Domestic violence and asylum: Toward a working model of affirmative state obligations

International Journal of Refugee Law

Volumn 17, Issue 4, 2005, Pages 729-748

  Heyman, Michael G ^a  

^a UNIVERSITY OF ILLINOIS AT CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; MODELING; VIOLENCE;

EID: 30844442398     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/eei029     Document Type: Review

References (116)

1. Convention Relating to the Status of Refugees, 189 UNTS 137 [hereinafter Convention]. The Refugee Convention applied to events occurring prior to Jan. 1, 1951. Its scope was enlarged by the Protocol of 1967 Relating to the Status of Refugees, 19 UST 6223, TIAS No. 6577, 606 UNTS 8791. It applied to those who suffered as a result of events occurring after Jan. 1, 1951. The United States adopted these standards when it became a party to the Protocol. Thereafter, it enacted the Refugee Act of 1980, which incorporated the essential provisions of the Convention. Pub. L. No. 96-212, 94 Stat. 102. Although the Protocol removed the dateline of coverage, both it and the Convention were essentially committed to clarifying the status of World War II veterans. See generally, Goodwin-Gill, 'The Future of International Refugee Law', Refugees, Oct. 1998, at 27, 28.
2. Art. 1(A)(2) of the Refugee Convention applies only to those who have a well-founded fear of persecution 'for reasons of race, religion, nationality, membership of a particular social group or political opinion ...'. Though the terms 'refugee' and 'asylum' are both used in this paper, they are not distinct. Someone seeking asylum must satisfy the definition of 'refugee'. She is simply applying in the country in which she seeks refuge, rather than being admitted under an overseas refugee program.
3. E.g., the concept of a 'well-founded fear of persecution' was finally effectively interpreted in the United States by Cardoza-Fonseca v. INS, 480 US 421 (1987).
4. See n. 2, above.
5. Initially, only four bases existed in the draft Convention. The Swedish representative inserted social group in an amendment without dissent very late in the drafting process.
6. In Re R-A-, 22 I. & N. Dec. 906 (B.I.A. June 11, 1999), vacated by Attorney General Reno on Jan. 19, 2001. After a change of administration, former Attorney General Ashcroft directed the Board to 'refer to me for review' its decision in R-A-. Order No. 2661-2003, Feb. 21, 2003. Unfortunately, as will be discussed, her fate is still very touch in limbo. See n. 87 below and accompanying text.
7. Elsewhere, I have complained of the absurdly elaborate social-group definitions that appear in these asylum cases. They, too, are produced by this mis-conceptualization of the non-state actor. See, Michael G. Heyman, 'Asylum, Social Group Membership and the Non-State Actor: The Challenge of Domestic Violence', 36 Michigan Journal of Lazy Reform 767, 786 (2003).
8. Thus, whatever we think about Chinese efforts at population control, e.g., there's a voluminous record of state action here that aptly reveals governmental motive. See, e.g., Applicant A v. Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 (Austl).
9. E.g., eighteen members of the United States Senate wrote to Attorney General Ashcroft on June 16, 2004, supporting Alvarado's position. They strongly urged him 'to follow the recommendation submitted by DHS in its brief to you in this case: Decide the Alvarado case in a manner consistent with forthcoming regulations, and cooperate with DHS in the issuance of positive regulations to govern social group and women refugee asylum cases'. Ibid.
10. In Re Rodi Alvarado-Pena, File No: A73753922, Feb. 19, 2004.
11. In Re R-A- above n. 6, at 908.
12. Ibid. at 907.
13. Ibid. at 914.
14. Ibid. at 922.
15. The Supreme Court case of Elias-Zacarias talked about the need to show that the persecutor's conduct was in some way actuated by Convention reasons. 502 US 478 (1992). However, as I have discussed elsewhere, that case has been wrongly given a reach well beyond its rather modest contours. See, Heyman, above, n. 6, at 796 and following.
16. 'The adequacy of state protection is obviously an essential inquiry in asylum cases'. R-A- at 923. .
