Are the new rules on refugee status overly broad?

I had written a long post responding to this Curmudgeonly Clerk essay. Unfortunately, that post is now lost, lost, lost. It’s too bad – I’m sure it would have been the Best Post Ever. It would have changed your life, and mine.

Oh, well. Here’s a new post responding to CC; any errors in it, any lack of transcendent splendor, any failure to enthrall or enlighten, is entirely caused by the loss of the previous version, and should therefore be blamed on my software and not me.

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Background: Galvanized by the case of Rodi Alvarado, a Guatemalan woman who fled to the US to avoid her murderously abusive husband, Janet Reno proposed new rules which would make it clearer that a woman in Alvarado’s situation would qualify for refugee status and asylum in the USA.

The rules were not finalized before Reno left office. However, John Ashcroft is now considering finalizing Reno’s rule change (or something similar).

Under US law, a refugee must convince a court that, if returned to their home country, they would be “persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion.” (“Persecuted” sounds mild but it’s not; in practice, refugees usually need to show that they’re in danger of something very dire, such as death or imprisonment, to qualify as persecuted – see INS v Stevic.)

Courts have varied in how they’ve interpreted “membership in a particular social group”; who does that include? That’s what the current controversy is about, technically. The crucial aspect of the proposed rule change (pdf file) is how it defines “particular social group”:

The Curmudgeonly Clerk thinks this would be a bad idea. I’ll be addressing CC’s objections one at a time, summarizing CC’s arguments in brief header form – but a paraphrase ain’t the real thing, so please visit CC’s blog and read his arguments in his own words.

That said, what are CC’s objections?

1. If “abused women” can be considered a “particular social group,” then so could any group of people.

CC doesn’t understand the proposed rule changes. “Abused women’ cannot be considered a particular social group under Reno’s proposed rules, because the rules forbid using “the fact of persecution” (in this case, the abuse) as part of the definition of a particular social group. (The point is to prevent circular logic.)

More broadly, CC’s point is that the new rules will make it possible for any group at all to claim asylum (for instance, poor people, or homeless people). That’s nonsense. The rule doesn’t change the definition of “persecution”; even if CC is right that a court would accept being poor as an “immutable characteristic,” merely being homeless or poor doesn’t qualify one as “persecuted.”

On the other hand, imagine a country in which the government decided to start shooting homeless people. In that case, possibly a homeless person from that country would qualify for refugee status; but what on Earth is wrong with that?

2. The proposed regulations represent a radical reformulation of the standards articulated in cases like Gomez.

CC’s argument harps on the Gomez case a lot. However, as the Department of Homeland Security brief (pdf link) points out, “the dominant line of reasoning in United States decisional law interpreting the social group ground is best represented by Matter of Acosta.” Why is this relevant? Because the new rules are largely (but not entirely) drawn from the Acosta ruling (sometimes word-for-word).

CC may disagree with the Acosta ruling; it is nonetheless a standard and oft-used citation in interpreting “particular social group” in the USA (and often cited outside of the USA, as well). Nothing strongly based on Acosta can be accurately termed “a radical reformulation” of asylum law, or of the common understanding of asylum status in the US or abroad.

3. The persecution at issue is the result of a single individual: the victim’s spouse. Asylum law is for people victimized by governments, not people victimized by spouses.

As CC himself admits, asylum law has traditionally protected not only victims of “direct governmental persecution,” but also ” those who are victimized by governments that effectively sanction persecution by private actors.” A battered woman like Ms. Alvarado would logically qualify under this standard; she made multiple attempts to get the government to intercede, but the government refused to do so because she was her persecutor’s wife. It’s hard to imagine a clearer case of a government “effectively sanctioning persecution” by a private individual.

AS I wrote in a post last year, when basic government services – like police protection from violence – are withheld from a particular group, that’s state persecution against that group. This is just as true when police decide it’s not their business to interfere with the “private” problems of battered women, as it is when Rwandan police decide not to interfere with “private individual” Hutus massacring private individual Tutsis. In both cases, what’s going on is governmental bigotry against a group translated into non-action.

CC’s claim that the government of Guatemala has not victimized Ms. Alvarado, shows that CC does not comprehend domestic violence issues. If not for government discrimination, Ms. Alvarado’s husband would have been given a long prison sentence years ago, and there would have been no need for Ms. Alvarado to flee to the USA.

