Deborah Anker is Clinical Professor of Law at Harvard Law School and founder of the Harvard Law School Immigration and Refugee Clinical Program. Many may think of asylum-seekers and refugees as people fleeing political violence and chaos in their own countries. Deborah Anker discusses two other powerful reasons people leave: gender-based violence and climate displacement.
This Faculty Voices includes topics such as sexual assault, domestic violence, and identity-based discrimination and harassment. Some of this content may be difficult for some listeners.
June:
People seeking asylum in the United States often face horrific situations in their home countries. This Faculty Voices includes topics such as sexual assault, domestic violence, and identity-based discrimination and harassment. Some of this content may be difficult for some listeners. Take care of yourselves.
June:
Deborah Anker is clinical professor of law at Harvard Law School and founder of the Harvard Law School Immigration and Refugee Clinical Program. Welcome, Deborah.
Deborah Anker:
Thank you very much for having me.
June:
Many of our listeners may think of asylum-seekers and refugees as people fleeing political violence and chaos in their own countries, and that's certainly true, but you've made me aware that there are other reasons that people seek asylum. We'll talk about two of them today, the victims of gender-based violence and climate refugees. But many of us, including myself, who are listening to this podcast are not lawyers or work in the field, so before we start, could you please explain to our listeners about the difference between asylum-seekers and refugees and tell us about what it takes to ask for asylum?
Deborah Anker:
People get protection under the refugee regime if they meet the criteria of being a refugee. The U.S. has signed onto that when it ratified the UN Refugee Convention and Protocol in 1967. A person is eligible and can be he granted asylum, again, if they meet the requirements of being a refugee under the Refugee Convention, the '51 Convention, which we have ratified in 1967 through its protocol. The Refugee Convention defines a refugee as someone who, due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion, cannot return to his or her home country. Those are the criteria for getting asylum status in U.S. law. They're based on this definition of refugee in the Refugee Convention. That definition, if you heard it, was race, religion, nationality, membership in a particular social group, or political opinion. Political opinion is only one of five grounds. One of those grounds, membership of a particular social group, which we can talk about more, encompasses a lot of different people in a lot of different situations. Again, we can talk about that.
Deborah Anker:
Also, our understanding of what's political has matured and developed enormously over the years. I would say a lot of the situations that people might now say, "That's not political, a woman being beaten by her husband and threatened with death and leaving. That's not political." I would say it is political, and there's more and more case law that's saying it is political. It's saying a woman who stands up to her abuser, a woman who doesn't even have to stand up, but just gets the hell out of there, is resisting gender violence, and that's a statement that she is not going to submit to that kind of violence, and that she is resisting it, and her resistance is a political opinion. "I will not put up with this. How am I going to show you?"
Deborah Anker:
A lot of these cases, there's a... For various reasons, one of my favorite cases, because it was early, and it was before its time and before any of us were thinking about it, and a wonderful judge, who's now deceased, in the Ninth Circuit. It involved this woman, Olivia Lazo-Majano, and she was... This was during the Salvadoran Civil War, and she was being kept as a domestic and sex slave of this corporal in the Salvadoran military. He said, "If you try to leave me, I'm going to report you as a guerrilla to the authorities."
Deborah Anker:
And the judge there said... It was brutal. Years of this brutal sexual and physical abuse and enslavement. And the judge in that case was a real maverick. I could go on about him, but I won't. Judge Noonan said she was taking a position that he was exercising illegitimate power over her, that he was in cahoots with the armed forces, and she was defying them by leaving, by fleeing. The very act of applying for asylum and fleeing the country and applying for asylum.
Deborah Anker:
And there's a dissent in that decision who says, "Oh my God, if we're going to start to think of this kind of misplaced lust-hate as something serious and political, we're entering the world of Alice in Wonderland." He used the Lewis Carroll. When I think about how offensive that is to everybody, to us now, I realize we've come a long way, it's disturbing, but there's more and more of these cases now. I know people think about it, "Oh, I'm jumping into gender asylum now." But people think of gender asylum as involving the membership in a particular social group category, because that's one of the categories that has been recognized as gender. Sex or gender.
