Helping Refugees of Gender-Based Persecution

She was pistol-whipped, raped, beaten unconscious, and kicked until she bled. He used her head to break windows. He threatened her with a machete. When she pleaded with local authorities in her Guatemalan town to help her, they did nothing. They said it was a private matter between her and her husband. Without his approval, “Marina” (not her real name) could not get a divorce. So she fled the violence, leaving her children behind.

But her troubles didn’t end there. She applied for asylum in the United States and was denied. Now, her fate lies in the hands of the U.S. Attorney General, Janet Reno.

“The Attorney General doesn’t intervene in these cases very often,” says Deborah Anker (LLM ’84), an expert in immigration law who heads the Harvard Immigration and Refugee Clinic located at Greater Boston Legal Services. “But it’s clear that this woman was being persecuted by her husband because of her gender and that she had no legal means to protect herself.”

The issue of gender persecution in refugee cases is at the heart of Anker’s recent work, and the basis for a number of awards she and colleague Nancy Kelly have received in the last five years. The pair organized the Women Refugees Project at the HLS clinic in 1992 to assess the plight of women and children refugees, who often face state-sanctioned forms of persecution in their homelands. Taking their cue from Canada, which was the first country in the world to develop gender-specific guidelines for refugees, Anker’s team, and a coalition of human rights organizations, drafted a similar set of gender guidelines for the United States.

“We presented them to the Immigration and Naturalization Service (INS) in 1994. Using our document, the INS developed its own gender guidelines and formally issued them in 1995,” Anker says.

“Essentially, the gender guidelines acknowledge women’s rights as human rights, which are universal,” she continues. &qu ot;They acknowledge that many violations against women occur in the private sphere by non-governmental actors. They describe the various forms of persecution that are unique and/or disproportionately felt by women, such as female genital mutilation, rape, and domestic violence.”

Marina’s case struck a nerve among refugee advocates because in several other recent cases the same Board of Immigration Appeals that denied Marina asylum granted asylum to individuals fleeing similarly violent circumstances.

That inconsistency in rulings led Anker and the Harvard Law School students in her clinic to co-author a brief asking the Attorney General to review the case. Over 100 organizations and individual scholars from across the country signed the brief in late January, and Reno has agreed to have a look.

Anker says domestic violence has become a controversial matter for the INS because of a fear that granting asylum on such grounds is a slippery slope that would lead to a flood of applications by women and children from around the world.

“But that’s not likely,” she says. “International and domestic law contains a very narrow definition of refugee. He or she must face a very specific danger and show a lack of support from the state. The harm has to rise to the level of persecution – a serious human rights violation. The violations have to be pervasive and real, and unless a person can present evidence that the threat is imminent, they’re not going to get refugee status.”

Still, it is Anker’s mission to make sure that those women and children with legitimate cases are granted asylum. To that end, she assists attorneys around the country, sometimes filing amicus (friend of the court) briefs, providing her expertise on the finer details of immigration law and the gender guidelines. Anker’s book, Law of Asylum in the United States (Refugee Law Center Press), now in its third printing, is considered the leading t reatise on the issue.

“There are five grounds for granting asylum under U.S. immigration law,” says Anker. “Persecution because of race, religion, nationality, membership in a particular social group, and political opinion are all grounds for asylum.

“Women’s cases can come under any of these, though most come under ‘membership in a particular group,’ which means that a woman is defined by an immutable characteristic – in this case, gender – that she can’t change or shouldn’t have to change. But that’s not the only one. Some women have been granted asylum for their political opinions, such as holding feminist views.”

Since the guidelines have been in place, several women and some children have successfully attained asylum in the United States, though Anker says statistics are, as yet, unavailable or untraceable.

“The Board of Immigration Appeals hides its cards in these cases,” says Anker. “The decisions are often unpublished and very fact-specific, so as not to create precedents for other cases. It has made it hard to gather information on women’s cases. One of the main goals of the Women’s Refugee Project at the clinic is to track these gender cases and help advise lawyers working on similar cases. That’s how we found out about the girl from Morocco.”

The Moroccan girl, Anker says, was granted asylum in the United States after fleeing her abusive father, who beat her, subjected her to isolation, and denied her an education because her beliefs about the role of women were different from his, which were rooted in his conservative Muslim faith. While the Board cited the gender guidelines in granting her asylum, it also said she was fleeing religious persecution, not domestic violence. But Anker says the case was really about gender, and that the Board opted to call it a religion case to avoid a controversial ruling.

This, and two other cases, in which a woman from Bangladesh a nd a boy from Honduras fled severe abuse and were granted asylum based on their membership in a particular social group, are the basis for Anker’s appeal to Reno on behalf of Marina.

“Marina’s case is about gender,” Anker says. “The Board avoided the critical issue and didn’t explain its gender analysis in this case at all.”

While Anker, Kelly, and the 26 law students in the clinic await word on Marina’s fate, they continue to work on behalf of refugees and immigrants on a full range of immigration matters, from obtaining a green card to fighting deportation.

“The students do everything from developing case theory to writing affidavits to collecting evidence to representing the clients at their immigration hearings and interviews,” says Anker. “They are supervised at every step of the way. They learn essential lawyering skills, and they learn to think and reflect on their role as lawyers, of legal institutions, and the real life of the law in shaping doctrine and policy.”

The United States is a nation of immigrants — but what does that mean for our future? Who gets in and what happens when they get here? Carola and Marcelo Suarez-Orozco are among the Harvard scholars researching and writing about one of the nation’s thorniest political debates. Please see the other stories in our special section: “Harvard Dialogues: Immigration.”