17. Ibid. at 923.
18. Ibid. (emphasis supplied.)
19. Deborah Anker, Lauren Gilbert and Nancy Kelly, 'Women Whose Governments are Unable or Unwilling to Provide Reasonable Protection from Domestic Violence May Qualify as Refugees Under United States Asylum Law', 11 Georgetown Immigration Law Journal 709, 716 (1997).
20. As the UNHCR Handbook points out: 'Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection', Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 17 (para. 65) (1979) [hereinafter Handbook].
21. See Anker and others, above n. 19. This 'unable or unwilling' formulation has become well-accepted in asylum law. E.g., the recent UNHCR guidelines on international protection speak in these terms: '...where the risk of being persecuted at the hands of a non-State actor is unrelated to a Convention ground, but the inability or unwillingness of the State to offer protection is for reasons of a Convention ground, the causal link is also established'. UNHCR, Guidelines on International Protection: 'Membership of a particular social group' within the context of Art. 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc. HCR/GIP/02/02 (2002).
22. See n. 17 above and accompanying discussion.
23. James C. Hathaway, The Law of Refugee Status 106 (1991).
24. Strikingly, the Supreme Court of Canada nearly inverted the Board's analysis. By its view, 'only in situations in which state protection "might reasonably have been forthcoming" will the claimant's failure to approach the state for protection defeat his claim'. Canada (Attorney General) v. Ward, 2 SCR 689 (1993).
25. Indeed, the same rationale has been used in the causation context: Since the aim of the Convention is to provide protection, a model based on assessment of liability is obviously inapposite. Michelle Foster, 'Causation in Context: Interpreting the Nexus Clause in the Refugee Convention', 23 Michigan Journal of International Law 265, 294 (2002).
26. See Catherine Phuong, Persecution by Third Parties and European Harmonization of Asylum Parties, 16 Georgetown Immigration Law Journal 81, 83 (2001) (noting the two schools of thought regarding persecution by the non-state actor).
27. 'The asylum seeker does not have to demonstrate active or indirect involvement of the state in the persecution but, needs to show a failure of state protection. This approach has been adopted by a number of countries, including the United Kingdom, most other countries in Western Europe, the United States, Canada, and Australia'.
28. Ibid.
29. See also, Walter Kalin, 'Non-State Agents of Persecution and the Inability of the State to Protect', 15 Georgetown Immigration Law Journal 415, 417 (2000).
30. See generally, Jennifer Moore, 'From Nation State to Failed State: International Protection from Human Rights Abuses by Non-State Agents', 31 Columbia Human Rights Review 81 (199). 'The concept of effective protection requires that the international community recognize persecution by non-state agents as a basis for refugee status, if the refugee protection regime is to be logically consistent and true to its underlying values and goals'.
31. Ibid. at 105.
32. This is, of course, the view taken by Judge Lindgren. The acts, properly viewed, should be seen as having public significance.
33. Minister for Immigration & Multicultural Affairs v. Khawar, [2000] FCA 1130 at para. 54 (Austl).
34. Ibid.
35. Similarly, in the High Court, Justice Gleeson spoke of equated state tolerance with its 'systematic discriminatory implementation of the law...' Khawar, below n. 30 at para. 26.
36. In the High Court's opinion, Justice Kirby certainly got it right. [2002] HCA 14 (Austl). He noted that it is certainly possible to distinguish lapses in what is non-discriminatory protection, from situations 'from those countries that, for supposed religious, cultural, political or other reasons, consciously withdraw the protection of the law from a particularly vulnerable group within their society'. Ibid. at para. 130.
37. Ibid.
38. Ward, above at n. 23.
39. Immigration Appeal Tribunal, ex parte Shah, 2 AC 629 (HL 1999) (UK).
40. Refugee Appeal No. 71427/99 [2000] NZAR 545 (New Zealand Refugee Status Appeals Authority).
41. Khawar, n. 30 above, at para. 114. Similarly, Roger Haines, of the New Zealand Refugee Status Appeals Authority, has made the same point. Roger Haines, 'Gender-Related Persecution', Global Consultations on International Protection in the context of the 50th anniversary of the 1951 Convention relating to the Status of Refugees, San Remo, Aug. 10, 2001.
