Re-establishing America as “The Land of the Free:” Adding Gender to Grounds for Asylum
Updated: Feb 2
DONATE to support our advocacy for press freedoms.
By Eric A.S. Harvey, JD & Sal De Los Angeles, Esq.
COPYRIGHT PENDING 2019
Photo Credit: CommunityPsychology.com
On June 12, 2018 ABC News released a heart-wrenching story. The father of a one-year old son was deported to Mexico, after he had lived nearly all of his life in Iowa. Weeks later he was killed as collateral damage of the drug war waging in Mexico for years.
According to the ABC report, nineteen-year-old Manuel Antonio Cano Pacheco had hoped to become a mechanic. He loved playing soccer with his friends. He adored his one-year-old son and girlfriend. He was close to his family that showered him with love.
Cano Pacheco had benefited from Obama’s “Deferred Action for Childhood Arrivals” (“DACA”). It is becoming well-known that thousands upon thousands of undocumented immigrants travel from Central American countries, through Mexico, and into the United States with their children. DACA protects such children from deportation. As victims of drug lords and their gangs, widespread government corruption, and a depressed economy in Mexico, many Mexican nationals cross the border en masse every year with their children. The aforementioned children are known as "Dreamers.” That is what they are. They embody their parents’ hopes for a better life.
Cano Pacheco had lived most of his life in the United States. However, after he committed a handful of traffic violations and a minor drug offense, he was sent back to his family’s country of origin. And there he was brutally murdered. Under current immigration statutes, criminal offenses that would usually result in a slap on the wrist for many white and privileged peoples, often mean deportation for undocumented peoples.
Too many seeking asylum in the United States are turned away at our borders only to return to their respective countries of origin to face what is often mortal abuse at the hands of their problematic governments. If they manage to make it into the United States, they all too often face the same fate. Cano Pacheco is a traumatic example of this.
These denials for asylum and deportations are due namely to how The Immigration and Nationality Act (“INA”) of 1952 is interpreted by judicial bodies overseeing applications for asylum. Its meaning is conveniently interpreted by immigration judiciaries to disenfranchise indigent peoples attempting immigration to the United States.
The aim of this article is to diagnose problems within current immigration statutes, which serve as the problematic bases for denial of entrance into the United States by asylum seekers. It is also the aim of this article to provide solutions to these problems. To this end, I will critique Chicago lawyer Sal De Los Angeles’ interpretation of the statute and his proposals for revisions to the statute. I agree with most of what he said. However, I see other areas of his arguments as lacking.
INA is supposed to protect parties who are seeking asylum that fear returning to their countries of origin. According to De Los Angeles, this fear tends to stem from past persecution these parties experienced in those countries. De Los Angeles emphasizes that this fear may also stem from a well-founded fear of persecution they anticipate upon return to those countries. Protections granted asylum seekers are contingent upon such a fear, as long as that fear entails persecution on the basis of “race, religion, nationality, membership in a particular social group, or political opinion.” For asylum to be granted, a party seeking asylum must prove a well-founded basis for such a fear.
The present incarnation of the statute finds its roots in the 1980 Refugee Act. However, despite its 40-year legislative history, the statute is wanting in certain respects.
De Los Angeles proposes the following two amendments to this piece of legislation; he says his proposal will yield greater fairness to the parties seeking asylum and will result in “effective adjudications:”
(1) to declare gender as one of the grounds upon which any party fears persecution; and,
(2) to increase protections for refugees from automatic disqualification in their pursuits of asylum.
Automatic disqualification often applies to parties that are seeking asylum that have faced highly suspect criminal prosecution in their countries of origin, which then serves as cause for concern for asylum courts that view such prosecution as evidence that the party will compromise homeland security. At least that is the argument asylum courts use much of the time. In other words, the notion is that if someone commits a crime in the past in their country of origin, they will likely commit a crime in the U.S.
De Los Angeles’ First Proposal: Gender as Recognized Ground for Asylum-seeking
INA equates gender with “membership in a particular social group.” Gender-based claims for asylum are categorized as such because they are said to contain an immutable truth about or fundamental characteristic of a party. De Los Angeles says, “Undeniably, however, women are more likely to claim this category when they are seeking asylum than are men.”
