The Supreme Court has been asked to overturn a case arguing that under certain circumstances the fear of an abusive arranged marriage can be grounds for asylum.
The plaintiff’s request for asylum granted on appeal by the Second Circuit which argued that where forced marriages are valid and backed by law, the plaintiff “might well be persecuted in China – in the form of lifelong, involuntary marriage.”
The government is now asking the Supremes to overturn this verdict because they are afraid it would make America a haven for women fleeing abusive forced marriages. To be fair, they’re saying this is a decision that should be taken by Congress, and not the courts, but they also warn that this could lead to a flood of women in arranged marriages applying for asylum.
At the center of the case is a woman from China, not India:
At age 19, Gao was sold by her mother for the equivalent of $2,200 to become the wife of a man in her home village who, Gao says, will physically abuse her. [Link]
She was granted asylum by the appeals court, which extended the grounds under which one could traditionally apply for asylum:Approximately 60% of marriages worldwide are arranged
To qualify, an individual must show a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
In most cases, the persecution is meted out by a government. But the Second Circuit said in the Gao case that persecution could also stem from a personal relationship in combination with government-enforced customs.
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p>In particular, the court argued it was the combination of abuse in the marriage and the enforcement of it by the state which was a problem:
women who had been sold into marriage and who live in a part of China where forced marriages are considered valid and enforceable could qualify for refugee protection in the US. The appeals court found that, under such circumstances, Gao “might well be persecuted in China – in the form of lifelong, involuntary marriage…” [Link]
The Bush Administration calls this judicial activism, saying that this decision could lead to a major change in policy:
“The court of appeals’ error … has far-reaching ramifications for immigration policy in light of the fact that approximately 60 percent of marriages worldwide are arranged” [Link]
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p>If the case was upheld, they warn, dire consequences would ensue:
Mr. Clement says the decision by the Second US Circuit Court of Appeals in New York threatens to transform American asylum law into a worldwide haven for women trapped in potentially abusive relationships after being sold into forced marriages. The Bush administration suggests in its brief that if the Second Circuit decision stands, it might trigger a flood of women from around the globe fleeing unhappy arranged marriages. [Link]
Opponents disagree saying that they haven’t seen any such flood since the appeals’ court verdict a year ago.
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p>Does this have a desi angle? Of course it does but not entirely. Desi marriages don’t involve a brideprice, they involve dowry, so money goes in the opposite direction. And I believe that by law (at least in India) you can get out of a marriage that you don’t want to be in, even if the families have made a deal.
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p>Still, I’m not convinced that we might not see cases where women are locked in abusive marriages and for all practical purpose have little recourse, so this might set an interesting precedent.
Lawyers? Lay folk? Whaddyall think?
Desi marriages don’t involve a brideprice, they involve dowry,
i believe that the practice does occur among some muslims.
and i think the idea that this is opening the door to a shit load of asylum applications is true.
also, bride price it used to be common in the non-high castes. got stamped out in the early 20th century from what i’ve read.
It is true by law that you can divorce in India, but IMO society law usually trumps civil law.
The problem is some women cannot get divorced because their parents will not accept them into their home because what would other people think? They would rather have their daughter stay in an abusive marriage than have the “shame” of a divorce in the family. Or women who are college-educated who have never worked a day in their lives have no idea how to support themselves or their children. In this case I think poorer women have it better in that they have worked their entire lives and can find ways to earn money. Some women will not get divorced because they may never be able to see their children again, espeically if they have sons, by either brute force or manipulation of the courts by their husbands’ families.
“The Bush administration suggests in its brief that if the Second Circuit decision stands, it might trigger a flood of women from around the globe fleeing unhappy arranged marriages. Knight says he’s seen no flood since the appeals court decision was handed down in March 2006.”
Most people don’t want to leave their family and home, maybe that’s why they haven’t seen a flood. I think this deceision is beneficial to women escaping extremely abusive situations where they are not safe anywhere in their homeland and leaving the country is their only option.