42. Haines, Ibid. at para. 29.
43. Ibid.
44. Khawar has been discussed extensively, and is beginning to appear in the opinions of lower courts. Thus, in In Re Maria Trinidad -, an American immigration court, addressed a claim based on domestic violence. It concluded that 'When societal attitudes, including official tolerance, are a substantial factor in persecution, it is appropriate to recognize the unbroken causal link between the state and the non-state actors and look at the motivation of the state actor to determine whether the nexus requirement is satisfied...The asylum applicant need not show the motivation of the non-state actor when the unwillingness or inability of the state to provide protection is related to a protection ground'. In re Maria Trinidad, (San Francisco, Dec. 19, 2002). The judge quoted from Khawar repeatedly. (Case on file with this author.)
45. Heyman, above at n. 7, at 812.
46. Inter-American Commission on Human Rights, Report No 4.01* (Jan. 19, 2001) (Case 11625, Maria Eugenia Morales de Sierra) available at: http:// www.cidh.oas.org/annualrep/2000eng/ChapterIII/Merits/ Guatemala11.625.htm. The Guatemalan court upheld these provisions, reasoning that they provided 'juridical certainty' about the allocation of the roles in marriage.
47. Ibid.
48. See the Convention on the Elimination of All Forms of Discrimination Against Women, GA Res. 34/189, 24 UN GAOR, 34th Sess., Supp. No. 46, UN Doc. A/34/46 (1979) [hereinafter CEDAW].
49. Ibid. at para. 44.
50. Ibid. at para. 39.
51. Assessing compliance with international obligations, Ireland concluded that 'according to the European Court of Human Rights, the responsibility of a state for violations of human rights perpetrated by private individuals is invoked if the State has failed to take preventive action or to provide sufficient domestic legislation to prevent such violations. In this context, the acts of private individuals can include acts of domestic violence where the state has failed to take preventive action'. http://homepage.eircom.net/ ~hrc.asylum.htm (emphasis supplied).
52. Velasquez-Rodriguez, Judgment of July 29, 1988, Inter-Am. Ct HR (Ser. C) No. 4, at 154 (1988),
53. 9 Human Rights L.J. 212, 241 (1988).
54. Ibid. at para. 167.
55. Ibid. at para. 172.
56. Ibid. at para. 177.
57. Ibid.
58. Unfortunately, this has long been the position of many states. 'This traditional unwillingness to acknowledge State accountablility disproportionately affects women who seek refugee protection, since women are so often the victims of privately-inflicted harms. Gender-related harms which are perceived to have occurred in the private, unregulated realm, for which the victims receive no effective State protection, have routinely been dismissed as not deserving of refugee protection'. Elizabeth Adjin-Tettey, 'Failure of State Protection Within the Context of the Convention Refugee Regime with Particular Reference to Gender-Related Persecution', 3 Journal of International Legal Studies 53, 64-5 (1997).
59. See, e.g., Karen Musalo, 'Revisiting Social group and Nexus in Gender Asylum Claims: A Unifying rationale for Evolving Jurisprudence', 55 DePaul Law Review 777, 779 (2003).
60. Ms Musalo represents Rodi Alvarado Pena.
61. See n. 38 above and the Trinidad case for an example of an effective bifurcated analysis.
62. See Refugee Appeal No. 71427/99, above at n. 34, at 2000 NZAR LEXIS 90.
63. Ibid. at LEXIS 91.
64. UNHCR has also accepted this position. See, Global Consultations, Organised by the United Nations High Commissioner for Refugees and the International Institute of Humanitarian Law, Summary Conclusions - Gender-Related Persecution. 'In cases where there is a real risk of serious harm at the hands of a non-state actor (e.g., husband, partner or other non-state actor) for reasons unrelated to any Convention ground, and the lack of state protection is for reason of a Convention ground, it is generally recognized that the nexus requirement is satisfied'.