Although the Civil Rights Act of 1964 recognized gender as a protected class, De Los Angeles argues that America fails to acknowledge gender as an adequate claim for asylum. Instead, the asylum statute endorses ineffective patriarchal systems by rejecting women’s gender-based claims—claims made to escape or avoid “repressive social norms” (to use De Los Angeles’ words) often related to gender. These cultural standards only deprive women of the right to liberty, he asserts. As a result, America, “effectively sends the message that other countries’ repression of women is permissible, as long as that repression affects all women in those countries.”
Harm done by gender-based persecution disproportionately affects women, De Los Angeles emphasizes. In the realm of stereotypes, developing countries are thought to be particularly malignant breeding grounds for violence against women; however, persecution against women occurs everywhere. According to United Nations Women, the delegation within the UN that handles gender-equality issues, more than 70 percent of women across the world will endure some form of male-perpetrated violence, De Los Angeles asserts, referring to statistics available on UNWomen.org.
Violence against women forms part of the ethos in many countries, and because these anti-feminist cultural practices are intrinsically woven into the fabric of many societies, too many governments are reluctant to stand against and prevent these abuses. The United States is not an exception to this rule. The exclusion of gender (as a legitimate ground for seeking asylum) from the statute precludes the benefits that inclusion of this category would provide in protecting women.
Being able to provide evidence of past persecution or providing a compelling argument regarding well-founded fear of persecution at some point in the future, on the basis of a women’s gender identity alone, often creates problems, says De Los Angeles. It presents hurdles often insurmountable in the context of persecution under the category of “social group.” Recall that “social group” is the designation for gender under the statute.
For example, in Saideh Fisher v. I.N.S., the court rejected the argument that forcing women to maintain a “religiously-inspired dress code” was persecution. However, at the same time, it noted as a general rule that what is said to be prosecution is not persecution unless the party requesting asylum shows existence of “disproportionately severe punishment and pretextual prosecution,” the opinion in Saideh reads. Effectively speaking, this may lead to the conclusion that punishing all women for refusing to follow the normative standard of dress-code does not equal persecution but rather prosecution for a criminal offense. In many countries, failure to observe a “religiously-inspired dress code” is a criminal offense applicable to all members of a group recognized as subject to that “religiously-inspired dress code.” Women are of course the group most frequently subject to this restrictive expectation. So, when the court reached this conclusion, the asylum seeker that had refused to wear her burka was denied asylum.
Furthermore, the harms done to women on the basis of their gender-identity are often extremely difficult to prove, as De Los Angeles points out. This is because the persecution is so heavily embedded in societal normative structures. For example, when a woman requests asylum under circumstances where she has endured rape, domestic abuse, or sexual torture in her country of origin, documentary evidence is challenging to obtain. De Los Angeles substantiates this claim by referring to a study conducted by students at Indiana University’s law school.
To clarify this for the laymen, documentary evidence is any kind of evidence that can be offered at trial, which is not orally based. It is comprised of documents, to put it simply.
That said, it is probably obvious to most readers as to why documentation of rape is widely unavailable. Most people have probably heard about the backlog of rape kits that overwhelm many law enforcement jurisdictions in America, for example. In other words, even in America, where documentation may be available, so many pieces of documentation exist that cumbersome bureaucracies mishandle that information, and they all too frequently simply misplace it.
Such a state of affairs, in regard to the backlog and mishandling of rape kits and other sex crime-related documentation, is not unique to the United States. It is prevalent in many other areas of the world. So, in cases where documentary evidence is challenging to obtain, the victim “often provides only her traumatic oral testimony, and traumatic testimony is often insufficient.” De Los Angeles claims. According to him, oral testimony does not rise to the legal standard for evidence that proves the occurrence of a sex crime. In the absence of such corroborative evidence, he says, such claims regarding sex crimes, are often simply thrown out.
