Ask a Feminist: Deborah Anker Discusses Gender and US Asylum Law with Aziza Ahmed

Deborah Anker and Aziza Ahmed

Ask a Feminist is part of the Feminist Public Intellectuals Project.

© 2019 by The University of Chicago. All rights reserved.

The following conversation took place on July 12, 2019. An edited transcript is below.

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Aziza Ahmed: Hi, this is Aziza Ahmed. I’m a law professor at Northeastern University’s School of Law, and I’m so happy to be talking to Deborah Anker today as part of the Signs “Ask a Feminist” series.  Deborah, thank you so much for taking the time to be with us on this podcast today.

Deborah Anker: My pleasure.

AA: Your work has been so instrumental in helping advocates and lawyers acknowledge the complexity that gender brings to immigration and asylum law. Could you tell us a little bit about what drew you to this work?

DA: Sure. I started work after law school. We started a law collective in Dorchester [Boston], a group of us. It was during the time of school busing, and there was tremendous violence against African American people. There was an African American family that moved into Dorchester and was attacked every single night—an organized group of kids in the neighborhood throwing stones at their house. It’s quite amazing to think about that having happened quite so recently here. I was a ground level civil rights lawyer at that point. And our collective broke up, people went their separate ways. There was a job opening in immigration and it sounded very appealing to me, although I knew nothing about it.

But I think it was appealing because it connected me to my own family’s background. We were all Holocaust survivors in one way or another. My grandparent’s family, a lot of them didn’t make it over here, and the reality of the Holocaust was a constant presence in our lives, and so I felt like this was a civil rights issue that I could relate to. I think once I got into the work, I found it very compelling because asylum work is really writing these biographies, people’s biographies, and putting them in a political and cultural context. So, it’s a really fascinating kind of work. I think it also right away made the connection to race for me, although I don’t know that that was generally true, that people understood it, but I understood the issues of race. Race was very important to me, civil rights was very important to me, so it connected me both to my own background and to issues of race. I identified very much with the civil rights movement at that time—now were talking about the mid- to late seventies. And I think I had a hard time connecting to the women’s movement, although I certainly felt sympathetic and a part of it, I didn’t really feel a part of it because I didn’t really feel like it engaged those issues about race at that time.

AA: That’s interesting.

DA: And I am sorry to say that. I don’t know how much of that was my own perceptions and stereotypes that I walked in with and how much of it was reality. I think it’s very different now. I think that feminism is very conscious about race. It’s interesting because I look at my students now and I wonder how they do it, because it was a very different environment when I entered this field. We got a major Supreme Court decision, Cardoza-Fonseca, which said that US law had to conform to international law on the definition of “refugee.” And that became very important and made this field so interesting because you were dealing with international law, you were dealing with domestic law, you were dealing just with people and getting powerful, very detailed account of their story and what had happened to them.

But the issue of race is interesting, how I felt about it then. I am not quite sure why that was happening, but it did feel like a white women’s movement and I think maybe part of me wasn’t accepting the feminist part of it. Once the focus became violence against women, I think the women’s movement became much more compelling to me.

AA: As opposed to being purely about sex equality, you mean?

DA: Yeah, as opposed to being, “How many women are on the law faculty at Harvard Law School?” Or how wonderful it was—and it was wonderful—that our dean gave free tampons in the lady’s room.

[click_to_tweet tweet="'That was fundamental to human rights feminists—conveying that notion that states had a responsibility to protect you from harm from private, nonstate actors.' —Deborah Anker in the latest Ask a Feminist" quote="That was fundamental to human rights feminists—conveying that notion that states had a responsibility to protect you from harm from private, nonstate actors." theme="style2"]

AA: I wonder if, for listeners who aren’t as familiar with asylum law, we might just do a little “the elements necessary to prove” [asylum].

DA: Under asylum law, you have to meet the criteria of the international definition of “refugee,” which was incorporated into our law directly in 1980. A refugee is someone who has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion. So, you have to show that you have a well-founded fear, that the harm that is being directed at you is targeted in some way. You have to show that you’re at some specific risk. And you have to show that the harm you face rises to the level of persecution, that you face a serious harm and that it’s a result of a failure of state protection. I think that’s a critical element in asylum, having to show that the state has failed. And I think one of the things we’ve come to understand about that failure of state protection is it’s not just states themselves being the agents of persecution but failing to protect you from forms of persecution by private actors. I mean, that was fundamental to human rights law, that was fundamental to human rights feminists—conveying that notion that states had a responsibility to protect you from harm from private, nonstate actors.