Other than the fact that opening asylum to people in forced marriages would send millions of desis flooding Amrika-ward, I think the point is to show that the person seeking asylum cannot get a fair hearing within their domestic legal system. From what I hear the Chinese legal system sucks, but are there no provisions for bringing domestic abusers to court, for a divorce on grounds of cruelty, or fighting the case on trafficking grounds?
badindiangirl writes:
As a result, this decision will probably make sense only in non-democracies and/or city-states like Singapore/Dubai/HongKong etc where there is no other place to hide. In large countries a woman can move to another state/city and melt into the crowd. Of course, if she cannot manage to do that, the question is – of what use is asylum to her? If she could not manage in her own country elsewhere, how would she manage in another country without knowing the language/culture/etc?
M. Nam
I deleted this bit because the post had gotten too long. She moved within China, but her husband harassed her family.
If only it was as easy as a ‘law’. The stigma of divorce and societal pressure far outweighs the ability to simply get out of a marriage legally.
I can already see how something like this can be totally abused. A woman applies for assylum from India based on this criteria. She then goes back and marries the man she originally applied assylum from and he now gets to come to the US as well! If brothers and sisters can marry on paper to make passage to the US (don’t anyone tell me you haven’t heard these stories) I can’t see why this wouldn’t happen.
Money in exchange for lifetime of involuntary service = indentured servitude at best and slavery at worst.
Expecting wife to stick around despite emotional and physical abuse just because you PAID FOR HER = totally and completely FUBAR
Does it? I can’t read this whole thing just now, but if they don’t make the distinction between ABUSIVE and ARRANGED, then that’s also FUBAR.
I don’t know how assylum technically works, so if someone knows, please inform me… But wouldn’t the grant of assylum be reversed if it was found the person went back to the country/situation in which they were seeking assylum from? Like a green card, are there rules on not leaving the country during or for a period after seeking assylum?
But JOAT, I do agree at the same time that there will always be people trying to manipulate the system as you said.
Ennis wrote: >>She moved within China, but her husband harassed her family.
The husband will continue to harass her family even after she moves to the US. So nothing will change.
M. Nam
Excellent arguments from both sides. A riveting debate. This is what we have a legislature for.
To be fair, all asylum-seekers will use anything they can for sympathy, even lie if they can get away with it (remember Ayaan Hirsi Ali?) so we shouldn’t judge her too poorly for exaggerating if indeed she is. Doesn’t make asylum-seekers undeserving, they are only human.
Ahem….Can men also claim asylum using this idea? Or…if you get a green card this way (spousal abuse under arranged marriage), can the spouse get automatic processing 8-]? I think almost every other way of getting a green card comes with automatic processing for the spouse. Maybe some badass lawyer can arrange this too!
I definitely think that unwanted arranged marriage should be grounds for asylum.
I mean the Desi arranged marriage system has its flaws and, despite what my mother thinks, I’m not participating in it ;). But I know many people are very happy with their parents’ choices. This decision does not affect them, however. This is only referring to that subset of women who are being forced into lifelong marriage contracts against their wills. At a minimum, such marriages violate the Universal Declaration of Human Rights:
JoAT raises an interesting point about the loophole this creates, but I dunno. I’m imagining (wrongly?) that the courts in the States would require some evidence that the marriage in India/Pakistan was both legitimately entered and dissolved.
But now for the big question: what are Hindi movies going to do with this huge new plot element?
Agreed.