Deborah Anker:
But other grounds are implicated as well. As I said, political opinion. And if you can get a woman... If your client can really talk about how she didn't like the way she was being treated, she thought she didn't deserve to be treated that way, and she left in defiance of it, you can make a case of political opinion. We now have a case in the Second Circuit and another case in the Ninth Circuit that have specifically ruled in that way. That's really important.
Deborah Anker:
Laying the work for maybe our conversation about climate migration and refugee status later, I think the really maverick work that many people did, especially in the gender asylum, really paved the way for a more principled understanding of what refugee law was about, that paved the way for other groups and people in other situations. Not everybody. Not everybody qualifies, but for those people to qualify as well.
June:
What I understand, then, you started working on these types of cases even before there were defined rules about what this meant? In other words, you and your colleagues created a body of law?
Deborah Anker:
I guess that's true. I like to think Judge Noonan created this, but no. Yeah. I think that this was a beginning period of interpreting the Refugee Convention, because we only really incorporated it into domestic law in 1980. The Supreme Court's seminal decision in this, which really set things in motion, recognized the international law bases of our domestic legislation and definition of refugee. That happened in 1987, case called Cardoza-Fonseca. This was all brand-new law. I have to say, it's been... I was just meeting with some undergraduate student, some law students here, and I realized just what a privilege it was, it has been to be alive during that period of time and to have participated in that. But many people were. Certainly wasn't just me, but it wasn't just our clinic. We were feeling out ourselves. What did we want this definition to mean? To what extent should it conform with how it was being interpreted in other countries?
Deborah Anker:
We made some really productive work together, a collaboration with Canadian counterparts. And the Canadians who had... I forget exactly when they incorporated the... They ratified the Refugee Convention as well as we did. They saw the problem of gender early on in the late '80s, early 1990s, that none of these cases were being granted and nobody was taking gender seriously. They developed the first set of gender asylum guidelines for decision-makers in 1993, and we worked with them and copied them and put them into a little bit more of an American context and proposed them to... It was then the Clinton Administration. Proposed them to be adopted just as guidances. These were not regulations. They were certainly not statutes. And we were successful in 1995. The guidances themselves were quite detailed in how the Refugee Convention definition was responsive to issues of gender. Yeah. That was a really important moment.
Deborah Anker:
And then for another 10 or 20 years... That's 1993, 1999. Whatever. Yeah. For at least 15 years after that, we just backtracked. And then we finally broke through again just by being persistent and refusing to give up in many respects. And the Board of Immigration Appeals issued a decision, that's the highest administrative body, saying that, under some circumstances, a woman who was unable to leave a domestic partnership because of violence could qualify as a refugee. We had that on the books until the latter part of the Trump Administration, which said that states really have no responsibility to protect women from violence or abuse from their spouses. That's not a state responsibility. Unless the state is completely helpless to do anything, we're not going to say that there's been a failure of state protection. Yes, this kind of violence is very terrible, but it's not the kind of thing that is protected under refugee law. Just the old arguments, except they felt even worse at that point, I guess, after, because it was already embedded in the jurisprudence.
Deborah Anker:
And there was a lot of confusing developments, because a lot of practitioners even were putting together particular social group formulations that didn't make sense. The particular social group, which is that ground in the refugee definition, that's not as clearly defined, or we don't necessarily know what it means by hearing the words, whereas we do with political opinion or religion or nationality. And people would try to make the social group have all the elements of the refugee definition in gender violence cases and especially domestic violence cases. We said, "No, this is all about gender." The particular social group is women, and it's has the same status as a political opinion. All of those grounds represent statuses or characteristics that a person should not be forced to change or cannot change. And the details of a person not able to leave her abuser or things of that nature are not part of the core definition of what a particular social group is. It should be gender. And then the other things are elaborating what the claim is.
