The Acosta Doctrine And Gender Asylum: An Immigration Reform Perspective On Matter of R-A-
It has been widely reported that Attorney General John Ashcroft has certified Matter of R-A- and is expected to support the BIA's original position rejecting domestic violence in Guatemala as a valid ground for a grant of asylum. The following critical analysis of asylum law underlying the BIA decision was originally prepared at the time of the Board's decision in 1999. It remains relevant to the forthcoming (re)certified decision, which could have a profound effect on restoring integrity to asylum and refugee law by protecting its core humanitarian purpose.
The June 1999 Board of Immigration
Appeals (BIA) decision in Matter of R-A-
alarmed advocates for gender parity.
They feared the decision undermined a controversial but central theory
in asylum advocacy; that either gender-based discrimination, or a lack of
foreign government protection against domestic violence, are independent
grounds for refugee status under U.S. law.
The decision was subsequently vacated by then-Attorney General Janet
Reno in January 2001, days before the end of her tenure in office, and returned
to the BIA for reconsideration. The Attorney General also directed the BIA
to take into account proposed regulations published in December 2000.
Both the BIA majority and dissent in
R-A- discussed the contemporary
decision by the British House of Lords in Islam/Ex
Parte Shah. The
leading advocates for gender-based asylum from the Hastings Center for Refugee
and Gender Studies and the Harvard Refugee Law Center suggested that the Law
Lords defined "membership in a particular social group" in a manner more
compatible with international law. These advocates claimed that unless R-A- was nullified, women from
patriarchal societies would lose vital U.S. protections against violent abuse
of their fundamental human rights.
The June 1999 Board of Immigration Appeals (BIA) decision in Matter of R-A- alarmed advocates for gender parity. They feared the decision undermined a controversial but central theory in asylum advocacy; that either gender-based discrimination, or a lack of foreign government protection against domestic violence, are independent grounds for refugee status under U.S. law. The decision was subsequently vacated by then-Attorney General Janet Reno in January 2001, days before the end of her tenure in office, and returned to the BIA for reconsideration. The Attorney General also directed the BIA to take into account proposed regulations published in December 2000.
Both the BIA majority and dissent in R-A- discussed the contemporary decision by the British House of Lords in Islam/Ex Parte Shah. The leading advocates for gender-based asylum from the Hastings Center for Refugee and Gender Studies and the Harvard Refugee Law Center suggested that the Law Lords defined "membership in a particular social group" in a manner more compatible with international law. These advocates claimed that unless R-A- was nullified, women from patriarchal societies would lose vital U.S. protections against violent abuse of their fundamental human rights.My more critical reading suggests that both the BIA and the Law Lords favored a common doctrine, the test for "persecution on account of membership in a particular social group" in Matter of Acosta.  In both cases that test was applied restrictively, due to a common concern that domestic debate over gender roles might undermine the core humanitarian objective of asylum: the temporary protection of expatriated individuals against genocide, pogroms, or ethnic cleansing.
Asylum claimants must establish on the record that "membership in a particular social group" is recognized by the contextual society in which the persecution occurs. It is no longer acceptable in either the U.S. or the U.K. to craft a definition based on the social views of Western advocates.R-A- provided BIA an ideal factual vehicle to examine the required elements of a particular social group membership claim. BIA found that the undisputed record of extreme violence and abuse suffered by the respondent at the hands of her Guatemalan husband exceeded the "threshold required for persecution," i.e., a well-founded fear. Nonetheless, the respondent-victim did not qualify as a member of a particular social group under either the applicable Ninth Circuit test in Sanchez-Trujillo v. INS  or the less restrictive BIA formulation in Matter of Acosta.
