolonged imprisonment.  Her family counseled her to “accept” this treatment, and the police refused to intervene because her husband was a high ranking member of the military police.  She escaped to the US, was granted asylum, and is working to reunite with her children.
  • “Donna” is a woman from Cameroon who was the victim of levirate marriage. She was viewed as property of the family, since a dowry had been paid, so after her husband died she was required to marry one of her brothers-in-law.  When she refused, she was sexually assaulted, told she would “get used to it,” and her family and business were threatened.  She escaped to the US, was granted asylum, and has reunited with her children.
  • “Janet” is a woman from Kenya who was the victim of female genital mutilation. She was seeking protection for herself, and also to prevent having to take her daughter back to Kenya where her family would require that her daughter also undergo female genital mutilation.  She was granted withholding of removal, so that she and her daughter are safe in the US.
  • “Francis” is a woman from The Gambia who was the victim of female genital mutilation, and who sought to avoid a forced marriage to a much older man. She had secretly acted as an activist working to educate people about the risks of female genital mutilation, and her mother, at great risk to herself, persuaded her father to let Francis pursue her education.  In order to prevent the forced marriage, and to continue her education, she came to the US, sought and was granted asylum.

The primary reason these awful things happened to my clients is because they are women.  Female genital mutilation, forced marriage, levirate marriage, and ongoing domestic violence continues to happen because in some places women and girls are not viewed as fully human, endowed with the same rights as men. We should be proud that our legal system rejected that view, and instead found affirming their basic human rights worthy of protection.

A recent decision from the Attorney General has proposed to make it more difficult for women fleeing gender-based violence to get protection in the US. In Matter of A-B, 27 I&N Dec. 316 (A.G. 2018), the Attorney General invoked a rarely used power to certify to himself a case for decision so that he could change the law in this area.  In the case, the primary issue that had been litigated was whether the applicant was credible, and the Department of Homeland Security even had agreed that private violence like domestic violence that a government cannot or will not control can be a proper basis for asylum.  The Attorney General, however, reached out to decide a broader issue, which was whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.  Though the holding of the decision narrowly overruled a previously-decided case from the Board of Immigration Appeals the Attorney General, largely through dicta, articulated and encouraged a very restrictive view of asylum law.  The decision posits that violence inflicted by private actors, rather than governments, is generally not the type of persecution that our asylum laws were intended to address.

There are many flaws, procedural and substantive, with the decision.  The odd procedure of the case suggests that the Attorney General was searching for a vehicle to render broad policy pronouncements to restrict asylum law.  The decision states that it is not minimizing the “vile abuse” that the woman in the case suffered in the form of domestic violence by her ex-husband.  Unfortunately, the way it elevates form over substance and erects barriers for women who have been so victimized suggests otherwise.  Most fundamentally, it applies a feeble, restrictive view of asylum law, somehow drawing perceived comfort from the rather hollow observation that “the asylum statute does not provide redress for all misfortune.”

I believe that gender-based persecution is indeed the type of harm that our asylum laws should work to address.  It is well-established in international law that states have an obligation to exercise due diligence to prevent, investigate, and punish actions by private actors. The U.N. Declaration on the Elimination of Violence against Women (DEVAW) states that governments are urged to “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by privates persons” (Art. 4(c)). General Recommendation No. 19 by the U.N. Committee on the Elimination of Discrimination against Women (CEDAW) also provides that states may be “responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.” In my experience, allowing the asylum laws to protect people deprived of their basic human rights by private actors because of their gender is a powerful way for this country to stand up for the dignity of all people.  When we see this harm not as mere private acts of violence but as systematic persecution, we affirm the importance of human rights for all people.  The Attorney General’s decision, which seeks to set aside years of development of the law in order to make it more difficult for women to obtain protection, is misguided.  It will make it more difficult for women like the ones that I’ve represented to be safe and free.

The decision will make it harder, but certainly not impossible, to win these cases.  There are still helpful cases from Circuit Courts of Appeals across the country that support gender-based claims from private actor persecution.  Advocates may need to present more arguments and evidence that demonstrate governments’ failure to prevent the harms inflicted by private actors.  Use of expert witnesses to present this evidence may also be needed in more cases.  While the Attorney General’s decision is a significant setback, there are still many claims based on private actor persecution that should prevail.

