Commentary, June 1996
In a year in which questions have been raised about virtually every aspect of our immigration policies, there still appears to be a high degree of consensus on one time-honored American idea: giving shelter to those fleeing persecution abroad. Indeed, in a country with a history of welcoming refugees, it is hardly surprising that a magnanimous attitude toward such unfortunates should have deep roots in both the American mind and American law, captured in George Washington's dictum two centuries ago that the United States should be "an asylum to the oppressed and needy of the Earth."
When the Senate passed an immigration bill in early May, amendments that would have tightened procedures in this area were voted down. But whatever happens in Congress, other developments are gathering force which place this aspect of our heritage under threat.
Our statute books, explicitly recognizing and reflecting our traditions, contain provisions that offer two paths to anyone who seeks the haven of our shores. The first is to come as a refugee. This entails applying from abroad, documenting the facts and circumstances that qualify one for refugee status, and waiting, sometimes years, until one's case is rejected or approved by U.S. immigration authorities. Numerical quotas set limits on how many refugees can come in a given year, and there is an ongoing debate over who should qualify. The second path is asylum, for which no numerical quotas exist. Winning asylum entails gaining entry to the United States by one means or another-legally or illegally, on a tourist visa or, perhaps, by climbing a fence from Mexico - and then, once here, lodging a documentable claim.
It is the second category that has lately become deeply problematic. Until about fifteen years ago, the number of applicants, in any given year, was rather small; virtually all were defectors from the Communist world, men and women who had taken sizable risks to escape from ruthless dictatorships. But what amounted to a mere handful in the 1950's and 60's grew to about 3,000 applications a year by the 1970's, expanded tenfold in the 1980's, and has recently mushroomed to approximately 140,000 annually. The backlog of unresolved cases is now 460,000. Whereas, in 1973, the first year for which such statistics are available, asylum was granted to 380 persons, in 1995 the total number was 12,477.
The increase can be explained in large measure by loopholes in our laws. A growing number of would-be immigrants have attempted to exploit our porous borders and lax procedures either to extend a stay in the United States while their application is being considered or simply to gain legal entry to the country and then, illegally, disappear. In this latter category have been a number of international terrorists, including, notoriously, Sheikh Omar Abdel Rahman, the Egyptian cleric who in 1993 helped plan the bombing of the World Trade Center, and Mir Aimal Kansi, a Pakistani national who in 1993 murdered two people outside the CIA's headquarters in Langley, Virginia. Cases such as these have spurred the Clinton administration to reconfigure the process by which asylum applicants are handled and evaluated, and in part also lay behind the attempt, voted down by the Senate, to impose new restrictions
But if the institution of asylum is endangered by misuse, it is also being put at risk by another development, less visible but more profound. Over the past several years, our cultural and sexual wars have begun to extend into this comer of the law. A variety of pressure groups - on the Left, feminists and homosexual-rights campaigners; on the Right, anti-abortion activists - have been waging a battle to reshape the law so as to give sanctuary to their favored class of victims.
The provision at issue in the Immigration and Nationality Act offers protection only to aliens who can demonstrate that they have either been "persecuted" or have "a well-founded fear of persecution," due to their "race, religion, nationality, membership in a particular social group, or political opinion." It is these words which activists seek to broaden and reinterpret. The most visible and successful effort in this regard has been mounted by feminists, spearheaded by the Women Refugees Project, an advocacy group based at Harvard.
According to Nancy Kelly, the Project's director, American asylum law has historically been drawn too narrowly; it has "largely failed to recognize the political nature of seemingly private acts of harm to women." The Project's 1994 "Guidelines for Women's Asylum Claims" therefore redefine what is entailed by "membership in a particular social group"; what counts as an expression of "political opinion"; and what constitutes "persecution."
Thus, the Harvard guidelines suggest that, by virtue of the characteristic that unites them - a common gender-all women fit by definition into at least one of the five categories the law requires for a successful asylum claim: namely, membership in "a particular social group." Furthermore, "political opinion" should not be limited to criticism of one's government or any other form of dissenting speech, but should include a woman's "refusal or inability to conform to religious or cultural norms or the roles assigned to women in her country or culture." Finally, any woman who "opposes institutionalized discrimination against women," or who "expresses views of independence from the social or cultural dominance of men in her society," should be able to assert a claim based upon "persecution" or "fear of persecution" (provided, of course, such views are frowned upon in the country from which she hails).