An asylum applicant must provide direct or circumstantial evidence from which it is reasonable to conclude that the persecutor harmed the applicant at least in part because of a listed ground under INA §101(a)(42)(A). To qualify as persecution, abuse must have been committed against members of a group that is a "recognized segment of the population" or is "understood to be a societal faction" by both the group members and the contextual society. This key element must be established in the factual record on a case-by-case basis.BIA used this individualized evidentiary requirement to distinguish domestic violence in R-A- from the threat of female genital mutilation (FGM) in Matter of Kasinga. Under the deferential evidentiary standards in asylum proceedings, FGM was found to be an acknowledged definitional characteristic of the contextual society, the Tchamba-Kunsuntu tribe of Togo. In contrast, BIA held that domestic violence was only an imputed characteristic of the Guatemalan state. The Board criticized victim's counsel for tying a string of ideological assumptions to the uncontested findings that the respondent resisted her husband's grossly violent behavior, sought police protection, and attempted to escape: the Guatemalan state is a patriarchal society; the husband was not restrained by the state; lack of restraint makes the husband an instrument of state patriarchy; the husband's attacks were motivated by her social group membership; and females resisting patriarchy are a particular social group. BIA found these arguments "artificial":
The requirement for an individualized determination was also present in the British opinions. The Law Lords went beyond BIA, however, to examine broader alternative definitions of the persecuted social group. None of the British opinions accepted the argument that the prevalence of domestic violence or living in a society that legally discriminated against women was alone sufficient to support an asylum claim. In two of the five holdings, Lords Hoffmann and Steyn accepted that "women in Pakistan" formed a particular social group for asylum purposes. However, the two English jurists based that holding on individually documented, undisputed evidence that each applicant would risk serious harm if they re-entered any part of the contextual society, the Pakistani state. Pakistan had legalized pervasive domestic violence by enacting and enforcing shari'ah statutes which restricted the legal capacity of women accused of zina, or unlawful sexual relations, to offer testimony, and denied them habeas corpus protections. The Islamic shari'ah capital offense of zina was found to be a definitional characteristic of the state (the contextual society), a very different fact pattern from R-A-, where domestic violence had no legal pretext or status.
The BIA disclaimed the potential applicability of their decision to "analogous social group claims arising under any other conceivable set of circumstances." But these cases suggest at a minimum that practitioners who fail to establish the recognition of the claimed particular social group by its contextual society risk dismissal of their appeals as not cognizable.
A case of doctrinal 'bait and switch'?
The core Acosta doctrine of ejusdem generis does not support an expansive interpretation of "particular social group" that would encompass sexual relationships and domestic violence. The BIA majority, dissent, and all five Law Lords agreed that the "immutable characteristic test" in Acosta is the best judicial formulation of persecution on account of membership in a particular social group.
The Acosta test is an express application of the statutory interpretation doctrine of ejusdem generis, which holds that "general words used in an enumeration with specific words should be construed in a manner consistent with the specific words." The doctrine is only applicable where the specific and general terms in a statute are inconsistent, in this case the four specific "Convention reasons" and the more general ground, "membership in a particular social group." The seven opinions differed as to the genus of the four specific "Convention reasons," but all seven purported to accept the test.
As a threshold issue, BIA reiterated that the consistent element was not persecution itself. The narrowly tailored social group definition offered by the respondent in R-A- "may amount to a legally crafted description of some attributes of [respondent's] tragic personal circumstances." Here, the BIA majority was in accord with all five opinions in Islam/Ex Parte Shah, as expressed in Lord Steyn's majority opinion that "relying on persecution to prove the existence of the group would involve circular reasoning." Citing a recent Australian High Court case, Steyn confirmed that a particular social group "must exist independently of, and not be defined by, the persecution," a result which would be "illogical and nonsensical." While dissenting from the main ruling, Lord Millett cited a 1993 Canadian precedent that defining a social group solely by its common fear of persecution would completely reverse the statutory definition of Convention refugee, since "persecution must be driven by one of the enumerated grounds, and not vice versa." The English counsel for UNHCR also supported this general principle.
Applying the Acosta doctrine, the BIA found that "shared descriptive characteristics" are insufficient to constitute a particular social group, as that formulation "would virtually swallow the entire refugee definition." Put more elegantly in Lord Hope's concurring majority opinion, the "Convention reasons" are "an inclusive list" and not, "as one finds in some human rights instruments, illustrative."