The courts should take into consideration that forced arranged marriage is happening right here in America today. What about all those 15 year old girls being married off to middle-aged men in those praire-clothes wearing, close all schools, most women are on welfare, polygamist rebel Mormon groups that live in Colorado, Utah, Arizona? This is not just a problem in far-off lands and there is a real need for women to escape these situations and sometimes it involves leaving their country
Another reason why arranged marriage should be crushed like a bug:
“Khan told him he first became attracted to radical Islam because the tradition he grew up with was forcing him into an arranged marriage. The radical Imams were offering him a way out. “
from this link : http://www.cbsnews.com/stories/2007/03/23/60minutes/main2602308.shtml
The article is good guys, and I just cut around 40% of the post to make it more readable, so if you’re interested I do suggest you click through …
I’m imagining (wrongly?) that the courts in the States would require some evidence that the marriage in India/Pakistan was both legitimately entered and dissolved.
1) there are finite investigative resources out there, the overwhelmingly majority (i.e., 99.99%) of women in forced marriages are not going to be applying for asylum. a disproportionate number of those making this case will be trying to figure out “angle” into the asylum system because they know that the background check is going be only so deep. some people may be helped, but let’s keep the benefits in perspective.
2) many asylum seekers are rational actors (read: those who really aren’t fleeing persecution). we all do what we have to do.
3) and so should we be. this situation sounds really crappy out of context, the bigger picture is that this world of ours is really crappy. i think that arguments can be made for transporting whole populations of countries to the first world to improve horrible human rights situations. arguments can be make for transporting whole subpopulations (e.g., every hindu in bangladesh, every shia in saudi arabia) to the first world. if we do do this though we’ll run out of resources and the problems will simply reappear. i am glad that iraq has taught the left that where there’s a will there always isn’t a way, and that some problems are going to take a long process of social and cultural development, and we can’t swoop in like gods to make it everything good. the asylum system is the same. it exists for a reason. there’s an enormous sample space of injustice in the world and finite resources need to go to the worst cases.
M. Nam writes..
M. Nam great point…Unfortunately mobility is not a right, even within a democracy. This has been illustrated through the many tragedies caused by Katrina. Some people do not have the means to leave any situation be it abuse or natural disaster. The fear that America will be flooded with women claiming asylum seems unlikely simply because movement is a luxury many cannot afford and some are too scared of.
How exactly did Iraq teach the left this?
More importantly does this not raise the question about a broken immigration system?
If it was easy for people to get in and stay here, this would not be news. Now would it?
i agree with razib.
often, such cases, muck the process (political) asylum was made for. they are limited resources. X number of people from INS/ USCIS can process applications, and look into Y cases, just as they have limited resources. Out of Y cases, Z can be converted to green card in a given year. therefore, it is not a bottomless pit.
i have an immigration attorney friend, and she agreed that ‘fake’ or ‘stretched’ asylum cases make harder for real ones.
green card holders can leave country (US) anytime, travel freely, marry anywhere (getting a spouse back in US might be a long drawn process but you can tag them easily in the application process). only if they leave country for more than 6 months in continuous manner, they need special paperwork. an asylum seeker once becomes a green card holder, all the same rule apply, so they are free to do anything they want.
i was once on a flight to India had guy sit next to me who had seeked asylum from India to Canada. in his own words, he visited India every six months, and it was purely for economic reason.
Neal at 14:
The Universal Declaration of Human Rights is a wonderful and inspiring document, but it does not carry the force of law. It is simply a declaration, not a convention or treaty, and therefore there is no way legalistic way to enforce it. Amnesty International and other organizations have used shaming to great effect, but that’s all I can think of.
As for the Supreme Court, I don’t have time to read the full article or the Court of Appeals’ opinion just now, but my initial reaction based on the post is that the court will be split and will ultimately come down in favor of the government. IMO, the “flood of women” argument is a very weak one for reasons already discussed. The main problem I see is that a district court trying to enforce a ruling in favor of the woman would have to decide whether or not a marriage arrangement conducted on foreign soil is legitimate. I see this as a thorny issue because it is so case specific. If 60% of the world’s marriages are arranged, then a showing of an arranged marriage is not enough. How do you collect evidence to show that it is a forced marriage? What kind of evidence is appropriate? The judicial activism argument will likely resonate with members of this Court. I see that as another potential hurdle. In this case, I think the argument has some merit as in the past the court tends to defer to Congress and the President on immigration issues.
