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A Response To The Acosta Doctrine And Gender Asylum: An Immigration Reform Perspective On Matter of R-A-

by Stephen M. Knight

This article is in response to FAIR attorney Hethmon's article on gender asylum, in which he singled out the Center for Gender & Refugee Studies for criticism. The case for why victims of gender-based violence deserve asylum has been made repeatedly elsewhere;[1] I want to take the opportunity to address some of the article's more problematic and misleading statements.

Mr. Hethmon lays out three arguments against granting asylum to victims of gender-based violence. Yet none of these are directly relevant to the Matter of R-A- decision or address whether such women qualify as refugees under the Refugee Convention as implemented in the United States.

The first reason Mr. Hethmon gives is by his own term "collateral." He warns that "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 ... will withdraw from ... international refugee and human rights conventions...." It is difficult to believe that this objection, pertaining to highly contingent and abstract possible future action by other countries, is really the major concern that Mr. Hethmon has with recognizing women victims of gender violence as refugees. It is also difficult to understand what this has to do with individualized decisions on applications for asylum from women from, say, Sudan or Pakistan who have asked not to be sent back to be brutalized or murdered by their spouses or families with state acquiescence. Does Mr. Hethmon believe that such concerns should drive our construction of the refugee definition?

Secondly, Mr. Hethmon warns against asylum fraud, saying that "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." Of course, fraudulent claims need to be guarded against. There is nothing inherent about women's asylum claims that makes them more susceptible to fraud.

Finally, Mr. Hethmon lashes out against the use of "eclectic citations." Attorneys for gender asylum applicants often cite to various international developments as persuasive authority in their cases, as well as the Kasinga case, which is binding precedent under U.S. law. Mr. Hethmon warns that "U.S. appellate courts remain justifiably suspicious of eclectic citations of the kind that dominated the arguments in the BIA dissent.... 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." (Note that Mr. Hethmon himself cites a UNHCR brief earlier in his article, and one submitted in opposition to the general proposition he supports.) Again, it hardly seems credible that Mr. Hethmon or FAIR are opposed to gender asylum because of "eclectic citations."

I also want to address a number of the statements that he makes in reaching his conclusions:

1) His article claims that the BIA in Matter of R-A- and the British House of Lords in Shah shared "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." This is pure make believe; neither of these "core" concerns appears in either decision. The fact that FAIR wants asylum to be temporary and revokable does not make it the law. The list of abuses he provides is also narrow and limited. Asylum is granted to individuals fleeing persecution, a broad, undefined term the meaning of which, like other parts of the refugee definition, develops over time.

2) "It is no longer acceptable in either the U.S. or the U.K.," Mr. Hethmon declares, "to craft a definition based on the social views of Western advocates." But that women in Togo should not be subjected to FGM, or that women in Guatemala need not submit to domestic violence, is simply not some "social view of Western advocates." It is established international law. And the fact that the women themselves flee these abuses shows that the rejection of such violations is indigenous to the cultures and people themselves.

3) The decision in Matter of R-A- is mischaracterized when he asserts that "BIA found that ... 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." (Fns omitted.) In fact, it was exactly because the BIA expressly if grudgingly found that the applicant had met the Acosta test that the majority opinion was forced to invent difficult new legal standards beyond Acosta in order to deny her claim. (See Int. Dec. 3403 at 17: "The proposed group may satisfy the basic requirement of containing an immutable or fundamental characteristic.")

4) His claim that Lord Hoffman somehow engaged in "sleight of hand" when he characterized Acosta's "esjudum generis" analysis as "in pari materiae" is erroneous. Lord Hoffman never did any such thing. Before discussing Acosta in his decision, Lord Hoffman touched on the evidence of the intent of the drafters of the Refugee Convention for the inclusion of the "social group" ground. He states his opinion that "the inclusion of 'particular social group' recognised that there might be different criteria for discrimination, in pari materiae with discrimination on other grounds, which would be equally offensive to principles of human rights." Clearly Lord Hoffman is discussing the drafting of the convention, and not the Acosta decision.

Mr. Hethmon then uses this argument - based on a mischaracterization - to assert that the entire Shah decision is undermined by Lord Hoffman's "sleight of hand," and he ends up appearing to attack Acosta itself, the decision that he is supposed to be defending: "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."

The question of whether victims of gender-based violence qualify as refugees under the Refugee Convention has been faced by numerous other developed countries and been answered in the affirmative. Mr. Hethmon's characterization of this ongoing development of the refugee definition as "mission creep" is disingenuous. Lawyers know that legal definitions change over time to meet new circumstances; this is true of every area of the law. As a piece of argument - an "immigration reform perspective" - Mr. Hethmon's article is off the mark.

[1] See, e.g., Karen Musalo & Stephen Knight, Unequal Protection (Bulletin of Atomic Scientists, Special Issue: Seeking Refuge, Nov./Dec. 2002); Karen Musalo, Matter of R-A-: An Analysis of the Decision and its Implications, 76 Interpreter Releases 1177 (August 9, 1999). These articles and much more information about the Matter of R-A- case can be found on CGRS's web site at .

About The Author

Stephen M. Knight is the Coordinating Attorney, Center For Gender & Refugee Studies, U.C. Hastings College of the Law. The Center For Gender & Refugee Studies provides legal expertise and resources to attorneys representing women asylum-seekers fleeing gender related harm, at both the practice and policy levels, and seeks to track decisions in these cases.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.