To add insult to injury, victims are often reluctant to speak about experiences where they sustained abuse because they fear re-traumatization and they feel shame over that abuse. This is not a claim unique to this issue. I covered this extensively earlier on this site in the article titled, “Abuse and Its Consequences.” Fear of re-traumatization and the dissociative episodes many women experience during sexual assault often understandably distort a woman’s recollection of events. As both De Los Angeles and I have argued, this compromises many women’s perceived credibility. As a result, he says, women often cannot secure asylum. According to him, this is particularly the case when a man is charged with taking a female abuse survivor’s testimony. This is a claim echoed by a professor I had at DePaul College of Law, Maria Pahl. She is the founder of “Trauma-Informed Legal Services Consulting Group of Chicago,” and I took a course on lawyering trauma survivors with her.
As of late, a great deal of male-perpetrated and traumatically unsympathetic procedures occurs during the taking of testimony in cases of sexually based violence, both De Los Angeles and Pahl argue. In other words, many women survive gender-based violence only to be re-traumatized by misogynistic approaches to the taking of testimony. Being blamed for their abuse reinforces a women’s trauma, we all argue. For example, in the case of a rape, the persecution may re-occur (long after the initial experiences of persecution in any given woman’s country of origin) due to the problematically perceived notion that a woman has not protected her virginity or has relinquished her sexual purity-related qualifications for marriage, say both Pahl and De Los Angeles.
In consideration of the deficiencies in the statute, due to the exclusion of gender from it, it is urgent to add a sixth category to grounds for seeking asylum, we argue. That sixth category should be gender. Amending a piece of legislation is complicated, however. De Los Angeles is the first to admit this. It requires congressional enactment and approval—a long and arduous process. It must then be signed into law by the President. Considering the political climate these days, such a socially irresponsible cancer in America due to our bigoted President, the addition of gender will likely not occur under the Trump administration. Remember how our President said he feels entitled to, “grab ‘em by the pussy.” Nonetheless, this proposal warrants strong consideration; it is in direct opposition to the deprivation of women of their rights--both human and otherwise.
Some may argue that the addition of a gender category, mainly benefitting women, creates a division between the sexes. However, legal scholar J Schenk notes, as quoted by De Los Angeles, that “gender is really a ‘hierarchy,’ and gender discrimination is best understood as a matter of domination and subordination." Thus, “gender is the result, not the cause of sex inequality.” Writes Schenk. In other words, the proposal would add to protections for human rights, and not just women’s rights. This is the contextualization of this issue for which De Los Angeles stands. Given Schenk’s argument, it is irrelevant that the amendment might disproportionately benefit women. In keeping with the more progressive periods of recent history, the amendment is consistent with the more liberal sense of social reform. When a person is sexually assaulted, it is not just gender-violence. It is an assault on humanity, Pahl and De Los Angeles agree.
However, the added security to human rights that his proposal would create is not the only positive result of the suggested amendment, says De Los Angeles. To paraphrase his argument in this regard, it is his contention that the proposal will bolster our identity as a moral compass in the world. He says we could set a powerful and positive example on the global stage. But still some drag their heels, worrying about how difficult it would be to push such a change through Congress, given the cumbersome nature of our highly bureaucratized system of government. That would not be the case. An overwhelming body of precedent points to this proposal. Applying such an abundant body of existing case law to justify such a change would thus not be difficult.
In regard to the above-paraphrased argument, I agree in part, but I dissent in part. I agree insofar as it is imperative and urgent that women’s rights be advocated for far more aggressively.
However, I disagree with the notion that De Los Angeles' proposals, “will bolster our identity as a moral compass in the world.” This is not a question of bolstering our identity as a moral compass. It is about restoring it. America has lost that reputation.
For the longest time, America has relinquished that position of moral authority. Perhaps, the greatest example of this is President George W. Bush’s response to 9/11.
In the wake of the September 11th attacks, President George W. Bush plunged America into an illegal war, bypassing Congressional approval for his military campaign in the Middle East by claiming that weapons of mass destruction were being harbored in Iraq. Thousands upon thousands of young men and women in uniform died looking for those WMDs, but those WMDs were never found. Nineteen years later, we are still stationed in the Middle East, and soldiers die left and right for a cause that Bush argued was righteous but was and remains anything but;
Another powerful example of how America has lost its moral authority is showcased in American governmental antipathy for The First Amendment.
