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Sonnenschein Attorneys Seek Asylum for Iranian Woman

Ms. S's Sonnenschein team: (from left to right) Partners Laura Wytsma and John Williams and Associates Karen Marchiano and Matt Marostica

Lawyers from Sonnenschein Nath & Rosenthal LLP are fighting on behalf of an Iranian woman ("S") fleeing years of sexual abuse perpetrated through a state-sanctioned temporary "marriage" to an Iranian government official.

Under Islamic law in Iran, a woman may become the "temporary wife" of a married Muslim man after a simple recital of words. The resulting Siqeh "marriage" is not recorded and may last for any length of time, even as little as 30 minutes. Siqeh wives are not granted rights associated with traditional marriage, and men may have as many temporary wives as they wish. The Siqeh marriage is prone to abuse. In S's case, Siqeh allowed her boss, a religious man, to cover his sexual predation with a cloak of legitimacy.

S's boss, a prominent Iranian attorney with a government ministry, forced her into a temporary marriage and proceeded to rape her, both at his office and his home, for a period of over nine years. He threatened to fire her if she resisted, and to kill her if she went to the police. In a country where women have limited employment opportunities, she was at the mercy of her government official boss.

Because the testimony of a woman is worth only half that of a man, she was particularly vulnerable. Inasmuch as the Iranian government ignores its rape laws, actively accepts the practice of Siqeh, and stones women for adultery, S became trapped in a situation where she suffered her boss's repeated sexual violence.

S was also persecuted for her political activities advocating for women's rights. She attended gatherings to discuss political issues, typed and copied brochures discussing the Iranian government's oppression of women, and distributed the brochures to her female coworkers. The brochures reflected her belief that "life for women in Iran is just like death." When a government security organization found out about her group, S was detained and interrogated for three days. After the government temporarily released her, S fled Iran.

S had no lawyer to help her in her asylum proceedings before the Immigration Judge. Despite his obligation to develop the record and S's status as a pro se (unrepresented) litigant, the judge refused to admit or consider the State Department's Country Report on Iran because he did not have "time" to read it. This report specifically documents Siqeh, the non-enforcement of rape laws, and the persecution of women and political activists in Iran. S was denied asylum and ordered deported.

Because he lacked the requisite context to understand S's testimony, the judge wrongly characterized the sexually abusive relationship as a consensual affair which could not be the basis for protection under U.S. asylum law.

On appeal to the Board of Immigration Appeals (BIA), S was represented by Professor Bridgette Carr with the Ave Maria School of Law Asylum & Immigrant Rights Law Clinic. After the BIA summarily affirmed the Immigration Judge's ruling, CGRS became involved and helped to identify and assist pro bono counsel for S in her federal court appeal.

Sonnenschein attorneys Laura Wytsma, John Williams, Matt Marostica, and Karen Marchiano agreed to take the case pro bono in early 2005. In their opening brief to the Ninth Circuit, the Sonnenschein attorneys argued that S was eligible for asylum due to her political activities as well as her membership in a social group defined by gender.

After reviewing the brief, an attorney for the Department of Justice contacted the Sonnenschein attorneys and told them that she recognized there were problems with the judge's decision. The government then filed a motion to send the case back to the BIA for it to reconsider its decision.

As of March 22, 2006, S's case awaited determination by the BIA. S's case is an excellent example of the critical importance of federal court review, given the lack of proper legal representation and limited attention given to cases at the administrative level.

CGRS Wins En Banc Genital Cutting Case - Abebe

Fear of the physically and psychologically scarring ritual practice of female genital cutting (FGC) is an established basis for asylum. But what if a family wants to protect their daughter from the practice? Can they be forced to choose between taking her back to their home country to face persecution, or leaving her behind in the United States in order to avoid it? Can the parents themselves have a claim to asylum in such circumstances?

CGRS, along with co-counsel, Phil Hornik, scored an important victory on this front in late 2005, when the Ninth Circuit handed down its en banc decision in the case of Abebe v. Gonzales. The case involved the claim to asylum by an Ethiopian couple, Mr. Mengistu and Ms. Abebe, who fear that their U.S.-born daughter will be subjected to FGC and that their resistance to the practice will result in their social ostracism. In Abay, the Sixth Circuit found a daughter and her mother to be refugees, based on the mother"s inability to protect her daughter from FGC in Ethiopia. But no other court had decided the issue favorably, and the child in Abay had no legal status in the U.S. and would have had to return to Ethiopia if her mother were deported. In contrast, the daughter in Abebe is a U.S. citizen, and can remain in the U.S. even if her parents are deported. Thus the case clearly raised the issue of whether parents can be granted asylum in a situation where their choices are to leave their U.S. citizen child behind or take her back to undergo FGC.

Mr. Mengistu originally sought asylum from political persecution in Ethiopia. Shortly before his hearing, however, two things happened: (1) the Board of Immigration Appeals (BIA) ruled in Matter of Kasinga (a case won by Karen Musalo, now director of CGRS) that FGC was a basis for asylum, and (2) Ms. Abebe and Mr. Mengistu had a baby girl. Mr. Hornik raised FGC as another basis for asylum. But the judge denied on all grounds, the BIA affirmed, and in August 2004, a divided Ninth Circuit Court of Appeals panel upheld the denial of asylum, over an eloquent dissent.