As much as I would like to see the Supremes rule in favor of the women, I just don’t think it will happen.
how did iraq teach the left that? anyone truly on the left was opposed to the war. maybe i just don’t understand what you’re getting at…
I was thinking one of two things:
But those are just guesses. I’m curious to know as well.
I think SM is jumping on the the wrong point here, forced/arranged marriage. The real grounds for asylum in her case is domestic violence.
In recent years, domestic violence as a basis for polical asylum has been gaining traction in the U.S. Because Congress refused to amend the current asylum laws to recognize gender as a persecuted group, domestic violence has become the way of getting women in (i.e. the foreign government condones domestic violence by not persecuting violent husbands).
The woman in this case isn’t seeking asylum based on involuntary marriage, but on involuntary marriage to someone who will beat and possibly kill her.
Exactly: freedom’s untidy.
hey mind readers, re: the left & iraq. this is what i mean.
anyone truly on the left was opposed to the war
nice to know we have a kommissares in the house to tell us who is truly what!
Because Congress refused to amend the current asylum laws to recognize gender as a persecuted group
women in saudi arabia are treated like chattel (some well fed and taken care of, but chattel nonetheless). instead of allowing a trivial number to immigrate the US perhaps we should just invade these countries and liberate everyone!
“The post is criticizing the left’s unfair assessment of the post-war situation in Iraq as a ‘failure’, implying the left should be aware that large scale social change, ‘democratization’, will take time, effort. After all, it’s “hard work””
Of course, personally, I think the criticism is unfounded, as the war strategizers themselves underestimated the cost, both physical and fiscal, and distanced themselves from those who were realistic about the cost, all for the purpose of selling the action to the public in the first place. badabing.
But, back to asylum, I do think arranged marriage isn’t the central issue, rather it’s abuse, but is there a high correlation between the two?
The issue is whether the courts in her local country will enforce the marriage and make her return to a man she says will abuse her. It’s actually not so much about the abuse per se, the court didn’t say there was a right to asylum to flee domestic abuse, but rather the fact that the courts in the country will keep her in an abusive marriage.
Why might they do that? This is in part of the post that was up earlier but I cut, namely that her mother spent the money that the husband to be gave. The husband asked for his money back when the girl fled and her mother can’t pay it (how they paid for her to be smuggled to the US then confuses me).
As I understand it, the local courts will see the marriage contract as valid and say that either she pays the money back or she returns to her betrothed. That is, they will enforce the marriage contract. This is why the first court, the one that refused her application, saw this as largely a civil matter.
The US government itself seems to be making arranged marriage the issue by talking about how many women there are in arranged marriages. But yes, the issue is really coming from a country where abusive marriages are legally enforced.
Here’s some bits that might help.
She has no objection to arranged marriage herself
I don’t understand how he beat her before marriage, there’s something I’m missing here.
Here’s the bit about the importance of the brideprice in all of this.
Again, I don’t understand whether the harassment of her family stopped once she left the country.
What the first judge said:
What I suspect is the legal crux:
All I’ve seen on this topic comes from this one article. Googling it found few other sources.
I don’t see how point 3 is related to what I wrote at all, but ok. I agree that we can’t just swoop in like gods and solve global problems. Presumably we can at least attempt to correct oversights in our own asylum system though.
Point 2 is totally correct, which is why I was wondering whether there was any way to verify the legality of Indian marriages and genuine attempts to leave them. I don’t think people who misuse the asylum system should be rewarded, if that’s what you’re implying.
Isn’t Holland or some country planning on employing the use of a film explaining Dutch culture to immigrants and showing them what they will be dealing with before settling down in that country? Perhaps a similar thing should be done in this situation — encouraging people who choose to immigrate and settle here to conform to the general courting and marriage customs of this land.
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