The Jury is Out: Do the new Board of Immigration Appeals’ Decisions Give Victims of Domestic Violence a Stronger Basis to Claim Asylum?

The Board of Immigration Appeals on February 7, 2014 released a twin set of decisions—Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) and Matter of W-G-Rec. 20 26 I&N Dec.20 (BIA 2014)— in which it repackaged what constitutes a “particular social group.”  In order for someone to obtain asylum, she must prove that she has a well-founded fear of persecution based on religion, nationality, race, political opinion, and particular social group.   Survivors of domestic violence must fashion themselves into a “particular social group” to be considered for asylum since gender is not included as a separate category.  Prior to these decisions, a group such as “married Guatemalan women unable to leave their relationships” would be considered a “particular social group,” if it can be shown that the group (1) is composed of members who share a common immutable characteristic, (2) is defined with particularity, and (3) has “social visibility.”  The Board’s recent decisions changed the requirement of “social visibility” to “social distinction.”

Many have pointed out that victims of domestic violence found the “social visibility” requirement difficult to satisfy, because such victims are not typically clearly visible in society.  (See for example, Fatima Marouf, “The Emerging Importance of Social Visibility in Defining Particular Social Group, 27 Yale Policy Review 47(2008)).  In adopting the “social distinction” concept, the Board rejected the UNHCR and other advocates’ position that the Board return to the test it articulated in 1985 in Matter of Acosta, which included only the immutable characteristics requirement.  In other words, they wanted the Board to remove the “particularity” and “social visibility” requirements all together. In response to the new Board decisions, the National Immigrant Justice Center recently issued a statement saying that “the new BIA decisions undermine U.S. obligations to protect asylum seekers.”

Claiming asylum for domestic violence survivors is like putting a square peg in a round hole.  The standard for asylum used in the United States comes from the 1951 UN Convention Relating to the Status of Refugees, which never anticipated these kinds of claims.   Acknowledging that domestic violence should entitle someone from asylum, in 2000, the DOJ proposed regulations that articulated clearer asylum standards. However, to date no final regulations have been released.

Whether or not the standards articulated in the new BIA decisions will benefit survivors of domestic violence is not entirely clear, but there is at least one success story.  The Cleveland immigration court applied the new standards to grant asylum to a domestic victim. The opinion entered on February 24, 2014. To view the Cleveland case click here. The truth is that there will continue to be inconsistent immigration judge decisions and those domestic violence victims who appeal will be placed in limbo by the Board until the U.S. government articulates a coherent policy.

This piece was re-posted from a new blog called “Human Rights at Home” which can be found at: http://lawprofessors.typepad.com/human_rights/2014/03/domestic-violence-survivors-and-board-of-immigration-appeals.html

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Access to Justice in India’s Lower Courts

District Court, Raipur

District Court, Raipur, India

An important article by Jay Krishnan and his co-authors about the challenges litigants face in lower courts in India will appear in  the next issue of the Harvard Human Rights Journal.   Funded by the Ford Foundation, the research for the study was conducted over a 3 year period by dozens of researchers who interviewed hundreds of people in three states in India, including judges, lawyers, and litigants.   This is a welcome study, because (among other things) much of the prior academic work has focused on higher courts in India.  Most people are aware that cases can take a long time to be resolved in India courts (sometimes decades).  What most people do not know, however, is that the Supreme Court and most of the High Courts in India dispense justice relatively quickly.  In an empirical study of two years of Indian Supreme Court decisions, Ted Eisenberg and I have found that it takes the Indian Supreme Court only 2-4 years issue a decision on criminal cases.

It is typically the lower courts that are the ones that are responsible for the inordinate delays.   Jay Krishnan’s study confirms this impression and also adds a lot more detail to the picture of Indian lower courts.   Delays are often caused by lawyers who seek continuances and the system of judge-appointment that requires judges to be transferred every 3-4 years.  Other problems include lack of adequate infrastructure for judges, lack of basic facilities such as toilets and safe drinking water for litigants, confusion among lawyers about which courts have jurisdiction over various matters, judges with large case loads, and too many possibilities for interlocutory appeals.  Despite these problems, researchers found that people still had hope and optimism in the system.

The article also takes great effort to present the unique challenges faced by women litigants, lawyers, and judges.  The article notes that: “women-litigants and women-lawyers face . . .  the indignities of having to work in environments where basic human infrastructural needs are unmet.  Lack of available and clean washrooms, the absence of security to protect them from routine harassment and intimidation, the unavailability of safe transportation to bring them to-and-from the courts to their residences, not enough seating in (male-dominated) waiting areas, and the gender-based verbal prejudice they receive are just a handful of reprehensible conditions that require remedies.”