And then you have to prove that there’s a connection between the harm that you fear and one of those five grounds. You have to show that nexus to one of the five grounds. As I say it, I realize it’s quite complicated, but all of those elements have to be met.

AA: I was curious to hear from you about when you felt like feminism really came to immigrants’ rights work. I’m sure in communities themselves it was there…

DA: I really thank the women’s movement for challenging the public-private distinction. That was key. And we learned that from the women’s movement—that so-called “private acts of violence” were of public concern and of human-rights concern, or were human rights violations. That was incredibly important.

AA: And became foundational to the types of gender-based asylum claims…

DA: It became very, very foundational for the cases that we brought. It was really the women’s movement that made us start thinking about it. People would come in and we would interview the man and find out what his problems were. We never thought that what happened to women would rise to the level of persecution or would be considered persecution by the adjudicators and by the authorities. That was incredibly important. That rape could constitute prosecution, that “private acts of violence” could constitute prosecution. I think we now understand that being forced to leave your child as a form of persecution.

[click_to_tweet tweet="'We learned ... from the women’s movement ... that so-called “private acts of violence” were of public concern and of human-rights concern.' —Deborah Anker " quote="We learned ... from the women’s movement ... that so-called “private acts of violence” were of public concern and of human-rights concern." theme="style2"]

AA: Connected to this idea about how gender-based asylum claims started getting litigated and moving through the system, you have this fascinating article in which you describe, drawing on Gary Bellow’s work, the “bottom-up approach”—that it took many, many, many cases to get systemic change, which is different from a broad-based policy change or legislative change. I was wondering if you could talk about what it felt like to be doing those cases and trying to create the space to successfully get through a gender-based asylum claim.

DA: We did not have a body of law. We might not even have had one case, right? We brought these cases, these are very compelling cases, we really developed these cases. These clients had long, long narratives. And we began winning them. We began winning them at the immigration-judge level, at that ground level of adjudication. I think over time we began to change the culture of the immigration court. Even today, even with everything that Mr. Sessions has tried to do—his recent decision saying private harm is not persecution and you can’t make a claim based on gang violence. The most progressive jurisprudence is coming out of the immigration court.

I have a treatise on asylum law that I write every year, and we highlight these decisions of immigration judges. Some of the decisions do get written down: the judge issues a written decision when the government is going to appeal the decision. And we have some amazing decisions being made by immigration court judges, which is why he wants to shut down the immigration court system all together.

We just seized every opportunity we could. There was a case, a famous case for us, a famous third circuit case involving an Iranian woman who refused to wear the chador, the Fatin case. The decision was written by Alito, when he was a judge in the Third Circuit, before he was a justice. He said she didn’t really show that she would be harmed, that the harm she would face would raise to the level of persecution because she was a feminist. But he said feminism could be a political opinion, that gender could define a particular social group. So, we just said, “Great!” We took the dicta in that decision, his discussion about feminism as a political opinion and the particular social group ground, and we ran with it. We went to court and said, “See, judges have acknowledged it.” I should also say that around this time when the field was developing, the Canadians were very active.  The Canadians had a very strong feminist community, they had what was considered the best asylum adjudication system, there was very progressive jurisprudence. At any rate, a bunch of women in their immigration board came out with these gender-based-asylum guidelines. So that was another thing: We didn’t have law. We’re going to get the government, we’re going to get women in the government to write gender guidelines, and then were going to come and argue the gender guidelines. They’re not much—they’re subregulatory—but we’ll argue them, and then the gender guidelines get cited by the courts, and then we say the gender guidelines have now taken on a normative effect because they’ve been cited by the courts. But the Canadians really took the lead and we developed a relationship across borders. There were many different NGOs [nongovernmental organizations] and law school clinics that were beginning to make these connections across borders. So we’ve had an ongoing relationship with the Canadian Council for Refugees, for example. Canada had their guidelines and we took them and we refurbished them, presented them to the government. Those were the Clinton years. Clinton did many terrible things to immigration law, many terrible things, but this wasn’t one of them. They embraced them and they came out. I remember the weekend they came out, they came out on Memorial Day weekend. I remember when I was talking to reporters—that’s the other thing, there was women journalists who were really interested in our stories.

