Friday, September 16, 2011

Pushing the Boundaries of Asylum Law

Two recent decisions demonstrate asylum law's flexibility and capacity to address problems that the drafters of the U.N. Convention Relating to the Status of Refugees could never have envisioned. In the first case, a woman from the Democratic Republic of Congo trafficked into sexual slavery in Belgium was granted asylum based on her membership in the particular social group of "young Congolese women who have participated in prostitution." In the second, an immigration judge in El Paso granted asylum to a Mexican woman who had been a witness at the trial of the man who killed her sister-in-law. Both decisions break new ground in surprising ways.
The first decision expands U.S. asylum law in at least two directions. First, the Immigration Judge holds that sex trafficking constitutes harm rising to the level of persecution, a finding supported by the UN High Commissioner for Refugees' Guidelines on International Protection, but not yet supported by case law from the Board of Immigration Appeals or the U.S. Court of Appeals for the Seventh Circuit.
Second, relying on helpful case law from the Seventh Circuit, the Immigration Judge finds that "young Congolese women who have participated in prostitution" is a particular social group, as it is based on a shared past circumstance (her former profession) and would be perceived as a group by members of any society. The young woman was targeted for trafficking to Belgium in part because she was working as a prostitute in Kinshasa. As a result, the judge holds that the applicant's membership in this social group was at least one central reason for the persecution she suffered. Though immigration court decisions have no precedential value, this well-written opinion offers a useful roadmap for other judges faced with similar cases.
In the second case, Monica Arias Hernandez, a Mexican national, was granted asylum. I've not seen a copy of the decision (which is not publicly available), but news reports imply that the grant was based on her participation as a witness at the trial of Sergio Barraza Bocanegra, who killed her sister-in-law, Rubi Frayre Escobedo. In 2008, Rubi's charred and mutilated body was found at a garbage dump; she was 16 years old at the time of her death. Barraza, Rubi's boyfriend, confessed to the crime, but state judges found that he was not guilty because there was not enough physical evidence to convict him. Barraza was alleged to have subsequently joined the Los Zetas drug cartel. In December 2010, Rubi's mother, Marisela Escobedo, was killed in front of the Governor's Palace in Chihuahua while protesting Barraza's acquittal. The police, who were notably absent during the killing, did nothing to investigate.
Monica soon fled Mexico to claim asylum in the United States. She is one of very few Mexicans to be granted asylum in the United States. Her case may mark the beginning of a trend to offer protection to Mexicans fleeing the powerful drug cartels, who have killed 40,000 people since 2006.
In both cases, asylum status is extended to women facing persecution by non-state actors for actions not traditionally defined as a ground for asylum. It's too soon to know how these individual immigration court decisions will influence national asylum law in the United States, but they do demonstrate the willingness of at least two immigration judges to push the boundaries of the law in creative ways.

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