The BIA's Mansplaining of Gender-Based Asylum

Jeffrey S. Chase, Apr. 6, 2021

"“Every woman knows what I’m talking about. It’s the presumption that makes it hard, at times, for any woman in any field; that keeps women from speaking up and from being heard when they dare; that crushes young women into silence by indicating, the way harassment on the street does, that this is not their world. It trains us in self-doubt and self-limitation just as it exercises men’s unsupported overconfidence.” - Rebecca Solnit, Men Explain Things to Me

On April 5, the U.S. Court of Appeals for the Ninth Circuit issued a published decision in Rodriguez Tornes v. Garland.  The opening sentences of the decision are heartbreaking:

Since the age of five, Petitioner has been told that men will beat her if she does not submit. Her mother demanded that she learn how to do housework, how to accept spousal abuse, and how “to obey everything that [her] husband would say.” She beat Petitioner with various objects almost daily, in part to prepare her for future beatings from her husband.

But along with the darkness there was also hope.  The decision’s opening paragraph concludes: “Yet Petitioner came to believe that ‘there should be equality in opinions[] and in worth’ between men and women. She became a teacher.”

Remarkably, over all the years that followed, the Petitioner’s hope survived the most brutal attempts to crush her into silence and submission.  As her mother had foreseen, she endured unspeakable and repeated forms of physical and psychological torture, including beatings and rape, at the hands of her husband.  Yet she continued to express the belief in her rights as an equal, and was brutally punished each time she did so, in an attempt to destroy the part of her capable of forming such belief.  Neither the police nor her own family offered her any possibility of protection.

When she finally succeeded in escaping to the U.S., her abuse continued, merely transferred to the hands of another domestic partner with whom she had three children in this country.  In 2017, our government deported both her and her latest abuser.  Facing the prospect of continued harm in her native Mexico, her still unbroken hope guided her to the U.S. once again, where she was placed into removal proceedings.

Her hope was briefly rewarded when an Immigration Judge granted the Petitioner asylum, ruling that her persecution was on account of her feminist political opinion.  The Immigration Judge alternatively held that asylum was warranted on account of the Petitioner’s membership in the particular social group consisting of “Mexican females,” which formed at least one central reason for her persecution.

It isn’t clear why ICE appealed the IJ’s decision.  On appeal, the BIA acknowledged the Petitioner’s honesty and the ongoing, systemic nightmare of violence she endured because of her gender and unbroken belief that she possessed rights.  And yet the BIA chose to act like a rubber stamp for the administration it served, and found a way to reverse the IJ’s well-reasoned decision.  According to a concurring opinion of the circuit court, the BIA managed this by suggesting that the Petitioner’s brutal suffering was motivated by her “personal relationship” with her abuser.   According to the concurrence, the BIA supported this conclusion by relying on the decision of former Attorney General Jeff Sessions in Matter of A-B-.

Of course, asylum applications require an individualized analysis of the facts of the specific case under consideration.  Matter of A-B- involved a different asylum seeker from a different country who experienced different facts than this petitioner.  So in citing A-B- to reach a conclusion so at odds with the facts of this case, the BIA’s judges were signaling their choice of a specific policy objective over their duty to neutrally apply law to specific facts.

Among the facts the BIA chose to ignore was the opinion of an expert who drew “on more than three decades of research, writing, legal representation, and lawmaking” in support of her conclusion. The expert, Prof. Nancy Lemon of the Univ. of Cal. - Berkeley Law School, explained how all of the weapons at abusers’ disposal are “tied to social belief systems that ‘men are entitled to dominate and control women because the male sex is considered superior.’”  Prof. Lemon went into great detail in explaining the political nature of the mistreatment.  Of course, it mattered not to the Board.

In discussing this case, an esteemed colleague pointed to a decision that the same court issued more than three decades ago.  In 1987, in an opinion authored by Judge John T. Noonan, Jr., a conservative Reagan appointee, the Ninth Circuit concluded that a Salvadoran woman subjected to repeated sexual abuse and other violence by a sergeant in the Salvadoran military had been persecuted on account of her political opinion where the abuser threatened to falsely label her a “subversive if she refused to submit to his abuse.”1  In the words of Judge Noonan, the fact that the persecutor gave the asylum seeker "the choice of being subjected to physical injury and rape or being killed as a subversive does not alter the significance of political opinion..." The decision reversed the conclusion of the BIA that “the evidence attests to mistreatment of an individual, not persecution,” precisely the same finding the Board used more than three decades later in denying Ms. Rodriguez Tornes of her grant of asylum.