Women lawyers also face challenges.  According to the article, women lawyers “can be taunted and bullied by their male colleagues and literally shoved aside physically while walking in what is the daily chaotic court-atmosphere in which they work.”   A particularly egregious recent example is that of a young female lawyer who was suspended by a state bar association for stating in a post on Facebook that male lawyers call women “sugar candy” and “tell them you are so beautiful.”   This comes on the heels of a former Supreme Court Justice who was accused by sexually harrassing an intern.   In part because of the national attention given to cases of sexual violence and the ensuing law reform, there is a growing recognition among women in India that this kind of behavior should not be tolerated and exposed.

Human Rights Concerns Missed on Both Sides of the India-U.S. fallout over the Treatment of an Indian diplomat

ImageImage   The Indian government is outraged because a mid-level Indian diplomat was strip-searched before she was sent to jail on charges of paying her domestic worker below minimum wages ($3 dollars an hour) and lying about it in official documents to the U.S. government.   The prosecutor in the case, Preet Bharara, points out that she was treated no differently than any other person who is charged with a felony and sent to jail.

According to Preet Bharara, prison officials need to ensure she isn’t carrying something that could be used as a weapon or anything else prohibited in the prison.  For so many women in prison, this type of searching (including full cavity searches) are a regular and humiliating occurrence in the United States (and many other countries).   Each time a prisoner leaves the prison for a court appearance, for example, she is strip-searched when she returns.  Women in prison have told me that this practice is an affront to their dignity and sense of humanity.  These searches are often unnecessary as was likely in the case of the Indian diplomat.  However, just last year, the U.S. Supreme Court held in Florence v. Board of Chosen Freeholders that even someone charged for a minor offense could be strip-searched without reasonable suspicion if she was entering a prison.  Many prison rights advocates have long objected to this policy.

It is understandable that the Indian government is protesting this inhumane treatment, but Preet Bharara rightly asks “why there is so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse.”

Perhaps it is because many middle-class and upper class Indians employ domestic workers whose daily wages are often less than the price of Dominoes pizza delivery in Delhi.  Government officials, business leaders, and even upper middle class Indians are not used to doing dishes, cleaning their houses, driving their cars, or changing their children’s diapers.   In addition to their low wages, these domestic workers often sleep on kitchen floors and work  more than 12 hours a day.  In my experience of living in India, many of these workers are treated like robots and are so deprived of humanity that they do not even look people in the eye.   Given the lack of enforced laws and regulations, the immense poverty, and inequality, there is no end in sight to this system of servitude.

This is not the first time an Indian diplomat in the U.S. has been charged with abusing a domestic worker–the Indian consul general in New York was charged with treating his maid as a “slave.”  The maid was forced to work  long hours for $300 dollars a month.  To discourage this form of labor trafficking, the Indian government needs to pay its diplomats more money if they want to allow them to replicate in the United States the Indian life-style to which they are accustomed and at the same time comply with American labor regulations.  Of course, getting your hands dirty with daily domestic chores is also an option.

This incident highlights the human rights problems with the treatment of domestic workers in India as well as the treatment of women in prison in the United States.  While the Indian government correctly objects to the unnecessary strip-search, it should also recognize that the status and treatment of domestic workers in India is unacceptable.  The United States, on the other hand, is correct not tolerate human rights abuses in the United States even if it would be permissible in the home country of the diplomat.  Yet this incident should give American officials cause to question the blanket policy of strip searching people who have not been convicted of any crime.   Both governments appear to be missing these human rights concerns in their own countries.

Shadow Reports from the United States to the UN Human Rights Committee

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Many organizations today released “shadow” reports (also known as “NGO Alternative Reports”) that they  submitted to the UN Human Rights Committee.  This Committee is composed of independent experts who are tasked with the responsibility of monitoring compliance with the International Covenant for Civil and Political Rights (ICCPR).   Representatives from the United States government will appear before this Committee in Geneva in mid-October of this year.    The United States submitted a report to the Committee describing its compliance with the ICCPR, which it ratified in 1992.    A number of “shadow” reports submitted to the Committee relate to international women’s rights in the United States.   Legal Momentum, the University of Miami Human Rights Clinics, and other groups filed a report called “Domestic Violence, Gun Violence, and ‘Stand Your Ground’ Laws.”  The Center for Reproductive Rights submitted a report called “Fulfilling Unmet Promises: Securing and Protecting Reproductive Rights and Equality in the United States.”  CLAIM, the ACLU, and the University of Chicago’s International HumanRights Clinic also filed a report on the practice of shackling pregnant women deprived of their liberty in the United States.