One year after the Women Refugees Project published its guidelines, the Immigration and Naturalization Service (INS), the agency responsible for enforcing asylum law, issued a new set of internal instructions mirroring many of the Harvard group's interpretations and ideas. With these new instructions in place, a growing number of gender-related cases have been moving through the courts. Perhaps the most celebrated is that of Fauziya Kasinga, a native of Togo who arrived on a false passport, filed a claim for asylum based on her fear of being subjected to female genital mutilation, and was finally heard by the nation's highest immigration court, the Board of Immigration Appeals, on May 2 of this year, with the Clinton administration entering a plea on her behalf.
If feminists have been making considerable headway in revising the way U.S. asylum law is conceived and carried out, so too have homosexual-rights campaigners. Up until 1990, aliens who admitted to homosexuality were formally barred by law from entering the country. That restriction was removed by the Immigration Act of 1990, and in 1994, Attorney General Janet Reno, who oversees the INS, formally ruled that a profession of homosexuality may, under certain circumstances, constitute positive grounds for asylum. In the wake of her decision, dozens of petitions have been lodged by homosexual men and women from various countries around the globe who find themselves on our soil; these claims, too, have been wending their way through the courts, and many are being upheld.
Finally, with sexual politics of the Left spilling over into asylum law, it was only a matter of time before the fray over abortion would also extend into this domain. Congressmen Henry Hyde (R-IL) and Chris Smith (R-NJ) have introduced legislation that would make "resistance to coercive population-control methods" grounds for asylum. And even without congressional action, claims based upon opposition to China's one-child-per-family policy have already been upheld in the courts.
What are the implications of these trends for the future? Thus far, it is true, the number of appeals in the newfangled categories of gender, sexual orientation, abortion, and the like has been small. But as word spreads among potential applicants abroad and immigration lawyers here at home, that is likely to change.
According to an estimate by the Department of State, 110 Million women in Africa, the Middle East, and Asia have been subjected to the barbaric practice of female genital mutilation. Millions more will be subject to it in the years to come. Although the Kasinga case is the most notorious, it is hardly the first to be heard under this rubric: women from several African countries-including Nigeria, Gambia, Sierra Leone, and Ethiopia - have already made such claims, and if there is a ruling in Kasinga's favor, it will set a binding precedent for all other cases of this kind.
Then there is Islam. One-fifth of the world's women live in Muslim countries, where the wall separating mosque and state is either nonexistent or very thin, and where, by the standards of the West, women are not treated very well at all. Will they, too, now be eligible for asylum? In one recent case, asylum was granted to a Jordanian woman whose husband beat her after she allegedly behaved in a manner contrary to the customs of their faith. The judge deemed her a member of a "particular social group" facing persecution: namely, women in Islamic societies "who espouse Western values and who are unwilling to live their lives at the mercy of their husbands, their society, their government." The United States has not yet gone so far as Canada, which in 1993 awarded asylum to a Saudi woman who argued that she would face persecution if she were seen in public with her hair and face uncovered, but we may well be moving in that direction.
Then there is China, a country in which 600 million or so women have been obliged to conform to the regime's policy of one child per family. Late last year, an immigration judge granted asylum to a woman who belonged to the following persecuted social group: "Chinese women who find the one-child policy so abhorrent that they refuse to conform." Is this status to be 'extended in principle to millions of others as well?
As for homosexuals, although the total number who live in countries that ban and punish the practice is unknown, the INS is not standing still. In recent rulings, the agency has offered asylum to a homosexual from Brazil who claimed that persecution of HIV-positive men in that country was tantamount to "genocide"; to an Iranian national who revealed his homosexuality only after he left Iran; and to homosexuals from Turkey, and Venezuela, among other homophobic lands.
Whatever the merits of any particular case, one thing is clear: by making a huge portion of the world's population eligible for asylum, we stand in danger of erasing all the distinctions which allowed our country to offer sanctuary in the past. In fact, far from broadening the protection America offers to the tormented of the earth, the new rulings may undermine the crucial ingredient of any successful asylum policy-namely, public support - and, ironically, lead to an unduly restrictive immigration policy in general.
This would be a most unfortunate result-though, it must be said, the prospect of it is unlikely to deter any of the groups pushing radical change. For many of them, the battle over asylum seems to have far less to do with giving shelter to persecuted individuals than with some larger quest to remake American legal norms and establish victim status for a number of officially recognized groups. In this respect, the push to enlarge asylum categories is but an extension into the immigration realm of an ideological thrust that, in other areas, has already wreaked untold havoc on our domestic social fabric. It is wrenching to think of the damage it may yet do to our noble tradition of offering "an asylum to the oppressed and needy of the earth."