Doe v. Sessions (11th Cir) and the maleness of asylum law

Off the Record Podcast Excerpt
July 20, 2018
Post intro excerpt

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MALANEY: Unsurprisingly since we are doing an immigration issue, my girlfriend DW is back on the pod by popular demand to talk about her recent high profile asylum case that I tweeted about yesterday

DW: I love how I am always back by popular demand

MALANEY: I only say that to be polite, you are actually the only one who demands your presence on this show

DW: Do you like how I am secretly subverting your podcast into all immigration news all the time podcast?

MALANEY: If only there was some way for you to have one of your own, oh wait..

DW: I can’t host a podcast because as someone on twitter said about me “it is weird how DW’s voice is low toned and shrill at the same time” and then you screen capped it and sent it to me.

MALANEY: [laughing] I love how you still remember that one tweet from like three years ago

DW: I heard from no one that people liked all the immigration related articles I retweetd from your account . . . on accident

MALANEY: Yeah you accidentally hit the retweet button five times especially the ones that you wrote comments with. What a complete accident.

DW: Well . . . that article on ICE going after people awaiting their U and T Visas is really important and I said it was me at the end. Okay. Okay. Sorry. Are we ready to go?

MALANEY: Are you ready to go?

DW: Yes, but uh where uh . . . where is my paper roadmap script thing you always give me

MALANEY: I assumed that you would come prepared with the copy I already sent you on google docs that you were going to go through and edit and give back to me… that you have not done

DW: Oh. Yeah. Oops. Guess I missed that while I was on your twitter account

MALANEY: Well I have an additional paper copy for you to follow if you would like it.

DW: To be honest, I just wanted some paper to doodle on.

MALANEY: [loud sigh of annoyance] Ok. Ready?

DW: For something unrelated can I also have one of your pens? [pause and laughter] Thank you, that’s all going to get cut right?

MALANEY: maybe it will get left in on accident

DW: that’s fair

MALANEY: Okay, so I posted on twitter and instagram about the case you argued on Thursday. We’re going to talk about this very big case you just did in the Eleventh Circuit Court of Appeals. Di- DW just did a very long oral argument yesterday and she worked on the brief for a very long time. It’s one of the many immigration cases going through the courts right now that isn’t getting a lot of attention but has serious legal ramifications if the Justice Department succeeds in their argument. The trial for this case started in 2015 and it closed at the end of 2016. Do you want to briefly explain the facts and with kid gloves the complex legal issue surrounding this case?

DW: Yes. So this case won at the trial level, the DOJ appealed the asylum grant, and the Board of Immigration Appeals agreed with the government and reversed the asylum gratnt, we appealed that decision to the Eleventh Circuit. You can actually go to the American Immigration Lawyers Association website and see our brief under the 11th Circuit Tab, the case is Doe v. Sessions and the citation is 17-0184. And that will just provide more detail and a deeper issue explanation if you want it. It's a very complex legal issue.

But the facts that are uhm and just a warning that sexual violence is a big issue in this case there is violence and sexual violence in the facts here. But what happened is a young woman, she’s Jane Doe for this appeal, she’s from El Salvador she went with her boyfriend to visit his father. His father was a member of a group advocating for the elimination of corruption in law enforcement in their city. When she was visiting an armed group of gunmen broke into the home and murdered the father and son in front of Jane Doe. Jane Doe was sexually assaulted and then told that even if she tried to contact the police they wouldn’t help her, that she couldn’t tell anyone or she would be killed and that if she tried to go to the police or tell anyone they would know. She then fled back to her mother’s where she lived a few hours away, and she contacted the police there. About a month later, two of the gunmen who Jane Doe recognized as her attackers knocked on her mother’s door claiming to be her cousins. They then started staying in the building next door to Jane’s and were constantly watching and outside of her mother’s home and two times she saw them outside of her mother’s home brandishing weapons. Jane then fled to the United States for asylum protection because she was very clearly afraid for her life.

MALANEY: I got chills the first time I heard DW tell me what happened in this case, but the thing that is really scary and terrifying is actually the argument the Department advanced on appeal against a grant of asylum for this woman.

