March 12, 2000 - New York Times
By Chris Hedges
A young Moroccan woman, now 21 and living in Queens, won asylum in the United States in August after fleeing North Africa and her father, a fundamentalist Muslim who beat her, locked her in her room and denied her an education. The case continues to frustrate lawyers for immigrant women fleeing abuse, even though it was a victory on the surface.
In granting her asylum, the United States Board of Immigration Appeals defined her plight as religious persecution rather than domestic abuse. That means the ruling offered no greater hope for women seeking asylum based on abuse at the hands of fathers and brothers, husbands and boyfriends.
Indeed, not long after her case was decided last year, the board refused asylum to a Guatemalan woman who had suffered similar abuse but whose abuser had no political or religious affiliations that the board found important.
The two decisions reflect the Immigration and Naturalization Service's latest, often confusing attempts to reckon with one of the thorniest issues it faces: how to deal consistently and fairly with the thousands of women who, in one form or another, seek asylum because of what is termed gender abuse.
"This is the hardest question in refugee law right now," said Bo Cooper, the general counsel of the agency. "We are trying to figure out how the international definition of a refugee, written half a century ago, should be applied to novel kinds of cases such as domestic violence."
Under that definition, Mr. Cooper said, to be considered a refugee, a person must have a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion.
"Membership in a particular social group is the hardest to understand, the least well defined and the one that is typically at issue in a domestic violence cases," he said.
Some of the practices involved in such cases include genital mutilation, bride burning, rape, mass rape, sexual abuse, spousal abuse, infanticide, forced marriage, child marriage, slavery, forced abortion and forced pregnancy.
And even when the agency determines that a woman has a compelling case, there are a range of options the agency must weigh before granting asylum. "For example," Mr. Cooper said, "can she turn to the government for help? Can she safely move to another part of the country? Can she leave the marriage?" Those requirements keep the system from being swamped, he said.
The Moroccan woman said she fled her home with the help of her mother and a friend who gave her a forged green card. She said she twice tried to kill herself before deciding to flee. She arrived in New York in April 1998.
"My father told me that to be a good Muslim woman meant that I would never be educated," she said in a recent telephone interview from Queens. "And when I protested, I was beaten, one time being burned with the heated blade of a knife on my thigh. I still have the scar."
The immigration service first tried to address the question of granting asylum to women based on charges of domestic abuse in 1995, by distributing a document to its inspectors called Gender Guidelines Recognition. While the guidelines did not change refugee law, they set out procedures for interviewing claimants. For example, they allowed women to speak apart from their husbands.
But the guidelines did not say whether domestic violence victims were to be considered members of a distinct and deserving social group, as defined in the law. Not surprisingly, then, domestic abuse cases have been settled in a patchwork of decisions. In 1993, for example, the immigration service granted asylum to a Haitian woman who had been raped while active in the church led by Jean-Bertrand Aristide, the former president of Haiti.
Human rights advocates hoped that it would presage a wider recognition of gender abuse. But the ruling only muddied the waters. The agency granted her asylum because of political persecution, saying that she was sexually abused because of her beliefs, and, as it has seemed to do since, it avoided the issue of whether the rape by itself was sufficient grounds for asylum.
In 1996, the board ruled that a woman from Togo, in West Africa, could be granted asylum based on her fear that if she returned there, she would be forced to undergo genital mutilation, but again avoided the broader issue of domestic abuse.
Immigration advocates, such as Nancy Kelly of the Harvard Immigration and Refugee Clinic, called the last decade of rulings "confusing and inconsistent."
Others, though, have chosen to interpret the differing decisions as a sign that the agency is inching awkwardly, but steadily, closer to acknowledging that gender abuse is a legitimate basis for granting asylum.
"All of these cases indicate that this area of gender asylum law is alive and well, that it is possible to win cases based on domestic abuse," said Deborah Anker, the director of the Harvard Immigration and Refugee Clinic. But the board's rulings have been inconsistent, she said.
If domestic abuse alone is accepted as a basis for asylum, the immigration agency worries, there could be a wave of such cases, especially from countries where victims have no recourse in the legal system. Yet advocates argue that even if there is an increase in asylum requests, the acts that produced them would be serious enough to be considered legitimate grounds for asylum.
"Gender-based persecution is a tremendous problem for the I.N.S. and has been for years," said Millicent Clarke, a former official with the agency and now a lawyer who represents asylum seekers. "There are millions of women who could qualify for asylum if gender abuse alone is seen as enough to grant asylum."
Ms. Clarke, who represented the Moroccan woman, said that although she welcomed the ruling, she was disturbed that the board decided the case on grounds of religious persecution even though "the gender aspects were primary." She added, "I think the board copped out by choosing to decide the case on religion."
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