AA: What year is this?

DA: This is 1995.

AA: OK.

DA: So, it was Memorial Day weekend that the guidelines came out. I had told all the reporters, all the reporters wanted to speak to the Federation for American Immigration Reform (FAIR), this racist, anti-immigrant group that now is writing the script for Mr. Trump. And I said, “Don’t talk to them! They’re not experts in the law, they’re not lawyers. They’re just advocates for a particular point of view on immigration.” And these stories came out in the Times, in the Post, and they didn’t interview FAIR. They did not interview FAIR. There was no negative publicity that occurred. I just remember Doris Miessner, Phyllis Coven…. So this is a story of women in government, and women as advocates, and women as journalists, all combined to push this forward.

[click_to_tweet tweet="'This is a story of women in government, and women as advocates, and women as journalists, all combined to push this forward.' —Deborah Anker on incorporating gender into US asylum law" quote="This is a story of women in government, and women as advocates, and women as journalists, all combined to push this forward" theme="style2"]

Much later there was a big setback in this case, Rodi Alvarado, who was a woman who had fled severe domestic violence in Guatemala, and her claim was denied. The Board of Immigration Appeals (BIA) wrote a decision saying, “This kind of harm is not serious harm for immigration purposes. She doesn’t meet the criteria.” It was terrible setback but we kept asking for a reconsideration of it, and Janet Reno vacated the decision in Rodi Alvarado. It was one of her last acts. She really should be honored more than she is, I think. She came into office and she withdrew a board decision finding that being gay was not a basis for asylum protection. She vacated that decision and wrote a different decision saying that it was. She really established that precedent right at the beginning. We never had problems with recognizing LGBT status for a basis for asylum, as a particular social group. And she ended by vacating the Rodi Alvarado case. So, she vacated it and for ten years we argued it. Attorney General Ashcroft, under Bush, was trying to reinstate the decision. We organized and wrote an amicus brief on behalf of 186 law professors and NGOs. We submitted it in that case, and eventually the attorney general backed off.

Janet Reno, when she left office—there had been proposed gender regulations. Sorry, I forgot about that. There were proposed gender asylum regulations and she said Rodi Alvarado’s case should be redecided in light of those proposed regulations. Those proposed regulations never got published; they dragged on and on and on and they didn’t get published. But meanwhile, there were again women in government trying to find a way—at least some limited way—to allow these cases to go forward. One of the briefs they submitted in the Rodi Alvarado case said “women unable to leave relationships” was a basis for asylum protection. I thought the formulation was very problematic because it was gender that defined the particular social group. Why couldn’t we say gender defined the particular social group? Well, they could never get consensus in the government—from the enforcement people in the government—that gender itself could be the basis for a particular social group. But they started making that argument and we started taking their brief into to court. We said, “By the way, this is the government’s position.” And the trial attorneys would say, “That’s not our position.” And I said, “Well, you submitted a brief.” So, the brief became our evidence of what the government’s position was. Eventually, they issued a decision in 2014 that said, “Women who aren’t able to leave a relationship constitutes a particular social group, those are characteristics that you cannot change.”

AA: Interesting.

DA: We from the beginning were holding our breath, because we thought the analysis was bad. It wasn’t really coherent in terms of an interpretation of the refugee definition. That we had to say that gender itself defined the particular social group because the refugee definition has different elements in it, and it has an element that looks at targeting. That’s the “well-founded fear” element. There’s the element that looks at harm, at state responsibly—that’s the persecution element. And then there’s the grounds. And we said, the particularization of a claim will take place at the beginning—about what constitutes a well-founded fear, or is the harm severe enough. But having a big group like gender was not a problem, in fact that was what the refugee definition was all about. Our Board of Immigration Appeals had held that the particular-social-group grounds should be defined in terms of an immutable characteristic or a characteristic that a person cannot change or shouldn’t be asked to change. “Unable to leave a relationship” is not a characteristic, it’s an event.

But we’ve been running from gender. We’ve been running from gender in this jurisprudence forever. We’re still running from it.  And at every single immigration conference, I come and say “you’ve got to define the group in terms of gender.”  In terms of narrowing it and particularizing it, that’s the job of other elements of the refugee definition. And it’s beginning to catch on. We’re seeing more and more of these immigration judge decisions that recognize gender itself as the particular social group.

