I am responding to the piece on the Acosta Doctrine and the future of gender-based asylum. It strikes me that if relying on persecution to prove the existence of the group would involve circular reasoning, then relying on the patriarchal (contextual) society to formally acknowledge its right to inflict unrestricted domestic abuse on women with impunity from the government would involve a nearly impossible burden for the victim. It seems to me that regardless of whether the right to abuse/torture/mutilate is codified in tribal or religious law, as with FGM or shahriíah, its existence should be as easily defined by the absence of protections or laws prohibiting it as by the explicit legal, cultural or governmental sanction of those practices. In order to prove the absence of legal protections, you would first have to show a pattern of persecution of a particular social group, followed by the lack of prosecution of the perpetrators. In this sense, then, relying on evidence of persecution to prove the existence of the group is in fact, a necessary first step in the process. Expert witnesses to corroborate the lack of prosecution of the perpetrators, as well as the lack of protections for the victims in that particular social group, as a pervasive societal phenomenon, would serve to close the loop. After all, isnít that how the conclusion was drawn that "Driving While Black" seems to have become a punishable offense in some states?
To be successful, given this new standard for gender-based asylum claims, immigration attorneys will have to be more creative in their evidentiary approach. For example, they might consider hiring an anthropological expert witness to produce historical evidence of persecution of women in the indigenous cultures that make up the majority of the Guatemalan population. Furthermore, they might bring in studies of how years of military dictatorship and the suspension of civil rights have further institutionalized both gender and class-based persecution. I canít imagine such studies do not exist.
In the end, though, asylum will always be highly politicized, and third world women do not have much clout - except when itís politically expedient for them to have it Ė as was the case post 9/11 when we fancied ourselves "liberating" Afghan women from the brutal repression of the Taliban. For a fleeting moment in time, we saw photos of women ripping off their burdas on the front pages of our newspapers, and we were led to believe that centuries of institutionalized repression had been wiped away in a month. The film Kandahar had a brief run in our theaters.
Certainly, allowing victims of horrific domestic abuse to qualify for asylum cannot be any more of a legal stretch than allowing the little Cuban boy, Elian Gonzalez, to get asylum because he couldnít have the toys and "things" under Castro that he could have a few miles away in Miami. The Guatemalan children of the asylum applicant in Matter of R-A- donít have the ability to acquire those things either. Since when do we consider giving someone asylum simply because they canít buy everything they want? Only if they hail from a Communist country. If you donít believe me, take a look at some of the flimsy asylum claims during the Cold War.
I also think that the disposition of Matter of R-A- involving a Guatemalan woman has to be looked at in the larger context of the denial of asylum claims involving Guatemalans in general. See Paz v. INS, No. 02-1892 (8th Cir. Mar. 10, 2003) and Ramos v. Ashcroft, No. 02-2818 (8th Cir. Mar. 10, 2003) as reported in the March 11th issue of ILW.COM. If our government's position is that guerrilla warfare has ended, democracy has been restored and refugees are being repatriated, then they are less likely to look at Guatemala as a hotbed of terror and injustice. I believe this will negatively impact the exercise of discretion in favor of Guatemalan asylum applicants of all types.
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