The US Network for Human Rights, which has been coordinating efforts on shadow reporting for the ICCPR, has called Day of Action today to draw attention to the United States’ obligations under the ICCPR (among other things).

U.S. Supreme Court Rules Against Anti-Prostitution Pledge

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The U.S. Supreme Court released an opinion today in Agency for International Development v. Alliance for Open Society International finding that a U.S. federal law requiring any group that accepted federal funding for combatting HIV/AIDS (and certain other diseases) to adopt a policy prohibiting prostitution.  The Court (in a 6-2 opinion) found that the law violates the First Amendment (freedom of speech) of the U.S. Constitution.  A preliminary legal analysis of the opinion can be found on SCOTUSblog.  Amicus briefs to the U.S. Supreme Court by the UNAIDS Secretariat and  Deans and professors of public health organizations argued that engaging with sex workers is essential to reducing HIV infection rates.  Durbar (DMSC), a sex worker union in Kolkata, India grew out of efforts by medical professionals to reduce the transmission of HIV.  The experience of this organization in addressing HIV/AIDs highlights the contradictions between taking an anti-prostitution stance and reducing HIV transmission rates.  

Justiciability of the Right to Education

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During this session of the UN Human Rights Council (May 27 to June 14), Kishore Singh, the UN Special Rapporteur for Right to Education, presented a report that describes the ways in which the right to education (which is characterized as an “economic, social, and cultural right” in UN treaties) is  justiciable.  In the report, he also encourages States to promote access to courts for people who claim violations of the right to education.

Many member-states supported the recommendations in his report during the Human Rights Council meeting as you can see from this video.  Portugal even introduced a resolution calling for States to create mechanisms to make education rights more justifiable.

The United States representative, however, expressed concern in regard to several aspects of the report.  The representative, for example, said “while quality of education is the highest of ideals and something we strive for in our schools daily, we do not agree with the phrasing in this report implying that existing rights include quality education.”  This statement comes at a time when we are seeing a crises in our public education system across the nation.  We essentially have a dual public school system— some schools provide quality education while others do not.  Several cities are closing schools (in many cases in minority communities).  Chicago’s Board of Education is closing over 10% of its public schools effective at the end of this school year.  Additionally, the United States representative disagreed with Mr. Singh’s interpretation of a 2003 New York Court of Appeals decision that teacher quality is justiciable.

I had an opportunity to participate in a side-event during this Human Rights Council session on promoting justiciability of the right to education by using indicators in litigation.

Sex selection abortions in India and the United States

In an article in Slate, “It’s a Trick“, I described the great care taken by the makers of “It’s A Girl,” a “documentary” on sex selection abortion in India and China to disguise connections to anti-abortion groups in the United States and to use the language of women’s equality movements.  Many feminist groups across the country and on university campuses have been screening this movie.  When I was asked to moderate a discussion after one such screening, I became curious about the financing sources for the film and the background of its director.   Through searching the ownership of several domain names, I found that Evan Davis, the director of the film worked for Harvest Media Ministries, a media company that makes anti-abortion and other videos for Church groups.  When I asked him about his financing sources, he refused to disclose them, but did admit that some donors were people he met during his tenure at Harvest Media Ministries.

The “documentary” paints a partial picture of the complexities of the situation in India.  Without  knowledge of the realities in India, some people may have been misled by the slanted portrayal to support the film and donate to charities it promotes.  The only scenario on abortion presented in the film is one where those who believe in autonomy rights of women and those who believe in the right of the fetus agree – a woman should not be forced to have an abortion because her fetus is female (or for any other reason).  To this end, the movie extensively covers Mitu Khurana, a woman who left her husband because he physically abused after she refused to abort her female fetuses.

The film, however, fails to depict the most common cases in India –- women who make the choice to abort a female fetus without physical violence or overt coercion.  Poor women in villages have told me that they do not want to bring girls into the world and do not want them to go through what they have faced.   Some might argue that these women cannot make this choice “freely” in the context of widespread “son preference.”

The other type of situation that the film fails to depict is one where a woman would face violence from her husband and in-laws if she didn’t abort the fetus, but gave birth to a girl instead.  Mitu Khurana’s family is depicted as middle class and she escaped from her husband with the financial support of her parents.  Countless poor women do not have that luxury.  Indeed, they are in a “double-bind” — they face violence at home if they do not have an abortion, and face jail if the do.

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