The Niqabi Paralegal

I applied, and have been accepted, for a volunteer paralegal position at the Northwest Immigrant Rights Project. I'm still waiting to hear back on the details of what I'll be doing and what hours they want me to work, but it appears that I'll be working under the supervision of attorney Anita Sinha.

Sinha wrote a very interesting Note for the New York University Law Review in November 2001 called "Eliminating the 'Cultural Hook' for Claims Involving Gender-Related Persecution", 76 N.Y.U.L. Rev. 1562 (link is to PDF).

The note examines three recent cases in which women sought asylum for gender-related persecution. The first case, In re Kasinga, 21 I. & N. Dec. 357 (B.I.A. June 11, 1996), involved a woman who was the victim of female genital mutilation. The second case, In re R-A-, Int. Dec. 3403 (B.I.A. June 11, 1999), involved a woman who was the victim of severe domestic violence by her husband. The third case, In re S-A-, Int. Dec. (Hein) 3433 (B.I.A. June 27, 2000), involved a woman who was also a victim of severe domestic violence, this time by her father.

Asylum was granted in Kasinga and S-A- but not in R-A- and the purpose of Sinha's Note is to propose a theory why.

In Kasinga the type of violence involved was FGM, which is widespread in Africa but not practiced in American culture; Kasinga was from Togo. R-A- involved a Guatemalan woman. S-A- involved a Moroccan woman. Guatemala of course has a Christian-based culture like the U.S. while Morocco is a Muslim country. R-A-'s husband beat her because she didn't behave according to his standards of how she ought to. Similarly, S-A-'s father beat her because she didn't behave according to his standards of how she ought to. So why did S-A- get asylum and R-A- not?

Sinha argues that judges could attribute the behavior of S-A-'s father to his Islamic religion, which seems just as foreign to American immigration judges as does FGM, while the behavior of R-A-'s husband could not be attributed to anything that was foreign. Or rather, if R-A-'s husband's behavior was culturally or religiously based, it would implicate the same culture and religion as we have in America.

In other words, as long as gender-related violence can be blamed on a foreign cultural or religious tradition, judges will grant asylum, but if granting asylum for gender-related violence would involve blaming our own cultural and religious traditions, then judges do not grant asylum.

Sinha wants this "cultural hook" removed. If Western culture and religion are not to blame for the widespread violence against women that we still see in Western countries, then other cultures and religions should not be blamed either. That kind of blaming, Sinha believes, is the result of stereotyping. Worst of all, it leaves women like R-A- unprotected.

What are the factors that led R-A-'s husband to beat her, despite Guatemala's Western and Christian culture? What are the factors that lead Guatemala to have a legal system that offers women like R-A- no real recourse, despite Guatemala's Western and Christian culture? That's what led her to seek asylum in the U.S. and why she should have been granted it.

And are those factors the same as the ones that led S-A-'s father to beat her and that lead Morocco to have a legal system that offers women like S-A- no real recourse? Almost certainly.

Violence against women is not limited to Muslim or non-Western countries. It exists in every country and every culture. It tends to be more widespread in developing countries that are experiencing rapid and substantial social dislocations. People who feel that their lives are controlled by forces larger than them may seek to force their control on others, especially those weaker than them, as a way of compensating. Very often, the behavior is justified by appeals to a traditional culture or to a religious tradition, whether or not the behavior is actually sanctioned by either.

These are the factors that countries as different as Togo, Guatemala, and Morocco have in common. And guess what, the attitudes of the societies and legal systems in Togo, Guatemala, and Morocco towards gender-related violence are also similar. But if you insist on dividing it into Western and non-Western cultures, you have to explain why Guatemala is like the "bad" African and Muslim cultures.

This kind of stereotypical thinking does a disservice to non-Western countries, and it does an injustice to victims of gender-related violence in Western countries, like R-A-. As Sinha says in the conclusion of her article:

If the humanitarian spirit and rule of asylum law is to be advanced, an applicant's life and safety should not have to depend on whether the persecution she has suffered is foreign enough.

Cultural Hook, supra at 1597.