DW: Here is my kid gloves version of the rule for an asylum claim to be successful you need to show that the applicant suffered past persecution which is persistent harm, on account of religion, race, political opinion, nationality, or membership in a particular social group. And then you must show a credible fear of future persecution. Please note, sex is not a ground.

The legal issue in this case is the nexus requirement, the words “on account of” that’s why I emphasized them so dramatically. It’s the hardest part of most asylum claims. Most people think that the eligibility ground is going to be the hardest, and that section can be hard if it is a social group like this case is, but if it is race or religion or something else it is actually pretty straight forward. However, proving something happened to you on account of your eligibility ground is very hard. The rule is that the eligibility ground must be a central factor in why that harm occurred to the applicant.

Our case argues that Ms. Doe was threatened with sexual violence as a form to keep her from being able to seek help and being afraid to testify or inform police of what she witnessed. Remember she was also stalked and threatened. And the immigration court agreed with our presentation at her asylum hearing that her assault was because of her witnessing the crime. The government appealed that order, arguing it was judicial error to find that the nexus requirement was met because these facts do not establish that she was assaulted on account of witnessing the crime, she was for lack of better words just there and her attack was “opportunistic” or unrelated. Obviously that is bullshit but the Board of Immigration Appeals agreed with the government and we appealed.

DW: Also, this is a particular social group case and Jane Doe’s social group is an established group, it is witnesses to a political assassination, although that group is very small it is recognized and not contested by anyone in this case. She has a valid eligibility ground for asylum.

In the government's brief on page 23, there is a hypothetical that they also brought up in oral argument, where the government says, if she had been hiding in a closet and was found after the murders were carried out there is no way to prove she wouldn’t have been assaulted then either. They also argued that when her attackers told her if she tried to contact the police they wouldn’t help her, that was probably about the rape and not the murders… so even that very specific threat they argue doesn’t show her assault was related her eligibility ground. It's a very hypertechnical argument, it is infuriating.

MALANEY: Watching the government actually argue this in the cold technical way they did with no emotion yesterday and basically saying a witness to two murders wasn’t an important person in the act of the crime, it was like so—-- i don't know, it was scary. It felt very dystopian. People came to watch you argue and you know we were all astounded by the robotic nature of this. And there was one judge who really was buying into the government's argument he kept saying to DW, ‘but you can’t show this isn’t opportunistic violence’ he probably said opportunistic about 10 or 15 times before DW in this very long back and forth was like there is no such thing as opportunistic sexual violence. And I could tell you were frustrated because you were gripping the podium so hard.

DW: Aha, yeah when we got home my hand was hurting. Also, I think I had some real low toned shrill when that was happening.

MALANEY: No you had a very different voice when you were arguing

DW: oh that's the voice I use when I am not wearing cat pajamas.

MALANEY: but I want to talk about this opportunistic sexual violence thing, because we also hear that term in conflict zones and war zones and it's a strange term and I was surprised to learn it existed in the legal realm of asylum law too.

DW: It's an old term right? I mean most people they agree that there is no such a thing as opportunistic sexual violence. It's just sexual violence, which has always been used as a cold calculated tactic to control, oppress, and terrify women. Very specifically in fact. I think it is very oudated offensive language. Immigration judges work under a fear of ‘opening the floodgates' and they see a lot of claims of women who experience sexual assault and abuse and it seems like it's just part of life as a woman in the world. Asylum law is not written to be inclusive, it is specifically written to be exclusive. And it is also written from a very male point of view.

And, also, we know this because in asylum claims where there is sexual violence against men, it is never said to be opportunistic. Ever. And obviously that is a good thing, but this very large problem exists for the women who also suffer sexual violence at epidemic levels.

Asylum law is written from a male perspective, it was written by men who intentionally excluded sex as a ground for asylum relief, the case law views private or familial persecution which happens to women at significantly higher rates as less legitimate forms of persecution. It treats claims based on sexual violence including female genital mutilation similarly to private persecution or what the AG calls private crime, which he is trying to eliminate as something that eligible for asylum relief

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