Islam/Ex Parte Shah, Lords Hope and Steyn accepted Lord Hoffmann's view, featured in Deborah Anker's analysis, that a common feature of all five "Convention reasons" is the statement in the Convention preamble that "human beings shall enjoy fundamental rights and freedoms without discrimination." The BIA dissent also adopted Hoffmann's analysis, arguing that "gender, relationship to an abusive spouse, and opposition to domestic violence" are immutable characteristics that implicate fundamental human rights under the Acosta test.
Lord Hoffmann's opinion, at the heart of the "historic decision" proclaimed by gender-asylum proponents, was seriously flawed. Hoffmann conceded that the "travaux preparatoires" of the Geneva Convention do not explain why "particular social group" is a ground for refugee status, and he purports to rely fully on the Acosta analysis. But, inexplicably, he substituted "in pari materiae" -- the very different doctrine that statutes having a common purpose are to be construed together -- in place of ejusdem generis. This judicial sleight-of-hand was evidently intentional, since only by an arbitrary substitution of doctrines could Hoffmann plausibly claim under the Acosta doctrine that"in choosing to use the general term 'particular social groups' rather than an enumeration of specific social groups, the framers of the Convention were in my opinion intending to include whatever groups might be regarded as coming within the anti-discriminatory objectives of the Convention…"
Hoffman's misrepresentation of a central premise of Acosta ironically aids the argument that a vague "whatever groups..." formulation does unacceptable violence to the test itself. It weakened the two other English majority opinions and the BIA dissent that depend on his analysis, but gives credence to the BIA majority view that immutableness is at best a "starting point" and does not by itself define a social group. To the extent that other controversial social group definitions, such as gender, sexual orientation, infancy, et cetera, depend on Acosta to support a Hoffmann-style claim that discrimination and inequality are grounds for asylum, these definitions appear similarly flawed.
Discrimination versus persecution
In addition to evidentiary and doctrinal arguments for a restrictive Acosta test of particular social group, the BIA majority and four of five Law Lords distinguished between discrimination and persecution in their analysis of the "on account of" nexus. Both majority opinions expressed skepticism that discrimination alone, even by the state, would constitute "persecution on account of" an enumerated "Convention reason."
The BIA majority in R-A- criticized the dissent's reliance on the "impunity with which the respondent's husband acted" and the "incomprehensibleness" of the husband's motives to demonstrate the required nexus. BIA objected that the dissent's theory would impermissibly shift the evidentiary burden of proof from the victim to the government. Instead, the majority found "significant guidance in assessing the operation of the particular social group category by looking to the ways in which the other grounds in the statute's "on account of" clause operate."
The nexus "analogy" relied on by BIA was INS v. Elias-Zacharias: "The ordinary meaning of the phrase 'persecution on account of'… political opinion … is persecution on account of the victim's political opinion, not the persecutor's." The majority stressed the victim's evidentiary burden to show the requisite nexus, and directly attacked a focus on "societal attitudes" and "failure of government to offer protection" as an impermissible exercise in burden-shifting. Absent the additional elements of governmental action against a recognized social group -- factors that BIA did not find in the Guatemala "context" -- these discriminatory patterns do not turn victims into refugees. Even more explicitly, BIA found "no principled basis for restricting such an approach to cases involving violence against women."
The British opinions in Islam/Ex Parte Shah drew a brighter line than the BIA, excluding gender discrimination alone as a ground for refugee status. The possible exception, Lord Hope, appeared at one point to support a broader view when he stated
"it would be wrong to extend the rule that Convention reasons must exist independently of the persecution so as to exclude discrimination as a means of defining the social group where people with common characteristics are being discriminated against."
However, elsewhere in his opinion Hope clarified that state-sponsored persecution and state identification of the social group are essential elements for a finding that discrimination by a contextual society supports a claim to particular social group membership.Asylum as restrictive humanitarianism The common restrictive reasoning in both majority approaches is sensitive to the core humanitarian mission of asylum law. Implicit in the core humanitarian purpose of asylum law is a requirement that it be as effective as possible, by offering reliable protection to the greatest number of bona fide refugees. "Once one has established the context in which a causal question is being asked, the answer involves the application of commonsense notions rather than mechanical rules," wrote Lord Hoffmann.