Deborah Anker:
People were not really ready to embrace... Everybody said, "If you say gender, it's everybody." But of course, we should make our groups really small and narrow, and then nobody will get worried about them. But they did. They lost all the cases, because people said they're small and narrow, and we kept maintaining the position that, "No, it's gender itself, is the particular social group. Gender can define a particular social group." Not just us. Again, it was many others as well. We were all in collaboration. We eventually won that battle, and then the Trump Administration rescinded it. And then very shortly after President Biden took office, the major decisions of the Trump Administration rejecting gender-based asylum claims were withdrawn. They were very quick. They were very quick to do that. Now, there's going to be all sorts of new regulations coming down, and we're hopeful that those will come out the right way, or we'll be able to persuade them to do differently during the comment period. But those regulations have not been proposed yet.
June:
Mm-hmm (affirmative). In the judicial system itself right now, there are a lot of judges who were appointed under the Trump Administration?
Deborah Anker:
Now, you're talking about the federal judiciary as well as the administrative judiciary. Yeah.
June:
And what about in the immigration courts?
Deborah Anker:
I understand that there were a lot of appointments made as Trump was leaving office, but I'm not sure about that. I think I've been told that, but I really have not... I really don't know, but I think that's right. And there were also a lot of federal judges. I think the things that we got used to, depending on the certain circuits, courts of appeal having a more principled and thoughtful understanding of the doctrine, we're losing a ground on some of that. It's going to be more of a struggle, and then maybe there'll be more inconsistency in the jurisprudence. It certainly hasn't been disappeared altogether by any means.
Deborah Anker:
And certain circuits, I hesitate to mention them. Everybody will get fired who works there. There're certain circuits, like the Fourth Circuit Court of Appeals has taken very principled and serious consideration of these cases. The Ninth Circuit, maybe a little bit more mixed, but generally has been good on these issues. And as I said, they issued two landmark decisions now on how resistance to sexual violence and domestic violence can be an expression of a woman's political opinion, opposing in opposition.
Deborah Anker:
Who knows what we're going to... Every day is a new beginning, I think. I was just meeting with a group of first-year law students, and their angst and concern about making their mark on the world and having the world be so much more of a confusing place than it was when I was their age, and I was in their position professionally. The circuit courts are not exactly where we would like them to be, but we'll have to just see how this all shakes out, yeah?
June:
Well, when we talk about gender-based asylum cases, are we only talking about domestic violence, or are there other categories and considerations?
Deborah Anker:
Well, other cases have been where a woman faces female genital cutting or mutilation. There's cases about... Forced marriage is another one. Yeah. Trafficking is another. And gender-based discrimination. Yeah. And then of course, sexual orientation and gender identity.
June:
That's really interesting. How does the gender-based asylum ground specifically affect the LGBT community? And is there a body of jurisprudence developing there, too, under the gender-based umbrella, or is it something completely separate?
Deborah Anker:
No. It's a thing in its own right. It is about gender identity and sexual orientation. It's something different than gender, per se, in the women's gender context. But actually, this ground... Again, I was telling you the definition is race, religion, nationality, membership of a particular social group, or political opinion. The question is, that membership in a particular social group, what is that, right? The Board of Immigration Appeals, as I mentioned, said that it's just a more general application of the specific grounds. What do those other specific grounds, religion, race, nationality, have in common? They all have an immutable characteristic, or a characteristic that a person should not be required to change.
Deborah Anker:
Very early on... This is when Janet Reno was... She's another... All my heroines and heroes in this. Janet Reno, when she first came to office... I think she was the first woman attorney general. She vacated a decision of the Board of Immigration Appeals denying asylum to a Cuban gay man and issued a new decision, granting him asylum on the grounds that being gay was an immutable characteristic, a characteristic a person shouldn't be forced to change or could not change, and that remained the law ever since. It's been a much easier battle in principle. I'm not saying in practice. Things are always complicated. But it's been a much easier battle. There's been no battle at all, almost. Not the principle.