65. Ibid. at para. 6.
66. Indeed, state-approved persecution may also be inflicted for a variety of reasons. Thus, there's no principled basis for drawing the public/ private dichotomy.
67. R-A-, above at n. 6, at 921.
68. Ibid. at 938.
69. As Deborah Anker has said, 'It should not be assumed that the reason for violence by husbands against wives is "private" or personal. Domestic violence is purposeful behavior intended to control and dominate an intimate female partner'. Deborah Anker, 'Refugee Status and Violence Against Women in the 'Domestic' Sphere: The Non-State Actor Question', 15 Georgetown Immigration Law Journal 391, 401 (2001).
70. Ibid.
71. Foster, n. 24 above at 296.
72. A discussion of causation in the nexus context is beyond the scope of this paper. However, most recent discussions have acknowledged the need to recognized mixed-motive situations, and have usually adopted the view that so long as Convention reasons are part of the mix, the nexus requirement is satisfied. See generally Foster, above n. 24,
73. as well as Heyman, above n. 7, at 802.
74. Anker, above at n. 19, at 728.
75. Indeed, Ms Anker and others have spoken to this issue for some time. See, e.g., Deborah E. Anker, 'Refugee Law, Gender, and the Human Rights Paradigm', 15 Harvard Human Rights Journal 133, 146-50 (2002) (discussing the maturing process of refugee law in the context of the non-state actor).
76. Commission of the European Communities, 'Council Directive on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted', Brussels, 29 Apr. 2004, Council Directive 2004/83/EC.
77. Ibid. at Art. 7 (2).
78. A number of commentators have noted how France and Germany, in particular, adopt the accountability model rather than the protection one. See, e.g., Reinhard Marx, 'The Notion of Persecution by Non-State Agents in German Jurisprudence', 15 Georgetown Immigration Law Journal 447 (2001).
79. The Parliament of the UK, commenting on the Directive, especially lauded its efforts to create a single standard, stating 'it would not, in our view, be satisfactory if the position of Member States were left unharmonised. The concept of persecution should include threats by non-State actors'. United Kingdom, Select Committee on European Union Twenty-Eighth Report part III, para. 71, http://www.publications.parliament.uk/pa/ld200102/ldselect/ldeucom/ 156/15604.htm (2002).
80. Convention on the Elimination of All Forms of Discrimination Against Women, art. 16, GA Res. 34/180, UN GAOR, 34th Sess., Supp. No. 46, at 193, UN Doc. A/34/46 (1979) [hereinafter CEDAW].
81. Declaration on the Elimination of Violence Against Women, GA Res. 48/ 104, UN GAOR, 48th Sess., Supp. No. 49, at 217, UN Doc. A/48/49 (1993). [hereinafter DEVAW].
82. CEDAW, Ibid. at Art. 1.
83. Women's Human Rights, respect, protect, fulfill - Women's human rights: State responsibility for abuses by 'non-state actors', http://www.amnestyusa.org/women/ document.do?id=-CAA06B085B8177F18025696000389C83.
84. Art. 4, above n. 64: 'Consider, where they have not yet done so, ratifying or acceding to the Convention on the Elimination of All Forms of Discrimination against Women or withdrawing reservations to that Convention'.
85. Ibid. at Art. 4, a-q. Indeed, the very verbs used signify a call to action for states. Not only must they 'prevent, investigate ... and punish' acts of violence, but they must develop the proper laws and programs, 'include in government budgets adequate resources' to support these activities and ultimately 'encourage' regional organizations of which they are members to aid in the elimination of violence against women.
86. Ibid.
87. 'Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences', Commission on Human Rights, 52nd Sess., Agenda Item 9(a), E/CN.4/1996/53 (1996).
88. Ibid. at para. 33.
89. Ibid.
90. Ibid. at para. 37.
91. Indeed, the report noted there that the mere 'existence of a legal system criminalizing and providing auctions for domestic violence' was not enough to demonstrate that the state had 'effectively' ensured the safety of its citizens.