Effectiveness is a commonsense notion par excellence. Two arguments can be made that effective humanitarian protection is best achieved by resisting the ideological "mission creep" inherent in an expanded definition of particular social group.
First, consider the problem of collateral consequences. The majority of women refugees worldwide have sought asylum in Iran, Sudan, Pakistan, Gaza, and other predominately Islamic societies that maintain institutionalized discrimination against women in their family status laws, and reject feminist constructions of gender equity. Following the model of Saudi Arabia, these states will withdraw from or register reservations to international refugee and human rights conventions before tolerating attacks on their social and political legitimacy. Under this very real scenario, the endorsement of gender asylum by the U.S. would only legitimize more regressive policies toward the highly vulnerable majority of women refugees who must "bloom where they are planted."
Second, the practical effect of gender politics on INS policies should also be assessed. The inevitable increase in regulatory scrutiny will discourage difficult but bona fide claims. Most of the increased documentation and evidentiary burdens imposed on asylum applicants since 1990 have been enacted in response to widespread belief among legislators that the incidence of fraud in asylum programs is unacceptably high. Tightened evidentiary procedures have been adopted by Switzerland, and are currently being considered in Canada and the European Union.
A final parenthetical observation: U.S. appellate courts remain justifiably suspicious of eclectic citations of the kind that dominated the arguments in the BIA dissent. Common law traditions allow American jurists to share approaches with our British and Commonwealth colleagues. However, asylum litigation strategies based on policy statements and guidelines from UNHCR, international voluntary organizations, or even domestic executive agencies can do a disservice to clients, no matter how "on point" they may be ideologically. The 1999 Supreme Court holding in INS v. Aguirre-Aguirre that the UNHCR "Handbook" is not "binding on the Attorney General, the BIA, or United States courts" is a good "reality check" for advocates with an agenda broader than their client's interests.
 Staff Counsel, Federation for American Immigration Reform (FAIR).
 BIA Interim Decision 3403, June 11, 1999.
 BIA Interim Decision 3403, Decision of Attorney General, January 19, 2001.
 65 Fed. Reg. 76588 (Dec. 7, 2000). In the only case to apparently address the issue in the interim, Immigration Judge Hurewitz denied a grant of asylum in a similar claim by a Honduran woman. In denying the application, the judge relied on the decision in R-A- and the proposed regulations to rule that the proposed social group of "Honduran women who have been intimately involved with abusive male companions (men who believe that women are to live under male domination) and who assert they have the right to be free of male domination" was not "a group recognized and understood to be a societal faction." Matter of R-L-P- (IJ Miami FL, Jan. 31, 2002), discussed in Knight, S. 'Seeking Asylum from Gender Persecution: Progress and Uncertainty, 79 Interpreter Releases 689 (2002).
 Islam (A.P.) v. Secretary of State for the Home Department, Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.)(Conjoined Appeals), 2 All ER 545 (March 25, 1999).
 Anker, Deborah, etc., Defining "Particular Social Group" In Terms of Gender: The Shah Decision and U.S. Law, 76 Interpreter Releases 25 (1999); Musalo, K., Matter of R-A-: An Analysis of the Decision and Its Implications, 76 Interpreter Releases 1177 (1999). See also: Gender Based Claims Monitored, 4 Bender's Immigration Bulletin 969 (1999).
 19 I&N Dec. 211 (BIA 1985): Persons who share a common, immutable characteristic that they either cannot change or should not be required to change because such characteristic is fundamental to their individual identities.
 R-A-, at 9.
 801 F.2d 1571 (1986): "A collection of people closely affiliated with each other, who are actuated by some common impulse or interest. A central concern is the existence of a voluntary associational relationship among the purported members which is fundamental to their identity as a member of that discrete social group."
 R-A-, at 8 citing INS v. Elias Zacharias, 502 U.S. 478, 483 (1992).
 R-A, at 14-15.
