The Rising Bar for Persecution in Asylum Cases Involving Sexual and Reproductive Harm

Abstract This Article argues that there is a rising bar for establishing persecution in U.S. asylum eases involving sexual and reproductive harm. Analyzing recent cases, the Article shows that adjudicators tend to apply a higher standard for physical harm in these types of cases and largely overlook nonphysical harm, including psychological suffering and the intangible harm caused by deprivation of equality, autonomy, and privacy. The Article focuses specifically on two types of eases where these patterns appear: (1)female genital mutilation (FGM); and (2) involuntary insertion of an intrauterine device (IUD). Regarding FGM, the Article discusses an emerging dispute as to whether Type I FGM (clitoridectomy) constitutes persecution. With respect to involuntary IUDs, the Article analyzes a decision by the Board of Immigration Appeals (BIA) requiring aggravating circumstances for the harm to constitute persecution, as well as recent circuit court decisions reviewing the application of this problematic precedent to other cases. The Article then argues that using international human rights law to identify and evaluate various types of harm would lead to a much more comprehensive and principled analysis of persecution and would likely lead to different results in these types of cases. INTRODUCTION The concept of persecution lies at the heart of what it means to be a refugee, (1) yet its definition remains highly imprecise. Judges define what actions constitute persecution on a case-by-case basis without reference to any objective norms or standards, resulting in significant discrepancies between the federal courts of appeal, as well as striking inconsistencies at lower levels of adjudication. (2) When it comes to nonphysical forms of harm, such as psychological harm, severe discrimination, or deprivation of self-determination, the divergence of opinion is even greater. Over time, our understanding of persecution has evolved to encompass forms of harm that are related to gender and experienced primarily by women, such as rape, female genital mutilation (FGM), and domestic violence. As Deborah Anker has argued, "the [United Nations High Commissioner for Refugees (UNHCR)], practitioners, scholars and activists consciously have constructed gender asylum law on the edifice of international women's human rights law and the work of the international women's human rights movement." (3) Judges, however, often continue to view gender-specific forms of harm through a different lens. Thus, while great progress has been made over the past two decades in recognizing gender-related asylum claims, "we are still a long way from an adequate recognition of the specificity of women's experiences of persecution, as is the case for many other non-traditional forms of persecution." (4) This Article focuses on two types of sexual and reproductive harm about which opinions have begun to diverge. The first type of harm, FGM, which affects 100 to 140 million girls and women worldwide, (5) was found to constitute persecution years ago by the Board of Immigration Appeals (BIA) in Matter of Kasinga. (6) During the past decade, most circuit courts, as well as many other countries, have agreed that FGM constitutes persecution. (7) Recent decisions, however, indicate that the BIA and some circuit courts might not consider all forms of FGM to be persecution. Specifically, there are early signs of as to whether Type I FGM (clitoridectomy), which is one of the two most common forms of the practice, rises to the level of persecution. (8) In addition, a recent decision by the BIA suggests that FGM requires aggravating factors to constitute severe past persecution, which allows for a grant of humanitarian asylum without showing a well-founded fear of future persecution. (9) The second type of harm that the Article addresses is involuntary insertion of an intrauterine device ("IUD"), which China inflicts on millions of women as part of its population control policies. …