Friday, September 4, 2009

Seventh Circuit Rules "Threat of Forced Marriage" as Grounds for Changed Circumstances in Asylum Proceedings

The U.S. Court of Appeals for the Seventh Circuit has ruled that a threat of forced marriage arising after an order of removal can constitute “changed circumstances” that may warrant reopening of an asylum case. The Seventh Circuit overturned a Board of Immigration Appeals decision that represented a significant set-back in the fight to establish that women fleeing gender-based violence can qualify for refugee status. By overturning the Board’s decision, the Seventh Circuit has reaffirmed that refugees fleeing types of harm that are most commonly faced by women can seek protection in the United States.

When Roome Joseph initially applied for asylum in the United States, along with her family, they were fleeing persecution of Christians in their native Pakistan. When the case was denied, Ms. Joseph’s family returned to Pakistan, but she remained in the U.S. After her family informed her of their intention to force her into an unwanted marriage when she returned to Pakistan, Ms. Joseph attempted to reopen her immigration proceedings to apply for asylum based on this new threat.

Normally, motions to reopen immigration proceedings must be filed shortly after a final order of removal, but a case may be reopened at any time if an individual can show that there are changed circumstances in her country of origin that materially affect her asylum eligibility. In Ms. Joseph’s case, the Board of Immigration Appeals ruled that the family’s plans to force her to marry were “personal circumstances,” and that the changed circumstances rule applied only to “a dramatic change in the political, religious, or social situation,” such as political upheaval. The Board denied Ms. Joseph’s motion to reopen.

Overturning the Board’s decision, the Seventh Circuit held that a change in personal circumstances occurring in the applicant’s country of origin, such as a threat of forced marriage, satisfies the standards for reopening proceedings to seek asylum. In so doing, the Seventh Circuit has strengthened the ability of refugees to seek asylum from the types of harm that commonly threaten women. Historically, gender-related asylum cases fared badly in immigration courts, where judges tended to distinguish between public and private harm, finding torture of political dissidents to be grounds for asylum, while female genital mutilation or domestic violence were merely unfortunate practices that lay entirely outside the bounds of refugee law. But since the case Matter of Kasinga in 1996, the Board has recognized that the threat of practices like female genital mutilation could be grounds for asylum, and women have begun to receive asylum based on types of violence previously considered to be private, or cultural, harm that had no bearing on asylum eligibility.

The Board’s decision in Ms. Joseph’s case, however, signaled a return to the earlier viewpoint that harm occurring in the public sphere is relevant to an asylum claim, while harm occurring in the “private” sphere of the family is not. In ruling that the threat of forced marriage fell outside of the “changed circumstances” rule, the Board limited the rule to events that occurred on the national stage. Since the changed circumstance that forms the basis of a motion to reopen must be materially related to the threat of persecution, the Board’s decision would have once again limited the availability of asylum largely to those refugees fleeing more public forms of persecution – persecution as punishment for political activity, for instance – rather than women like Ms. Joseph, who face persecution at least in part from their own families.

Fortunately for Ms. Joseph and other refugee women, the Seventh Circuit’s decision recognized that a threat of forced marriage was precisely the kind of changed circumstance that could materially affect a person’s eligibility for asylum. This decision preserves the advancements made over the last two decades in the fight to protect women refugees from gender-based violence.

Human Rights USA would like to congratulate Ms. Joseph’s attorneys at Heartland Alliance’s National Immigrant Justice Center and Mayer Brown LLP for their important victory in this case. For more information on this case see Heartland Alliance’s press release.

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