4. The proposed regulations would effectively abrogate a longstanding principle of asylum law, namely that the persecution in question be geographically pervasive. The persecution faced by battered women can in no meaningful sense be portrayed as country-wide.

What the hell is CC talking about?

Keep in mind, we’re talking about a country that’s smaller than Tennessee. I’m bewildered by CC’s argument here – does he think abusers can’t drive cars?

Ms. Alvarado was persecuted no matter where she hid in Guatemala; there is no place in Guatemala in which she’d be safe, or in which her government would be willing to offer her basic police protections. In what meaningful sense is that not country-wide persecution?

5. Homosexuals are to some extent discriminated against in the US; therefore it’s senseless for the US to provide refugee status to persecuted gays. The US government has been criticized by feminists for not doing more to oppose domestic violence; therefore it’s senseless for the US to provide refugee status to persecuted wives.

To see why CC’s argument cannot stand, consider that groups like the NAACP still criticize the US (both the society and the government) for racism, and have done so for decades. Conservatives often accuse the government of discriminating against political viewpoints (for instance, in government-sponsored universities). If we accepted CC’s logic, then we would have to conclude that refugee law has therefore been mistaken all along in providing asylum to victims of racial and political persecution.

Taking CC’s argument to its logical conclusion, we must admit that there is no field of discrimination in which the US is absolutely perfect, in every county of every state, without exception or question. Therefore, since the US can’t claim to be absolutely pure, it is a mistake for the US to accept any refugees, ever. Right?

Of course not. Although feminists rightly criticize sexism in the US, it doesn’t follow that feminists would fail to recognize that there is a difference between the US and Guatemala (where wives don’t even have the legal right to their own property, or to make legal decisions), especially in Ms. Alvarado’s particular case.

CC’s argument shows a disturbing lack of connection to reality. For instance, his argument implies that the situation for gays in the United States ten years ago (in which some, but not most, states outlawed sodomy) is equivalent or comparable to the kind of government persecution suffered by Mr. Hernandez-Montiel, a young gay man who was raped at gunpoint by government representatives. The fact that Hernandez-Montiel did in fact escape significant threats to his life and freedom by moving to the USA (and, for all we know, he moved to a state where sodomy was not outlawed) isn’t even acknowledged in CC’s argument.

CC is right to say that the US isn’t perfect when it comes to domestic violence issues. But he’s using that fact as an excuse for papering over the reality of this case. Imperfect as the US is, it is nonetheless true that by moving here Ms. Alvarado has escaped the persecution that threatened her life and freedom. That is, or should be, the bottom line.

6. This rule change would open the floodgates; the US would be overrun with refugees fleeing bad marriages, poverty, homelessness, etc.

Before I could take this argument seriously, CC would have to explain why this problem has not happened in Britain, Canada, Australia, Germany, Austria, and New Zealand, all of which have asylum laws which recognize domestic violence as a form of persecution.

7. People who favor the rule change are driven by emotionalism, and their arguments belongs more on the Lifetime network than in a serious policy discussion.

CC doesn’t say this explicitly, of course, but his argument is full of Ad Hominem attacks implying that people who favor this rule change are driven by emotions and not logic (his crack about Lifetime appears in his conclusion).

First of all, much as I dislike bringing this up, the sexism of CC’s Ad Hominem is impossible to overlook. Describing concern for women’s rights as mere emotionalism is a centuries-old tactic for dismissing concern for women. I’m not saying CC is personally a sexist (I don’t know CC personally, and don’t know if he’s sexist or not); the issue here is that educated people should know better than to attack concern for women’s rights as “emotionalism,” just as educated people now know better than to refer to African-American men as “boy.” The traditional language of sexism should be avoided in civilized discussions.

Second, what’s so terrible about emotion? In classical rhetoric, an argument without any pathos would be considered incomplete. I’m not saying that emotion alone makes a good argument; logic is necessary, and I think should be primary, in any debate.

But logic that isn’t levied by emotion can easily lead to losing track of what matters. Consider CC’s strange argument about gay refugees, in which he treats rape and threats of murder by Mexican police as if they were somehow equivalent to anti-sodomy laws in the USA; I think it’s CC’s exclusion of emotion from his argument that enabled him to make such a mistake.

UPDATE: The Uncivil Litigator is also criticizing CC’s post..