Legal change from the bottom up: the development of gender asylum jurisprudence in the United States
Legal change is often thought of as change from the top down – change brought about by new legislation, regulations, precedent administrative, and federal court decisions, or changes resulting from major impact litigation. Gender asylum in the United States, however, tells an unusual story of legal change from the bottom up, grounded, at least in signiﬁcant part, in direct representation of women refugees. There is a long theoretical debate about progressive lawyering for social justice and legal change. Many critical theorists doubt the role of direct services and individual representation, while some argue more generally that instrumental uses of the law justify the status quo and are ineffective and even counter-productive, legitimizing the law in ways that in fact impede legal and social change (Alﬁeri 2008-09; Wexler 1970). This chapter, in telling at least part of the story of gender asylum in the United States, provides a counter-example of how direct representation can actually change the culture of decision-making and be an effective vehicle for meaningful legal change. At the same time, such representation, rather than disempowering clients (Quigley 1994), can create authentic and non-hierarchical relationships between lawyer and client as I hope the case examples provided in this chapter illustrate. In the narratives that accompany these asylum claims, lawyers, in partnership or ‘alliance’ with their clients (Bellow 1996), develop narratives that portray women refugees not as simple victims, or ﬁtting only within the Refugee Convention’s particular social group ground, but rather, for example, as in cases involving domestic violence, as having feminist political opinions that led to them standing up to their abusers. This chapter, as well as other works, also describes the relationship between direct representation and coalition building for social change with lawyers engaged in such direct representation allying with client-based and other community organizations (Anker 2002; Sharpless 2012). From the enactment of the
Refugee Act of 1980 until the 1990s, asylum seekers ﬂeeing gender-based violence were routinely denied protection and status in the United States (Kelly 1993; Goldberg 1993; Goldberg and Kelly 1993). Serious harms faced by women, including domestic violence, female genital mutilation (FGM), psychological harm, and rape, went unrecognized in United States asylum law until advocacy organizations, including the Harvard Immigration and Refugee Clinic (HIRC), began representing women asylum seekers in increasing numbers and transforming underlying institutions and the law through this direct representation. Today, HIRC and other legal services organizations and clinics regularly win cases involving domestic abuse and other gender-based persecution and gender-related grounds. In January 2013, for example, Isabella,2 a strong and independent woman who ﬂed violent abuse in Honduras, was granted asylum. Isabella was ﬁrst attacked by Jorge, a suitor of her sister’s, at age 13, when he kidnapped her, dragged her to a hotel room, and brutally raped her. Jorge continued to stalk her for years, kidnapping, beating, and raping her, because he considered her, in his words, ‘my woman’ and ‘my property’. Isabella, however, refused to submit to Jorge. She went back to school, worked hard, and became a successful and well-respected manager at a local retail chain. She believed she deserved to be treated with respect, as an equal. When Jorge’s violence escalated unbearably, Isabella ﬂed her country. For years she lived in the United States in hiding, too traumatized to come forward. Finally, after conﬁding in a psychologist she trusted, she was able to open up, and, represented by attorneys at HIRC, Isabella was granted asylum on the basis of the abuse she had suffered. Such a result would have been unheard of 30 years ago. Most gender asylum victories in the United States are won at lower levels of adjudication, either before the United States Citizenship and Immigration Service (USCIS) Asylum Ofﬁce, as in Isabella’s case, or in immigration courts under the jurisdiction of the Department of Justice. However, federal agency regulations addressing gender asylum have been pending for over 13 years without being ﬁnalized. The Board of Immigration Appeals (Board), the administrative appellate body charged with interpreting immigration and asylum law, has failed to issue a precedential decision on the key questions of whether domestic violence can serve as a basis for asylum3 and whether gender per se can deﬁne a particular social group (PSG). Given this dearth of formal law, HIRC attorneys and other advocates representing individual clients have grounded arguments for recognition of gender asylum claims in persuasive, normative, but non-binding instruments, including United States and international gender asylum guidelines, agency guidance and training materials, legal briefs, decisions by low-level adjudica-
tors, and international human rights law. Through direct representation of hundreds of women ﬂeeing gender-based violence, the HIRC and other advocates have not only laid the foundation for changes at higher administrative and federal judicial levels, but have also changed the culture of the relevant immigration agencies, the perspective of judges and other decisionmakers, in effect creating a body of jurisprudence at the administrative level, which, despite its non-precedential nature, has had enormous impact. In a different context, the late Professor Gary Bellow, founder of the Harvard Law School’s Clinical Program and a major force in progressive lawyering, also utilized a bottom-up legal strategy as a means of affecting institutional practice. Bellow’s ‘focused case’ approach involved bringing targeted streams of individual cases in order to compel proper enforcement of the law and change the incentives of institutional players. Through bringing a substantial number of individual claims, he sought to close the ‘enormous gap between existing law and the practices of most public and private institutions’ (Bellow 1977). HIRC, as well as many other direct legal service organizations and clinics, has adopted a similar emphasis on bottom-up representation to change the culture of asylum decision-making and create an expanded body of asylum law. Especially in an area of law with a shortage of ‘hard’ sources, the individual representation model is particularly salient, generating its own jurisprudence and creating an environment in which larger change can happen. Continuing to bring gender asylum claims founded on non-traditional sources of law has made novel legal arguments more familiar, compelling, and legitimate to asylum ofﬁcers, immigration judges, as well as other higher level institutional and judicial decision-makers. This chapter ﬁrst provides a brief overview of refugee law, United States implementation of the United Nations 1951 Convention Relating to the Status of Refugees (Refugee Convention) and 1967 United Nations Protocol relating to the status of refugees (Protocol), and protections for women under the Convention. The chapter then addresses the development of gender asylum law in the United States over the past almost 20 years, examining institutional and legal changes brought about through, among other means, advocacy from the bottom up. The chapter brings to light the role of gender asylum in transforming United States refugee law as a whole, and, in particular, adjudicators’ understanding of key elements of the refugee deﬁnition, including the failure of state protection and non-state agents of harm, the meaning of persecution, and the nexus, or causal linkage, requirement. The chapter includes throughout examples of recent victories in gender asylum cases brought by HIRC, although, as noted, many other direct legal services organizations and clinics have engaged in similar advocacy. Obviously, there have been many defeats and frustrations along the way (e.g. the failure to publish gender guidelines and the many gender asylum cases that have been lost), but there is reason as well for some optimism.