Immigration laws within the US already provide avenues for immigrant brides that are brought to America to apply for citizenship even if they divorce their husbands due to abuse. This new direction in asylum law in the US provides a tangible commitment to the empowerment of women around the world
In the sweltering July heat of Sukkur, a man, Inayatullah Khoso, shot and killed his wife and a guest. Aamnat, the wife, and the guest were killed as karo kari because someone had made an allegation of illicit relations between Aamnat and the guest.
Like hundreds of women killed in karo kari cases in Pakistan, Aamnat was buried in an unmarked grave. No case was lodged against her husband, no investigation conducted into her death. The news report said nothing about her other than revealing her name and the lurid circumstances of her death. Like hundreds of abused women in Pakistan, Aamnat was un-mourned, unmissed and her death generally ignored.
Far away from Sukkur, an immigration court in San Francisco may have provided some bare glimmer of hope to women like Aamnat who may wish to flee abuse but have no recourse in a society that considers the abuse of women unworthy of attention.
In April of this year a filing by the Obama administration added a new legal dimension to asylum claims made by abused women around the world. The new policy has been put in place by the Obama Administration after nearly 13 years of legal wrangling. During that period all such asylum claims filed by women facing the threat of death or torture were refused.
Under current statutory guidelines, claims for asylum are granted if the petitioner is able to demonstrate a “well founded fear of persecution” based on “religion, race, nationality, political opinion or membership in a particular social group”.
The legal controversy in American asylum law over the past decade has been on the issue of whether a “social group” can be interpreted to include battered or abused women and their children. In the particular case before the court, the woman requesting asylum argued that being “a Mexican woman suffering from abuse and unable to leave” constituted a social group.
The petitioner’s claim that being an abused woman unable to leave constituted a social group was denied. However, in a notable move the US government’s attorneys came up with an alternative definition of social group that would permit her application for asylum.
In their brief the US government states: “In some cases a victim of domestic violence may be a member of a cognisable particular social group and may be able to show that her abuse was or would be persecution on account of such membership.”
The decision does not mean that any victim of domestic abuse can file for asylum in the United States at any time; the petitioner must still demonstrate that the persecution cannot be avoided by relocating within her home country. She must also demonstrate that the harm feared really constitutes persecution and that there is a well-founded threat of future harm. Both these elements must be proven in any asylum claim.
The woman whose case prompted the new ruling was a Mexican who fled Mexico with her children after being repeatedly raped at gunpoint by her abuser. Two of the children were undocumented and two were US citizens. Her husband had abused her since age fourteen when he forced her to marry him after sexually abusing her. Being a poor migrant worker with little money or family, she stayed with him for several years before her sister, a US citizen, asked her to cross the border and seek safety in the United States.
In allowing her case to be heard, the Obama administration has provided a concrete basis for providing succour to women around the world. Her story is markedly similar to the cases of hundreds of Pakistani women who have no recourse and nowhere to go when faced with horribly abusive conditions.
According to statistics provided by the Human Rights Commission of Pakistan, over a thousand women have already lost their lives in honour killings and karo kari attacks this year. This does not include the hundreds of gang rapes and other forms of abuse against women that have also been reported this year.
Yet not everyone is applauding the new policy. Critics have focused on how this new basis for claims for asylum paints an affluent nation like the United States as a global saviour for women from poorer cultures.
Women from the global South are then constructed within international human rights discourse as perpetually oppressed and worthy of saving by rich countries like the United States that can save them from the torture and abuse permitted by patriarchal cultures.
In a world where non-Western cultures are already demonised as lacking in civility and intrinsically oppressive to women, the arrival of female asylum-seekers presenting legal petitions would further provide an opportunity for substantiating imperialist notions of Western culture as being supremely liberating and non-white cultures in the global South as inherently oppressive.
Finally, detractors argue that removing women from their local contexts such as Mexico in this case would further subvert the process of getting local cultures to recognise the problem of domestic violence and simply allow them to export victims abroad.
While worthy of consideration, these critiques are pivoted on a crucial and heartbreaking omission. Instead of prioritising the case of the individual woman like Aamnat whose life may have been saved through legal intervention and an asylum claim, they focus on abstract principles that pit global cultures against one another.
They also forget the universal and damning alienation faced by women being beaten and abused regardless of whether they are in Mexico, Pakistan or the United States. It is this sense of pervasive loneliness, of lack of options faced by the hundreds of thousands of women around the world that are killed or severely injured due to domestic abuse that the new law seeks to address.
Immigration laws within the US already provide avenues for immigrant brides that are brought to America to apply for citizenship even if they divorce their husbands due to abuse. This new direction in asylum law in the US provides a tangible commitment to the empowerment of women around the world who take the courageous step to flee abuse and denigration and seek a new life.
Rafia Zakaria is an attorney living in the United States where she teaches courses on Constitutional Law and Political Philosophy. She can be contacted at email@example.com
Reproduced by permission of the author & DT.