Mr. Hornik then sought CGRS"s assistance. His timing was perfect, because New Voices Fellow Leena Khandwala had just started her position at CGRS and launched the Appellate Advocacy Project. Leena"s very first task was the difficult one of drafting a persuasive petition requesting that the case be reheard by the full Ninth Circuit. In early 2005, the court did grant rehearing and CGRS took the lead in writing briefs to the court. The June oral argument provided an excellent introduction to appellate litigation for CGRS"s team of four summer law clerks from around the country, who generated memos on issues ranging from substantive and procedural aspects of the claim to an analysis of prior decisions issued by the judges who would be deciding the case.

The practice of FGC is nearly universal in Ethiopia. Yet the immigration judge had held that the daughter did not have a well-founded fear of persecution, because her parents were supposedly able to protect her. This point quickly became central at oral argument, with the government attorney hard pressed to defend the position that the daughter was not likely to undergo FGC with evidence that it is so pervasive in Ethiopia. Judge Kozinski then asked Karen Musalo, who argued on behalf of CGRS, if FGC should even be considered persecution at all, because those who practice it believe it is for the girls" own good. Karen cited the Ninth Circuit"s own precedent in response to Judge Kozinski"s question. In an earlier decision, Pitcherskaia, the court had ruled that in the former Soviet Union, the practice of subjecting a lesbian to electroshock in order to "cure" her was persecution, even though the authorities may have thought it was for her own good. In Pitcherskaia, the court had referred to the Spanish Inquisition and noted that non-believers were burned at the stake for the "benefit" of saving their souls, and that didn"t make the burning any less an act of persecution. And, as a SF Daily Journal article dryly reported the next day, the invocation of the Inquisition put an "end [to Judge Kozinski"s] line of argument."

Trafficking Victims Fight For Asylum

In defending the rights of women refugees, CGRS has never confined its advocacy to the courtroom. Karen Musalo proved the power of bringing together legal work with grassroots advocacy, media work and public education when she successfully led a team which won the Kasinga case in 1996. This same strategy has thus far prevented the U.S. from ruling negatively in the case of Rodi Alvarado, whose claim will decide whether domestic violence can be the basis for a grant of asylum. Building on that model, CGRS has initiated several campaigns to affect the outcome of individual cases by educating the public and mobilizing activists to put pressure on policymakers. Our latest campaign involves trafficking as a basis for asylum. This winter CGRS joined forces with U.S. Women Without Borders, a project of the Women's Funding Network, and helped to generate many thousands of individual messages on behalf of a young Albanian woman who narrowly escaped being trafficked for prostitution.

At the age of 16, "Ann" was kidnapped and repeatedly raped to break her down in preparation for trafficking her to Italy as a prostitute. She managed to escape to the United States, but was denied asylum because she filed her application one month after the one-year deadline imposed on asylum seekers. At the time she applied for asylum she was only 17 years old, was an unaccompanied minor, and was suffering from Post-Traumatic Stress Disorder as a result of her ordeal. Yet the immigration judge said her circumstances did not meet any of the exceptions for the one-year asylum bar. In addition, the judge held that even if she had applied on time, she would be ineligible for asylum because her kidnapping, rape and threatened sale into prostitution were merely "personal" and "criminal" acts, and not the basis for asylum.

CGRS became involved in Ann's case early in her quest for asylum, providing advice and assistance to Ann's attorneys, and submitting an amicus brief to the Board of Immigration Appeals (BIA). After the judge denied and the BIA affirmed, CGRS helped to secure pro bono attorneys for her federal appeal in the Second Circuit: Jayne E. Fleming, Ray Cardozo and Zoe Feinberg of Reed Smith.

At the same time, CGRS launched a campaign, together with U.S. Women Without Borders, to bring public attention to the case. Over the course of a few days in January 2005, almost 9000 emails and faxes were sent to the Departments of Justice and Homeland Security by individuals expressing shock and dismay over the denial of refugee status to this young woman. Activists protested the application of the one-year deadline to minors and demanded asylum protection for victims of trafficking.
The combined legal work and advocacy achieved the desired result. After a court-ordered mediation, the government has agreed to a remand to allow Ann's case to be heard again by the BIA.

Join CGRS's Campaign and Help
Defend Guatemalan Women!

CGRS has long championed the domestic violence asylum case of Guatemalan refugee Rodi Alvarado. Those who oppose granting her asylum raise the specter of floodgates, although the data demonstrate that the U.S. will not be inundated with claims from women fleeing gender violence. But CGRS has responded to this fear with a campaign to focus on the root causes of refugee flows - which in Guatemala is the frightening escalation in violence against women which is committed with impunity.

In the last five years, more than 2000 Guatemalan women have been brutally murdered - many of them dismembered and mutilated - and there have been virtually no serious investigations or prosecutions of those responsible. Please click here to contact your Congressional representative (before May 5) and urge support for the letter to the U.S. Assistant Secretary for the Bureau of Western Hemisphere Affairs expressing concern about the rising numbers of attacks on women and human rights activists in Guatemala.

CGRS's campaign is ongoing, so please stay tuned for further developments.

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