Assaults on free speech, so integral to the maintenance of a truly free and democratic state, occurred frequently in the Obama Administration, regardless of whether or not we can point to President Obama as the reason for that abridgement of the right to free self-expression. Secretary of State Hillary Clinton, for example, asserted the notion that figures like Chelsea Manning and Julian Assange had blood on their hands when they leaked sensitive and privileged information about problematic practices within the American government during the war in Afghanistan. Clinton and many others argued that disseminating such information would compromise national security and the effectiveness of the war in Afghanistan. In line with how The Washington Post and The New York Times handled government corruption in Vietnam War era America, Manning and Assange were merely combating corruption just as the aforementioned publications did. And Assange did so through various journalistic practices. The irony of this is that journalism has been a relatively protected field throughout American history. It has often even been revered as the basis for an informed public so important to the maintenance of a healthy democracy. That is the case with U.S. v. New York Times Co., where one of the chief justices on the Supreme Court at the time hailed a free press as essential toward the maintenance of a truly free and democratic state.
Although I could write volumes on how America has lost its moral authority, I will provide only one more example of this for the sake of brevity.
The struggles women face with gender- and sexually-based discrimination are not in any way new. However, with the election of Trump, it feels as though such discrimination has been unprecedentedly institutionalized and integrated into American government, and even our culture.
President Trump has promulgated anti-feminist notions of sexual politics, necessarily an assault on female Americans’ rights to pursue fulfilling existences as an inalienable right under the Declaration of Independence, unless she has committed a crime and by due process is convicted of that crime. Remember how just moments ago I referred to how Trump once engaged in what he refers to as "locker room talk" about women and their genitals. The conversation was recorded and leaked to the press.
The above-mentioned are just a few examples of how America has lost its reputation as a moral leader. We are not a moral compass right now. It would have been better for De Los Angeles to say that we need to restore this identity as a re-addition to American Exceptionalism.
Allow us to return to De Los Angeles’ argument as to why the proposal of adding gender is necessary. He claims that it will remedy the blind disregard for gender abuse worldwide, especially within the context of domestic abuse. To this end, he points to one landmark case, In re R-A-, where the court dismissed a clear case of extreme domestic abuse. According to him, it was claimed that the underlying reason for the abuse was because the victim was a woman, the wife of the perpetrator. Yet, De Los Angeles points out that the court held that “women beaten by their husbands” could not be a universally recognized and protected group, under the reasoning employed by the court. As a result, the gender-based claim was not an adequate designation for seeking asylum under “social class.” Recall that “social class” is the grouping in which gender finds itself in INA. According to De Los Angeles, the court reached this conclusion because it was claimed that the husband did not see the victim as a member of the non-existent “women-beaten-by-their-husbands” social group.
As my own study of law at DePaul indicates, a dispositive factor in qualifying persecution in one regard or another is how the persecutor perceives the victim, and whether or not that perception informs that persecutor’s abuse of the victim. In other words, if the perpetrator recognizes the party that they abuse as part of the group that that perpetrator deems as a legitimate target for their abuse, that group of people is recognized under the statute within the protected classes enumerated in INA, and the perpetrator's abuse is recognized as persecution. In the absence of gender as a designation that qualifies one for asylum, De Los Angeles argues that the wife could not assert that she was a victim solely because she was a woman. Had gender been a recourse, the court would have likely decided in her favor. As was said, this is not just a matter of women’s rights. To re-iterate, Schenk argues that abuse of a party due to their gender goes beyond discrimination against one sex. It is a matter of protecting human rights.
De Los Angeles' Second Proposal: Protecting Refugees from Automatic Disqualification due to the Exclusion of Some Refugees on the Basis of How They are not “Genuine Victims”
Automatic disqualification from seeking asylum, when an asylum seeker has allegedly assisted in the persecution of another or has directly persecuted another, requires a narrower construction, De Los Angeles argues. This narrower construction is necessary due to the high risk of excluding genuine asylum seekers. Interpretations of the statute, which bar so-called “criminal” asylum-seekers, are misguided.
As De Los Angeles says, INA provides that, “[t]he term ‘refugee’ does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” Section 101(a)(42)(B) & 8 U.S.C. §1101(a)(42)(B) (1982). In addition, the Act states that withholding of deportation “shall not apply,” if the Attorney General determines that the petitioner assisted or participated in the persecution of others. To clarify for the laymen, “withholding of deportation” is more obvious than it might sound. It merely means the decision not to deport a party.