In 1788, George Washington wrote “I had always hoped that this land might become a safe and agreeable Asylum to the virtuous and persecuted part of mankind, to whatever nation they might belong.”  We know, however, that the history of the US regarding the protection of refugees has been uneven, vacillating between openness and prioritizing human rights to times where we have turned our backs to the persecuted and failed to live up to our country’s ideals.  At times like this when we fall back, lawyers can make a difference by standing up for victims of human rights abuses.  By helping asylum seekers overcome the new hurdles placed by the Attorney General, and hopefully restoring the law to embody greater respect for freedom and human rights, we can enlist ourselves on the right side of history.  I am so glad that Nancy, Donna, Janet, Francis and others like them are safe.  But today asylum seekers, particularly women who have been victims of private actor violence, are going to need help more than ever.

Dean Eyler is Principal and Intellectual Property Litigation Chair at Gray Plant Mooty and a volunteer attorney with The Advocates for Human Rights.

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“Go Home & Work It Out With Your Husband”: Why Sessions’ Ruling On Asylum Is So Devastating for Women Fleeing Domestic Violence

Woman covering face with handSome years ago, before the United States recognized that domestic violence was grounds for asylum, I represented a woman who was seeking asylum due to years of brutal violence inflicted upon her by her husband and the failure of her government to protect her.

“Ann” was a successful business person from East Africa who had experienced sexual, physical, psychological and emotional violence so extreme that she went to the police for help. Their response?

“Sorry, but this is a family matter – not a police matter. You have children. Go home and work it out with your husband. It will be better for all of you.”

So she went home. Her husband beat her until she passed out from the pain and blood loss as punishment for going to the police.

Because her business was so successful, she had the chance to expand the business to a neighboring country. She took the kids and moved, leaving no forwarding address. But he eventually found her there and, with support from the police, strongly “encouraged” her to move back to her country with the children. His family, as well as hers, also put pressure on her to stay in the marriage.

I met Ann because her husband was studying in the U.S. The beatings had intensified after the family moved here and she had called The Advocates for help. We had to meet to prepare the asylum application, but her husband, wary of her meeting with Americans, controlled where she went. We found surreptitious meeting places like the coffee shop near the daycare center so he would not suspect.

Perhaps others are not familiar with how much work goes into preparing a case for asylum in the United States. Asylum seekers must show, through both credible testimony and documentary evidence, that 1) they have a well-founded fear of persecution; 2) on the basis of political opinion, race, religion, nationality, or membership in a particular social group; and 3) their government cannot or will not protect them. It is not an easy thing to do, to fit all the facts of your life and your fear into the narrow frame of U.S. asylum law (which is, in fact, U.S. implementation of our obligations under the International Refugee Convention).

As we were getting close to filing her application, Ann asked me to meet her in front the building where she was taking a class. I picked her up there once or twice, no problem, and we went to the library to work on her affidavit. But when I pulled up the next time, she was standing in front of the building holding her baby and looking nervous.  She made eye contact and shook her head.

“No,” she mouthed.  “Go.”

Out of the corner of my eye, I saw a man coming towards her. My overall impression was a fast-moving blur of anger and intimidation.  I looked away from Ann and hit the accelerator. I couldn’t speed off – I was a human rights lawyer working for a nonprofit and my old car had zero acceleration – so I could see from her expression that it would do more harm than good if I stopped and tried to help.

I still am a human rights lawyer working for a nonprofit and I still drive an old car with zero acceleration.  Every once in a while, when I look in the rearview mirror, I think of Ann and remember that day. The sight of him yelling at her, fist raised… this is the closest I have ever come to witnessing domestic violence and it is the closest that I ever hope to be.  I waited on pins and needles until she called me late that night after he fell asleep. He had beaten her again but she was still alive.

We filed her asylum application not long after. She testified truthfully and credibly at her interview about the persecution she suffered, how she tried to leave but he tracked her down in another country, and about her government’s unwillingness to protect her from harm. The Asylum Officer asked the question that many people unfamiliar with the power and control dynamics of domestic violence ask victims: “Why do you stay with him if he beats you?”