 BIA Interim Decision 3278 (1996).
 R-A-, at 24.
 Steyn L.J.: "Generalisations about the position of women in particular countries are out of place in regard to issues of refugee status. Everything depends on the evidence and findings of fact in the particular case." Hoffmann L.J: "There was in my view no suggestion that a woman was entitled to refugee status merely because she lived in a society which, for religious or any other reason, discriminated against women." Hope L.J: "The reason the appellants fear persecution is not just because they are women." Lord Hutton: "I prefer to express no view on the wider issue whether women in Pakistan constitute a "particular social group…" Millet L.J: "[Women in Pakistan] are not jointly condemned as females or persecuted for what they are."
 Anker's analysis that the Law Lords relied on "actual implementation" of Pakistani law rather "law on the books" requires the incorrect presumption that shari'ah law, e.g. the Zina Ordinance, is unconstitutional in that country.
 The BIA dissent argued that the Sanchez –Trujillo test also required an "independent contextual determination." R-A-, at 34.
 Steyn, L.J., citing In Re Acosta, 19 I. & N. 211 (BIA, 1985).
 Sullivan, Statutory Construction, 5th Ed., §47.17 n18.
 "Guatemalan women who have been involved intimately with Guatemalan male companions who believe that women are to live under male domination."
 See also Hope L.J: "The only clear rule which can be said to have been generally recognized is that the persecution must exist independently of, and not be used to define, the social group."
 A. and Another v. Minister for Immigration and Ethnic Affairs and Another, 142 A.L.R. 331 (1997), McHugh J.
 Chan v. Canada, 3 F. 675, 692 (1993), Heald J.A., quoted in A. v. Minister for Immigration and Ethnic Affairs, Dawson J.
 Steyn L.J., Narrowing the issue, last para.
 R-A-, at 16.
 Hope L.J., 4th para.
 Anker, 76 Interpreter Releases, at 1008.
 R-A-, at 32, 37.
 Anker did not appears to be aware of this problem, since her analysis of Shah did not cite the actual test in Acosta, but instead quoted at length from a non-controlling Canadian case, Canada v. Ward, 2 S.C.R. 689 (1993), which substituted language from an "unpublished manuscript, on file with authors" for the esjudem generis analysis in Acosta. 76 Interpreter Releases 1010, fn 38-41.
 R-A-, at 25, 26.
 R-A-, at 10.
 502 U.S. 478, at 482 (1992).
 R-A-, at 19.
 R-A-, at 20.
 Steyn L.J: "The unifying characteristics of gender, suspicion of adultery, and lack of protection do not involve an assertion of persecution." Hoffmann L.J: "The distinguishing feature of the present case is the evidence of institutionalized discrimination by … the central organs of the state. Although discrimination against women is contrary not merely to western notions but to … a number of human rights instruments, … it does not itself found a claim under the Convention." Millet L.J. (in dissent): "It is not enough that an applicant has a well-founded fear of persecution. The persecution must be discriminatory and for a Convention reason…. The denial of human rights is not the same thing as persecution, which involves the infliction of serious harm. The 1951 Convention was intended to provide refuge to the victims of certain kinds of discriminatory persecution, but did not prohibit discrimination or grant refugee status to victims of discrimination."
 Hope L.J., 6th para.
 Hope L.J. paras. 1, 8, 10.
 Hoffmann, L.J. para. 25.
 IRSA, World Refugee Survey 1998, 2-6.
 See, e.g. Germaine, R. "UNHCR – A Resource for Attorneys Representing Asylum Seekers", 19 AILA Monthly 765 (September 1999). The issue resurfaced in 2002, when FAIR was instrumental in identifying a proposed amendment to the Homeland Security Act of 2002 sponsored by Sen. Edward Kennedy (D-MA) that would have designated un-ratified international agreements and domestic agency administrative materials as "U.S. immigration law" for judicial purposes.
 526 U.S. 415 (1999), citing INS v. Cardoza-Fonseca, 480 US 439 (1987).
Michael Hethmon is Staff Counsel for the Federation for American Immigration Reform (FAIR).