Although the statute aims to bar asylum-seekers that have assisted or participated in the persecution of others, it potentially yields a dangerous outcome. In “Blueprint for the next U.S. Administration, How to Repair the U.S. Asylum and Refugee Resettlement System,” which De Los Angeles cites, Human Rights First asserted that, “overbroad definitions and interpretation of terms ‘terrorist organization’ and ‘terrorist activity’ in U.S. immigration law has ensnared people with no real connection to terrorism.”
Let’s ask ourselves this question. It is a complicated one. Did the U.S. grant Nazis asylum at the end of WWII, as Russian forces descended upon Hitler’s domain, raping, pillaging, and murdering the so-called “Aryan Race” of Deutschland? De Los Angeles touches briefly upon this question, but he does not go far enough in this vein of analysis.
I agree with part of De Los Angeles’ reasons for pointing to the Nazis. He claims that many non-Jewish Germans were coerced into endorsing the Nazi party. For example, young and impressionable Germans were required to enroll in the organization that was The Nazi Youth—the Nazi equivalent of the Boy Scouts. In the organization, these youths were indoctrinated with the genocidal ethos of National Socialism. These youths often went on to wholeheartedly embrace anti-Semitic genocide, and in many cases assist in its execution. However, as young and as impressionable as these youths were, we must ask ourselves whether they should have been called to account. Was agency really present in their decision to submit to this indoctrination, as they were so young and impressionable when they were first exposed to Nazism? Likewise, in the present-day in many cases where an asylum seeker is petitioning American asylum courts for asylum, these asylum seekers were child soldiers that assisted in the execution of problematic military practices. De Los Angeles claims it is wrong to deny such people asylum. In De Los Angeles’ interpretation of such cases, willful agency was not present in these asylum seekers’ childhood exposure to their respective abusive regimes.
I will go further in this vein of analysis. I will say that it is pretty obvious that asylum seekers that have allegedly committed far more benign crimes than genocide are nowhere near as reprehensible as the Nazis. For the most part, the U.S. did not grant Nazis asylum. However, the point is that they did not grant Nazis asylum “for the most part.” However, far less “criminal” asylum seekers are denied asylum in America these days. This is wrong.
We need to historically contextualize this issue.
At the end of WWII, most Nazis met a much deserved and violent end, although many Nazis attempted escape from their Russian aggressors. Abandonment of Nazis, many of whom desperately sought protection from the U.S. military in a last-ditch attempt at preserving themselves after the downfall of The Third Reich, is consistent with any obvious interpretation of the statute discussed herein. Nazis attempted an escape from a kind of violent treatment that I am hesitant to refer to as persecution. However, this conduct certainly at least resembles persecution in some respects. I am hesitant to refer to it as persecution, as that term is a necessarily sympathetic one.
Nazis do not deserve sympathy. Nevertheless, by the end of the war, anti-German sentiment ran deep across many areas of the globe, and understandably so. It is possible to say that Germans were hated because they were Germans. It is also possible to say they were hated not because of their national identity, but because of their war-time genocide, both a politically and culturally informed set of initiatives. Thus, it is necessary to ask the following question: were Germans hated because they were members of a so-called “German” race or because they practiced highly problematic war-time politics. In other words, we need to determine if Nazis were parts of a class that is protected by INA. However, let’s emphasize that the Nazis’ war-time genocide was part of German national identity, and Nazis associated their national identity with their racial one. This was a race war for the Nazis, as I’m sure most people know. The culturally informed facet of the Nazis’ genocidal campaigns implies the statutory element of perception. Recall that, in the statute, for persecution to be recognized as persecution, the persecutor must perceive the persecuted as a member of a particular class of people deservedly subject to that persecutors’ persecution in a way that that persecutor believes is justifiable due solely to race, religion, and other categories that the United States typically protects. That Nazi genocide was also political is suggested by the highly systematized policies and mechanisms behind The Final Solution.