In 1993, Justice Samuel Alito, then sitting at the Third Circuit, wrote that "we have little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes."2  28 years later, the Ninth Circuit cited Justice Alito’s words in Rodriguez Tornes, adding that it had reached the same conclusion in its own unpublished 1996 decision.3  These were obviously not the decisions of liberal judges forwarding a political agenda.  To the contrary, these judges were able to transcend political ideology by neutrally applying law to facts; this is what judges do.  As a result, the law of asylum has progressed to increasingly provide asylum protection to victims of domestic abuse.  Immigration Judges appointed by both Republican and Democratic administrations have followed suit, authoring well-reasoned decisions granting asylum in numerous cases of domestic abuse, including this one.

Yet over the same period of time, the BIA has stubbornly refused to budge from its 1980s position that domestic abuse is simply a personal matter not linked to a political opinion within society.  In the words of Jeff Sessions in Matter of A-B-, the vile abuse was simply due to the abuser’s “preexisting personal relationship with the victim.”4

When a mother feels compelled to begin abusing her five year old daughter to prepare her to obey her husband one day, can the inevitable spousal abuse that follows really be dismissed as just a personal matter?  And when the record contained Prof. Lemon’s evidence (because expert testimony is evidence) of “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners,” what unsupported overconfidence did the BIA’s judges rely on in explaining that they know better?

The BIA decided this case during the Trump Administration.  For those hoping that the change in administration will usher in a change in the Board’s view, it bears noting that neither the Clinton nor Obama administrations brought about a sea change in the Board’s approach to domestic violence claims.  Under Clinton, the BIA issued Matter of R-A-,5 a precedent that essentially precluded the granting of asylum to domestic violence victims based on their membership in a particular social group.  The decision was vacated by then-Attorney General Janet Reno, who promised more enlightened regulations on the issue that never arrived.  Similar regulations were rumored to be in the works under Eric Holder, but again did not materialize.  The BIA’s one grudging concession to the political climate of the Obama era, Matter of A-R-C-G-, was later vacated by Jeff Sessions.  While the BIA discussed a second decision under Obama expanding on the narrow holding of A-R-C-G-, it too never came to be.

Based on that history, it seems safe to say that without drastic action by Attorney General Merrick Garland, the BIA will continue issuing the same denials for the same reasons as before.  For every individual such as Ms. Rodriguez Tornes who is able to succeed on appeal, there are countless more who merely end up as stratistics, deported to face more of the horrendous abuse that drove them here in the first place.  The Ninth Circuit recently had to correct the BIA’s determination that attempted gang rape did not constitute persecution,6 and last year, reversed the Board erroneous rejection of a domestic violence victim’s particular social group on the grounds that it contained a few too many words.7  The BIA continues to be composed of the exact same group of judges who issued each of those decisions.

It is the role of the BIA to reach fair decisions by applying the applicable law to the individual facts.  Doing so in the domestic violence context would require the Board to finally recognize opposition to systemic male oppression as a political opinion warranting asylum.  Instead, for decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that “this is not their world.”  The time has come to finally put an end to this sad substitute for true administrative appellate review.

Notes:

1. Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).

2. Fatin v. I.N.S., 12 F.3d 1233, 1242 (3rd Cir. 1993).

3. Moghaddam v. I.N.S., 95 F.3d 1158 (9th Cir. 1996) (unpublished).

4. Matter of A-B-, 27 I&N Dec. 316, 339 (A.G. 2018).

5. 22 I&N Dec. 906 (BIA 1999).

6. Kaur v. Wilkinson, No. 18-73001, __ F.3d __ (9th Cir., Jan. 29, 2021).

7. Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020)."

Copyright 2021, Jeffrey S. Chase.  All rights reserved.  Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals. He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award. Jeffrey is also a past recipient of AILA’s Pro Bono Award. He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.