Her answer was simple.

“Because I have tried to leave and he always finds me and brings me back. Then the beatings get worse. I am afraid every day that he will kill me. Then what will happen to my children?”

The day Ann was granted asylum, she took the children and left to begin a new life in safety and dignity as an American.

Ann was not the first domestic violence victim granted asylum in the U.S. Throughout the 1990s and 2000s, an increasing number of adjudicators granted asylum to individuals fleeing persecution by non-State actors that the government was unable or unwilling to control.  These were cases of individuals fleeing domestic violence, traditional harmful practices like FGM, and violence and discrimination based on sexual orientation or gender identity.  In 2014, the federal Board of Immigration Appeals issued a precedential decision (Matter of A-R-C-G-) that people like Ann could be granted asylum based on persecution on account of a particular social group.

Now Attorney General Jeff Sessions has overturned that ruling and years of jurisprudence by announcing that victims of domestic violence and other persecution by private actors “generally” do not qualify for asylum. The attorney general announced his decision in Matter of A-B-, a case in which he invoked a rarely used power to personally intervene and certify to himself for reconsideration after the Board of Immigration Appeals reversed and remanded to the immigration judge with an order to grant asylum. The case concerns a woman from El Salvador who fled 15 years of sexual, physical, psychological and emotional violence that her government failed to protect her from.

What I would like my fellow Americans to know is this:

International law recognizes that asylum seekers are particularly vulnerable and deserving of protection.

The international refugee protection system was set up as a result of the horrors of World War II, when Jewish refugees attempted to flee and were returned to Nazi death camps.

When people present themselves at the U.S. border and ask for asylum, they are not breaking the law. They are acting lawfully. They are following the process established by federal statute. They are exercising their fundamental human right to seek asylum from persecution.

The attorney general is by fiat attempting to return U.S. asylum law to a time when domestic violence was seen as a “family matter.” This is only the latest salvo in the administration’s all-out war against refugees and asylum seekers. It is connected to the “Zero Tolerance” immigration policy and should be seen in that context.

From a global perspective, Sessions’ move is in line with efforts in Russia and other countries around the world to undermine protections against domestic violence. I recently traveled to Moldova to train women’s human rights defenders who have seen the rising tide of “family values” throughout Russia, former Soviet republics, and Eastern Europe, as laws are passed decriminalizing domestic violence.

My client Ann was granted asylum on the basis of her social group of women from her country who have experienced extreme sexual, physical and emotional domestic violence, (which the UN Committee against Torture recognizes as “torture”), who are unable to escape their abuser and who the government is unable or unwilling to protect. It was only due to the permanent legal status she gained through the U.S. asylum system that she was able to take her children and leave her abusive husband, and start a new life for her family as Americans.

Mr. Session’s attempt to unilaterally narrow the definition of who is eligible for asylum from persecution ignores existing U.S. law and jurisprudence.  Further, it violates international law and US treaty obligations. In interpreting the Refugee Convention, the UN High Commissioner for Refugees has issued advisory opinions stating that domestic violence victims are potentially part of a social group. It turns back the clock to a time women fleeing gender-based persecution were not given refugee protection.

In my experience, when people have the chance to actually meet and get to know refugees and asylum seekers – and even other migrants who are coming for reasons of family reunification or work – they don’t say things like Mr. Sessions wrote in his opinion in Matter of A.B., “Yet the asylum statute does not provide redress for all misfortune.”

People who know asylum seekers fleeing domestic violence say things like, “She’s a really good person, just doing the best that she can for her family. She is trapped and has to get out of this violent situation. What can I do to help her?”

Before taking it upon himself personally to change well-established asylum law and practice, I really wish that Mr. Sessions could have met my client Ann. Or maybe even A.B. or others impacted by his decision.

By Jennifer Prestholdt, Deputy Director of The Advocates for Human Rights.