The Soviet Union had a bone to pick with the Nazis not too long after the war began. As the war began, the Eastern Front quickly became the stage for what has often been referred to as the bloodiest conflict in human history. During Operation Barbarossa, which began in June 1941, Axis powers invaded the western region of the Soviet Union, intending to re-populate that region with so-called “Aryan” Germans. The Nazi military bloodily decimated many factions of the Russian army. Twenty million Russians and Jews died at the Axis’ hands. Thereafter, Stalin hated Germany, and he forged relationships with both Great Britain and the United States. The Nazis assaulted Russian cultural identity by killing Russians not only because they were a threat to the Nazi global political agenda, but also because they were Russian, and not “Aryan.” In pursuit of lebensraum (or “living space”) for so-called “Aryan” Germans (perhaps the primary motivation in so much of Hitler’s political agenda), the Nazis targeted non-Nazis to handle the perceived scarcity of resources Hitler thought “Aryan” Germans faced as a result of other cultures’ unjustifiable monopoly on them.
So the Nazis were hated not just because of the political facet of the ethos that is National Socialism, but also because of the racial identity that is often referred to as “Aryan.” Therefore, it is within reason to say Nazis were persecuted, while I do not believe that such a sympathetic term should ever be truly applied to such a traumatically and pathologically bigoted group of people.
That said, remember that I mentioned that the U.S. did not grant asylum to the majority of Nazis. This is where our analysis gets tricky. At the close of the war on fascism, the American Joint Intelligence Objectives Agency engaged in a secret program known as Operation Paperclip. In executing this program, Special Agents of the Army Counterintelligence Corp rescued more than 1,600 German scientists—the majority of them members of the Nazi Party. The scientists, including famed “Father of Liquid Fuel Rocketry” Wernher von Braun, were taken to the United States, where they were used to further various scientific programs. Their path to citizenship, and thus full and tolerant integration into American culture, was expedited.
These former Nazis’ expertise was exploited during the early stages of our race to the moon with the Soviet Union. In “The Race to Space,” Nazis like Von Braun were forgiven for their complicity in Nazism in exchange for their work on space travel. It is often posited that the employment of these scientists made an otherwise futile space battle with the Soviet Union not so futile. It is true that we placed a man on the moon before the Russians did. However, Operation Paperclip draws attention to a degree of hypocrisy in how America has handled refugees in the not so distant past and at present. It seems that if the benefit of assimilating a person outweighs the costs of not assimilating that person, then the U.S. is interested in helping that person. This evidently applies to the most heinous of criminals. It is also true that such a program as heavily organized as Operation Paperclip has not occurred in such a highly systematized fashion since WWII. America may have gained a conscience since then—a conscience which was absent at the close of WWII because the U.S. was battling “The Red Scare" and which may have motivated the United States to function in a fashion it likely perceived to be particularly utilitarian (in the sense that political philosopher Jeremy Bentham would use that term) in order to battle Communism.
While the question regarding whether America granted Nazis asylum is a complicated one, it is important. It illustrates the cost-benefit analysis that can lay beneath the decision to grant a party or group of people asylum. It seems that the majority of the time the U.S. will not assimilate a perceived problematic group of people due to the statutory restrictions on assimilating perpetrators. Protecting national security is often held up as the most important factor in whether an asylum seeker is granted asylum. It seems like every day the world just gets more and more complicated.
The intellectual developments in modernity have brought shades of grey to all of morality. However, plenty of people that have engaged in crime in their countries of origin, in a degree of criminality that is far less acute than what the Nazis did to as many as nine million Jews during the Holocaust, are regularly deported. Thus, automatic disqualifications can be hypocritical. I am not arguing for the repetition of the kind of willful ignorance that characterized Operation Paperclip. I mean only to say that automatic disqualification may be problematic as it does not facilitate a truly meaningful approach to accessing the validity of a party’s claim for asylum. The Nazis were undeniably bad. But to remain consistent with American tradition, ideological malleability is necessary. Genocidal maniacs should not be forgiven their sins. However, ignoring the true circumstances of an asylum seeker’s claims is problematic. If Nazis guilty of genocide can get asylum even though they engaged in the systematic and gruesome affront to humanity that was the Holocaust, then far less violent offenders should be given just as much of a chance at asylum as their more problematic counterparts.