But Sessions withdrew that decision as a precedent decision. That’s what he did last year. So he withdraws that precedent, and we start pushing a more principled, gender-sensitive approach than that decision itself embodied.

AA: What did that more principled gender perspective look like?

DA: It’s recognizing that gender itself can be the basis of a claim. You don’t have to fancy it up with “unable to leave a relationship.” I mean, those are all aspects of a claim. But gender itself is ground for asylum. So it’s a very interesting moment. I mean, he’s trying to stop the judges from adjudicating at all.

[click_to_tweet tweet="'We’ve been running from gender. We’ve been running from gender in this jurisprudence forever. We’re still running from it.' —Deborah Anker on US asylum law" quote="We’ve been running from gender. We’ve been running from gender in this jurisprudence forever. We’re still running from it." theme="style2"]

AA: Thinking about Jeff Sessions brings us to the present moment in many ways, so I’m wondering if you might talk a little bit about the kind of gendered claims people might be trying to make as they enter the United States.

DA: So, we have been advancing the notion that resistance to violence in the home, for example, is a form of political opinion. There was a wonderful decision that I honor. It’s a judge from the Ninth Circuit who died recently, Judge Noonan. It was the case of a women, this was during the [Salvadorian] civil war, who was forced into basically sexual and labor bondage by a sergeant in the Salvadorian army. She was forced to do all of his house work and submit to him sexually. She fled, and he found that her act of flight was an act of resistance, an expression of political opinion that women shouldn’t be treated this way. I think he read into those actions a statement of political opinion, and that was really an amazing decision because nobody thought—this was back in 1987—nobody was thinking in gender terms in terms of the refugee definition. I certainly wasn’t. But that was very important. We started using the other grounds, political opinion, religion…..

AA: To make the gender claim stronger?

DA: To make the gender claim. But, to run from gender and fancy it up with these other elements which really are appropriate inquiries for other elements of the refugee definition was wrong.

AA: Do you have a sense of how this developed over time? What kind of actions that a woman might take would be deemed feminism from a political perspective? If for example, escaping the sergeant is seen as a political act…

DA: It was called “lust-hate” by the dissent. He said, “this is a private matter, this isn’t persecution, it’s just an act of lust-hate.” What were you asking? Sorry.

AA: I was asking if you had a sense for how over time that idea that when women act its political might have developed some boundaries to it. Was it largely in the domestic violence context that we saw that?

DA: It was in the domestic violence context a lot because the vast majority of people coming into this country now are coming from Central America and violence against women is huge, including domestic violence. But not just in that context. I am thinking of a case that we have now pending in court. I have to be a little bit vague in that way I describe it because it’s still pending. It involved a woman from one of the Northern Triangle countries who was like a community organizer. What she was trying to do was create alternative activities and social contexts for kids, so that they wouldn’t be recruited by the gangs. It was caring for the children that motivated her. We formulated appropriately as a form of political opinion. She was a political activist, but it had a very gendered element to it. She wasn’t just doing community organizing, she was trying to help the kids. She was motivated by the children and what they needed.

But also, it’s been established for a while, and in a fairly recent board decision, that family constitutes a particular social group, if you’re persecuted because of your family relationship. We presented our arguments; other people have presented arguments that a woman who is targeted because she is preventing her child from being recruited by the gang, she is being persecuted because of the family relationship with her son. And we’ve succeeded in several of those cases, and by “we” I mean collectively, in the circuit courts. But he’s trying to withdrawal the precedent that family itself constitutes a particular social group. He’s actually proposed that he withdraw…

AA: Who’s “he”?

DA: Well, now its Barr.

AA: Right.

DA: That they can withdraw all of the precedent decisions, all of the law that was created over the last thirty years, and start from scratch. Why bother piecemeal destroying domestic violence as a basis for asylum or gang-based claims…. This is a real battle we’re in now. But he’s not going to succeed. I mean, they hear me, they see that these unpublished immigration judge decisions are being used over and over again, presented in different courts as a kind of guerilla warfare jurisprudence. He sees what’s going on with it. But I don’t think that they’re going to succeed.

I think what has happened to immigrants is waking up this country. I think there is a lot of good stuff coming out of this. I think people see what’s happening to those families and they can’t bear it. It’s humanized [immigrants]. And the country has changed—the country has changed demographically. We are much more a country of color, pretty soon we’re going to be majority minority. I don’t know why I’m so optimistic after the gerrymandering case. I just think we’re changing.