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Jenna goes to the United Nations

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Thanks to The Advocates for Human Rights, I just had the opportunity to take my interest in human rights work— and particularly my longstanding advocacy work on gender violence issues— to the United Nations in Geneva. Along with 11 others, including representatives from NGOs in Cameroon and Azerbaijan, I participated in The Advocates’ annual UN Study Advocacy trip, where we spent five days in Geneva at the 37th Session of the Human Rights Council lobbying Human Rights Council members on gender violence, LGBTQ and death penalty issues. Even though I am just 17, during the week The Advocates ensured that I was not just a passive observer to their work – rather, they allowed me the opportunity to play an active role providing me with an opportunity to be an advocate at the international level.

On my first full day in Geneva, I got the opportunity to participate in a side event panel on Violence Against Women. I was honored to speak alongside experts in the field in women’s rights and gender violence, who addressed the issue of gender violence in Azerbaijan, Columbia and Russia. My presentation focused on gender violence at the high school level, an often overlooked issue. I spoke about, among other things, the need to change the dynamic and educate children at a young age about the meaning of consent. My hope is that by early education we might be able to dissipate the prevalence of gender violence in the community at large.

As if that wasn’t enough excitement, the next day I actually got to make an oral statement to the Human Rights Council — on the floor of the United Nations — on the implementation of the Vienna Declaration. The Vienna Declaration emphasizes the importance of eliminating “gender bias in the administration of justice.” In my statement, I spoke about the importance of criminal laws in combating violence against women and the need for UN member states to adopt laws in line with international standards to protect victim safety and promote offender accountability. I am glad I can speak quickly – as, during this particular session, each NGO had 90 seconds to speak. They actually cut you off if you go over your time. I think the man sitting next to me was a bit surprised to see someone so young sitting in the NGO speaker seat.

On days following, I got the opportunity to participate in small meetings with staff members of the Special Rapporteur on human trafficking in persons, especially in women and children and the Special Rapporteur on violence against women. We got to learn about their priorities for the coming year and some of the amazing work they have been doing. The representatives of the Special Rapporteurs truly seemed interested in the work of The Advocates and solicited examples of best practices as well as assistance in their ongoing work.

I also got to lobby. One of the primary reasons The Advocates attends the Human Rights Council sessions is to encourage delegates to comment during the Universal Periodic Review process – which involves a periodic review of the human rights records of all 193 UN Member States. It is done in cycles so every country is not up for review at once. During the UPR process there is an opportunity for any government to raise questions and make recommendations about any other government’s human rights compliance. Before the trip, The Advocates did extensive research regarding the human rights record of several countries up for their UPR — Azerbaijan, Cameroon, Colombia, Cuba, and Russia – and prepared recommendations on ways those countries could make improvement on issues including women’s rights, LGBTQ rights, and the death penalty. With those recommendations in hand, along with other members of our team, I got to approach delegates encouraging them to meet with us to discuss The Advocates’ recommendations – and, if they didn’t want to meet, giving them prepared fact sheets on the various issues. While at first I was afraid to approach some of the delegates (you literally go into the Human Rights Council chamber and tap people on the shoulder and ask them to speak with you), I was excited to see how receptive people were to speak with us. I understand that in the past, many delegates have not only adopted The Advocates suggested recommendations but also that the recommendations were ultimately accepted by the countries under review.

I also had the opportunity to watch the Human Rights Council debates. I got to hear a representative from Hungary declare that migration was not a fundamental human right and hear a delegate from Cuba call out US hypocrisy on issues of civil and human rights. More importantly, I got to watch in action a body of international players trying to hold countries accountable for human rights violations – asking questions and making proposals. It was amazing to see individual countries human rights records being held up to public scrutiny. I loved the fact that UNTV televises the debates, so that the discussions are readily accessible throughout the world.

Finally, I got to watch The Advocates staff in action – creating a team out of a group with disparate skill sets and expertise. Robin, Jennifer, Rose and Amy willingly shared their expertise, helping us all to become better advocates. I have a new found understanding of the importance of their work – and the influence they have at the international level. I will be forever grateful for this experience from which I learned so much not only from watching the UN in action but also from the members of the team who were incredibly kind and supportive. And, in case any of the team members are interested, I did get my AP American History paper on the Chinese Exclusion Act done in time (although the last night of our trip was a very long night).

By The Advocates for Human Rights’ youth blogger Jenna Schulman.  Jenna is a high school  student in Washington, D.C.