Often the dispositive factor in whether someone is granted asylum is whether they have committed a crime in their countries of origin. The Department of Homeland security espouses that such past criminal behavior means that an asylum seeker will engage in crime in the US, if they are granted asylum. Whether someone has persecuted another or provided material support for those that persecute others generally lacks clarity, De Los Angeles says. Courts and scholars in some cases have struggled to establish the requisite elements of assistance, he goes on to say. Some authorities have interpreted “material support” to entail providing a persecutor with “safe house, transportation, communication, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training.” De Los Angeles cites the case Matter of A-C-M in saying this.
Singh-Kaur v. Ashcroft is another example De Los Angeles uses to substantiate his argument. In this case, the court held that “providing food” or “setting up tents for a religious congregation” qualified as “material support” to a terrorist organization. As a result, the asylum seekers that had provided this food and set up the tents were automatically disqualified in their pursuit of asylum.
Broad interpretations of “material support” overlook the necessarily complicated nature of an asylum seeker’s application for asylum, however. De Los Angeles is adamant about this. In regards to this, in the legal textbook Refugee Law and Policy, De Los Angeles points to how it is written that the “[t]he [l]ack of [e]xceptions [v]iolates [i]nternational [l]aw” is problematic because such broad interpretations of “material support” do not allow for comprehensive review of any given situation. This is especially the case for situations that involve elements of “duress” or “insignificant amount of support.” People in such situations are denied recognition of the extenuating circumstance that duress can involve, and “duress” and “significant amount of support” can be “reasonable grounds for regarding [the refugee] as a danger to the security of the [U.S.]” (De Los Angeles quoted the aforementioned textbook extensively in his arguments for the two proposals addressed in this article.)
For example, De Los Angeles asks whether a farmer that fears for his or her life and the sustainability of his or her crops in the face of guerillas that threaten to kill that farmer or that farmer’s family and decimate his or her agricultural livelihood by setting fire to all of his crops, unless that farmer provide those guerillas with food and shelter, be considered a legitimate threat to U.S. national security? Unfortunately, it seems that such duress is not grounds for relief from suspicion of anti-American subversion. It is usually the case that such a man or woman in a situation such as this is denied access to asylum. A narrower interpretation of the statute, as De Los Angeles advocates for in his proposal, would accommodate the particularities of an asylum seeker’s circumstances. It would not arbitrarily draw lines between victims and wrongfully perceived non-victim national security threats.
But there is hope. Despite the preponderance of overbroad interpretations, some courts have more thoroughly reviewed the specifics of asylum seekers’ claims. De Los Angeles points to these cases repeatedly.
In I.N.S. v. Juan Anibal Aguirre-Aguirre, De Los Angeles out points out that the Court considered a San Salvadorian national’s asylum claim and ruled that insufficient evidence for denying his claim was present. The San Salvadoran national, a devoted participant in his country’s Student Union and member of The National Central Union political party, had engaged in violent protest of devastatingly high bus fares and his government’s failure to investigate the disappearance and murder of many students. The San Salvadoran national had set a bus on fire and assaulted passengers on the bus. On another occasion, he had broken store windows and looted merchandise within that store for the sake of the protest. Withholding of deportation was deemed appropriate, as it was anticipated that if the San Salvadoran national were to return to his country of origin, he would be persecuted for his politically motivated crimes. In other words, he would be persecuted on political grounds.
Similarly, in another case De Los Angeles cites, Matter of Rodriguez-Majano, the Board of Immigration Appeals (“BIA”) reviewed another San Salvadorian national’s case. The BIA held that although the individual assisted guerrillas during the San Salvadoran Civil War, the assistance he provided those guerillas failed to reach the statutory level of what constitutes “material support.” The court held this because the “activities directly related to a civil war [were] not persecution.” The San Salvadoran in question was forced to provide this assistance. On one occasion, guerillas demanded on threat of death that he carry supplies to their truck. On another occasion, these guerillas demanded in the same way that he drive supplies to one of their military facilities. If the court were not to recognize the coercion that led this San Salvadoran to engage in what was wrongfully perceived to be grounds for automatic dismissal, that court would have excluded a victim from asylum in spite of the legitimacy behind that victim’s claim for asylum.