And I think what’s so important and doesn’t happen enough is that we don’t look at why people are fleeing. But I think when people see those families there, they say, “What is happening that society is expelling their children and families? Something really terrible is happening.” And I think the truth about Central America, and I think it’s absolutely the truth, which every scholar and historian knows, is that US policy created the destabilization that we now see in the Northern Triangle. The civil wars. We’ve supported dictators and civil rights abusers. We gave all that support to Guatemala, to El Salvador—these were prox[ies in the Cold War]. And we left those societies devastated. We left behind a genocide. A coup that the CIA orchestrated resulted in the elimination of a popular, democratically elected president in Guatemala, who was engaged in land reform. And it set the stage right after that for the genocide. I mean 200,000 Mayan people were killed. And then at that moment of devastation— these are new democracies, just barely coming up out of the ashes—we say, “OK, bye.” And then we turn to Mexico and say, “Keep those people south of here as much as possible. We’re going to fund you to do that.”  But we didn’t come up with a Marshall Plan for Central America after we made a total mess of it. That’s what we need to talk about. We need to talk about what the US role has been in the devastation of Central America, and we need to take responsibility for that.

[click_to_tweet tweet="'What’s so important and doesn’t happen enough is {looking} at why people are fleeing. And ... the truth about Central America ... is that US policy created the destabilization that we now see in the Northern Triangle.' —Deborah Anker in Ask a Feminist" quote="What’s so important and doesn’t happen enough is {looking} at why people are fleeing. And ... the truth about Central America ... is that US policy created the destabilization that we now see in the Northern Triangle." theme="style2"]

AA: How do we understand gender in that context?

DA: I mean, we left a culture of violence. People talk about a culture of violence in Central America. There is the highest femicide rate in the world—I think Honduras and El Salvador compete for number one. Extraordinary levels of violence against women. We left a culture of violence, and violence sort of became the way you resolve disputes.

AA: It seems like what you seem to be describing, one of my big takeaways from this conversation, is really that we can’t even get to the conversation about gender and feminist activism in the refugee and asylum context without understanding the core institutions, the political institutional dynamics that are happening in the background: what William Barr is doing, what the courts are doing, how the decisions are being made and unmade, and the tension that seems to exist between the BIA and the decisions that are coming out of the lower courts…

DA: And the federal courts. You know, and we have a president who is legislating from the executive branch. He’s not just legislating from the executive branch, he’s literally annihilating statutes and putting in his own law. The violations of the Immigration Act that are being done by the administration are just blatant. We have a statute that says “irrespective of status”—literally has that language—“irrespective of whether you present at a regular border post or have entered undocumented, you have a right to apply for asylum.” And he says, “If you apply at a border post, were going to push you back into Mexico. If you apply away from a border post and you enter undocumented, we’re going to deny you asylum on that basis.” He rewrites the statues. This is very frightening. This is autocracy, this is not democracy.

Well, I’ve said this already, the bulwark against what he’s doing, what Barr is doing, is the immigration court, and the way that the immigration court, day after day, are hearing these stories and they’re transformed by them. There are terrible immigration judges. There are tremendous disparities in the judges and the outcomes of asylum cases in the court.

AA: And in the current moment we’re in and we see so many images of women crossing the border with their children. And, also, just caretakers crossing the border with their kids and then the powerful image of the father and daughter who died. The idea of family and gender seem to be striking a chord with Americans. What is it about these gendered depictions of family and caretaking that we are all so troubled by? Is there something specific about the refugee and asylum context or is it just that we all should be troubled by this in any context?

DA: And they’re here. It’s not a distant image. I think they’re here, and they’re among us. And there are people who look like them who are walking the streets. When I started this thirty-five years ago, America looked very different than it looks today. People are faced with the fact that they are human beings, and they understand family.

And there’s the #MeToo movement. People are understanding that this kind of violence happens and that its serious. It’s not just like a little trip and fall and you hurt your knee. Such a deep understanding of violence against women is coming out of the #MeToo movement, and so it resonates.

I don’t know why I’m feeling so optimistic at this moment but I just don’t feel like they’re going to win.

AA: I don’t either.

DA: I think there is going to be tremendous set-backs but I do not think they are going to win.