92. Ibid.
93. General Recommendation No. 19, Committee on the Elimination of Discrimination against Women (11th Session, 1992), http://www.un.org/ womenwatch/daw/cedaw/recomm.htm#recom19. 'At its tenth session in 1991, the Committee decided to adopt the practice of issuing general recommendations on specific provisions of the Convention and on the relationship between the Convention Articles and what the Committee described as "cross-cutting" themes. Following this decision, CEDAW issued more detailed and comprehensive general recommendations which offer States parties clear guidance on the application of the Convention in particular situations'. http://www.un.org/womenwatch/daw/cedaw/ recommendations.htm.
94. 'The Arusha Declaration of Commitments. on The Role of the Domestic Judge on the Application of International Human Rights Law at the Domestic Level', Adopted on Sept. 11, 2003, http://www.un.org/ womenwathch/law.
95. Ibid. at Declaration 1.
96. They stressed the importance of granting real access to courts for women and children and in creating mechanisms to most effectively assure their enjoyment of their 'right to equality before the law'.
97. Ibid. at 3.
98. Beyond that, though, they also recognized the need for judges to avoid parochialism and to become effectively conversant with human rights norms.
99. References to this case are from the brief by counsel for Ms XXX. Pre-Hearing Brief in Support of XXX's Application for Asylum or Withholding of Removal, at 2, before Judge James R. ?Fujimoto (June 4, 2004). Available at http://www.asylumlaw.org/secure/docs/trial_briefs/ Pakistan/us_pakistan_genderBasedDomesticAbuse_062204.rtf.
100. Telephone interview with Sara K. Rankin, Associate, Sidley Austin Brown & Wood, LLP (Aug. 20, 2004). Ms Rankin co-authored the brief with Ms Melanie E. Walker of the same firm.
101. Brief, above at n. 77, at 4.
102. Ibid. at 5.
103. Ibid. at 8.
104. Ibid.
105. Ibid. at 19, quoting from Mayer Rpt., Ex. D at 2.
106. Art. 16 of CEDAW explicitly guarantees the right 'freely to choose a spouse and to enter into marriage only with their free and full consent'. CEDAW, above at n. 34.
107. See n. 6 above.
108. See 82 Interpreter Releases 269 (Feb. 7, 2005).
109. Ms Alvarado's attorney, Karen Musalo, said: 'It is unconscionable for the Attorney General to leave office without following DHS's recommendation to grant Ms Alvarado asylum; we are disappointed that Ms Alvarado - who has waited ten long years for an answer as to whether her plea for protection will be heeded - still does not have an answer'. Press Release, Center for Cender & Refugee Studies, University of California, Hastings College of the Law (Jan. 21, 2005).
110. See materials at n. 63 above and following and accompanying text.
111. Optional Protocol to the Convention on the Elimination of Discrimination Against Women, GA Res. 54/4, Annex, UN GAOR, 54th Sess., Supp. No. 49, at 5,
112. UN Doc. A/54/49 (Vol. I) (2000).
113. As of June 18, 2004, 75 countries were signatories to the protocol and 62 were parties.
114. http://www.un.org/womenwatch/daw/cedaw/protocol/why.htm.
115. Report of the Special Rapporteur on violence against women, its causes and consequences, Commission on Human Rights, 55th. Sess., UN Doc. E/CN/ 4/1996/53/Add.2 (1996).
116. E.g., a recent Norwegian study concluded that the fixation of doctrine on the criminal acts of domestic violence has improperly obscured its status as persecution. Thus, because of that 'insufficient recognition of non-state actor persecution', asylum institutions have too rarely provided relief. Cecelia Balliet, Study of the Grey Zone between Asylum and Humanitarian Protection in Norwegian Law & Practice, Executive Summary (June 1, 2003). http://odin.dep.no/krd/norsk/publ/rapporter/ 016081-220019/dok-bn.html.