Friday, October 5, 2007

A bad week to be a woman . . .

... if you're seeking asylum in the United States. On Monday, the Supreme Court, which rarely grants cert in asylum cases, issued a summary disposition vacating and remanding the 2d Circuit's decision in Gao v. Gonzales. The Gao case concerns forced marriage as a grounds for asylum; the 2d Cir. had vacated and remanded the Board of Immigration Appeals' summary affirmance of the Immigration Court's denial of Gao's asylum claim based on forced marriage. The 2d Cir. used the catch-all "particular social group" ground for asylum to find that women who have been sold into marriage and who live in a part of China where forced marriages are considered valid and enforceable are eligible for asylum. The court also found evidence that the Chinese government would not protect Gao against forced marriage, and that Gao was unable to relocate safely within China. Apparently the Supreme Court disagreed with this holding, referencing its decision last year in Gonzales v. Thomas to rap the 2d Cir. on its knuckles for determining the scope of the social group rather than remanding the case to the BIA. The concept of deference to administrative judgement seems outrageous given the BIA's summary affirmance policies (explained in detail in my forthcoming article, Refugee Roulette); the Supreme Court is essentially saying that even though the BIA is not doing its job in reviewing the decisions of the Immigration Court, the Courts of Appeals can't engage in full review either.
The picture is not all that pretty when the BIA does engage in full review. Last week, a three-member panel decided the case of A-T-, holding that that a Malian woman's prior experience of female genital mutilation did not qualify for her withholding of removal. While the burden of proof on the applicant is substantially higher for withholding of removal than for asylum (a 51% likelihood of persecution as compared to a 10% likelihood), the reasoning of the decision is still disturbing for all asylum seekers. The applicant argued that, similiar to forced sterilization, FGM constitutes a continuing harm, thus rendering her eligible for asylum. The BIA disagreed with a 9th Cir. case granting asylum on the basis of FGM as ongoing harm, and distinguished forced sterilization from FGM. The Board also took the opportunity to reiterate its recent holding in Matter of A-K- that a parent may not establish eligibility for asylum based solely on her fear that her U.S. citizen daughter might be forced to undergo FGM in their home country. The BIA here narrowed a 6th Cir. case, Abay v. Ashcroft, which had held that as a parent, Ms. Abay should not be forced to expose her non-citizen child to a clear risk of torture. A bad week for mothers, a bad week for wives, a bad week for daughters . . .

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