These two cases highlight the need for a narrower interpretation of the automatic disqualification clause in INA, De Los Angeles asserts. This notion that there is a need for a narrower interpretation is at the base of his claim for revision of the statutory elements dictating automatic disqualification. A narrower interpretation would rightfully exempt persons with no actual connection to terrorism, he is adamant in saying. De Los Angeles emphasizes that Human Rights First’s “Blueprint for the Next Administration” underscores four recommendations for handling this problem:
(1) “[s]upport legislative adjustments to immigration law definitions to target actual terrorism;”
(2) “[I]mplement . . . exemption[s] swiftly;”
(3) “[a]dopt sensible legal interpretations;” and,
(4) “[i]ssue regulations to prevent unjust exclusion under ‘persecutor’ bar.”
While the first recommendation requires congressional approval, the latter three can be implemented entirely by the executive branch, De Los Angeles explains.
In the context of the first recommendation, it is necessary for Congress to more narrowly define “terrorist organization” and “terrorist activities,” as provided in INA §212(a)(3)(B). At present, these terms are interpreted so broadly that they disqualify victims that acted under duress, and even child soldiers recruited while young and naïve, Human Rights First Blueprint claims. We pointed to the issue of child soldiers in the context of Nazism earlier.
Now let’s consider the latter three recommendations in the context of an example. In tandem with The Department of Homeland Security, the Justice Department can influence exemptions for the adjudication of cases involving individuals that did not cause any human rights abuses or crimes and pose no serious threat to our security. Under circumstances such as these, such individuals “are caught in a web of the poorly conceived notion of the 'persecutor bar,'” or the set of standards by which an individual is deemed to be a persecutor or not a persecutor. Here, I am quoting De Los Angeles again.
The executive branch can assist in narrowly defining “material support” by reviewing any given former administration’s version of the statutory language relevant to “material support,” and they can further clarify one of the more semantically ambiguous designations that is “routine commercial transactions” within the context of “material support.” De Los Angeles refers to parts of INA for this aspect of his argument. He contends that, “the executive branch should clarify that interpretation of ‘material support’ exclude individuals ‘acting under coercion,’ as well as children who were forced to enlist for combat.”
Finally, the Department of Justice should provide regulations that discourage automatic exclusions under the “persecutor bar.” As De Los Angeles points out, this is the case after the court’s decision in Negusie v. Holder. In this case, an Ethiopian national participated in the persecution of others under coercion and duress. The Court held that the "persecutor bar" did not apply given the Ethiopian's lack of true agency. See Negusie, 555 U.S. 511 (2009). The Department of Justice should observe this precedent and provide immigration judges with clarification for “prevent[ing] unjust exclusion[s].” Refer to INA.
Adding a sixth category of gender for grounds of seeking and securing asylum could help women abroad that are subject to persecution. This is the case in reasons for withholding of automatic deportation, as well. Notions of true justice (in the form of legitimate manifestations of American Exceptionalism) should not be confined to the past. The United States should restore its identity as a moral authority by acknowledging all forms of persecution, including gender-based persecution, De Los Angeles contends. Those who are seeking asylum for gender-based reasons should be admitted to “The Land of the Free.”
In addition, to automatically disqualify an individual under the vague "persecutor bar" distorts the more righteous notions of justice celebrated during the best periods of America’s history. Too many victims are re-victimized when they are denied protection from their persecutors. The long-term goal, that is enactment by Congress of these amendments, will usher in far more humanitarian forms of justice.
Justice should protect people. It should not deny people those protections based solely upon poorly devised and outdated language found within statutes relevant to asylum. Such changes will lead to far more effective adjudication in asylum cases.
As was the case with the Dreamer mentioned at the beginning of this article, minor criminal offenses, sometimes committed under duress or by coercion either during periods when an undocumented person benefits from DACA or in their countries of origin before they seek asylum, should not be grounds for deportation. The Dreamer in question may have not acted under duress or coercion, but the crimes for which he was deported were minor. They were crimes for which most white and privileged people would likely only receive a slap on the wrist. Cases such as that of the aforementioned Dreamer are all over the news. However, no change has occurred to prevent these tragedies. We need to observe human dignity far more aggressively than we have.
DONATE to support our advocacy for press freedoms.