Deborah Anker:
She started out her career. You see, I'm into all these older people who did the groundwork. She started her career with the recognition that LGBTI status was a basis for asylum protection. She ends her career year 10 years later, vacating a bad Board of Immigration Appeals decision saying that domestic violence could not be a basis for asylum. Rodi Alvarado. A very distinguished woman who made a real difference in a lot of people's lives. I think these things, they helped individual people who got asylum, but they also helped establish a legal infrastructure for how to decide these cases in a principled way, in a way that's consistent with international human rights. A Refugee Convention really was a part of that movement, that international human rights movement following the Holocaust and the end of World War II and the sense of tremendous guilt and responsibility that the international community felt to make sure this never happened again. Anyway.
June:
Yeah. Let's talk for a minute about gang violence in Central America and Mexico. I understand that fleeing gang violence at the moment is not grounds for asylum. Correct me if I'm wrong.
Deborah Anker:
It can be grounds for asylum. If you're fleeing the gang because you don't agree with... You refuse to be recruited, because you don't believe in what they're doing. You don't believe in their... You're challenging their authority by defying them and refusing to be extorted, trying to escape. It has some parallels with the gender cases, but those are all examples of expressions of a political opinion. There's a lot of scholarship on this that is submitted individual asylum cases. When somebody refuses to give into an extortion or to join a gang, it's not just that the gang doesn't have as much money, they lose out on money, they lose out on people to constitute their forces or their troops. It's that that is a direct threat to their authority. Those claims are often based on a notion of imputed political opinion, but the gang imputes an anti-gang political opinion in people who resist them. And again, some of the groundwork for that was laid in the gender asylum context couple of decades earlier. But you have to understand that people submit volumes of material on the nature of gangs, and the UNHCR has come out with guidances on it.
June:
Does gender-based claims often figure into people seeking asylum status in gang-related cases? I'm thinking of women who fear being recruited, fear of rape, the inability to work or to educate one's children. [crosstalk 00:22:49].
Deborah Anker:
Absolutely. You're saying it. I couldn't have said it better than you just said it. Yes, yes.
June:
Okay.
Deborah Anker:
Yeah. I feel like the gender cases really provided the structure, the doctrinal bricks and mortar that laid the groundwork for the gang cases. We've come to a much more sophisticated, much more nuanced, much more intelligent understanding of what political opinion is than communist, anti-communist demonstration in the streets of Moscow. We adopted the Refugee Convention at the same time as we were in the midst of a Cold War. That's a whole other subject to get into, but I think we have a much more... And women have helped. The women's claims have helped us understand what political is, that resistance to that kind of violence is an expression of political opinion, and that men impute political... "She's challenging my authority. Because she's a woman, forget that. She's dead on arrival." She flees, or she flees because she feels like she has a right to flee. She has a right not to be treated that way. And it's very powerful. Very, very powerful women and very powerful statements and testimony that they give in court now that we understand how to present those claims better.
June:
So, you recently co-authored... Let's switch over to climate change.
Deborah Anker:
Sure.
June:
You recently co-authored a report on climate change and migration. Among other things, we find the shocking, at least I find it shocking, assessment, "Experts predict that, by 2050, climate change will displace nearly four million people across Mexico and Central America. We cannot wait another 25 years to address these issues." Could you elaborate on that?
Deborah Anker:
Well, some people say the biggest effect of climate change is going to be on migration. Yeah, there's a vast number of people who have already been displaced and who will continue to be displaced. We have only started to think through how we're going to manage that displacement and how we're going to respond to it. 10 years ago, you probably couldn't find anybody, because our understanding of refugee law has really been developing over time. There was a period of time when people said, "Climate is one thing, political persecution is another thing. These are just two separate things." But now, because of the work that was done in gender asylum and other areas, there's much more understanding of what... Much more nuanced understanding of what these things are.
Deborah Anker:
Also, the one thing I think we didn't talk about before is, to establish persecution, you have to establish it's a serious harm, and there's been a failure of state protection. You also have to establish that there is a connection, some cause or link, between that persecution or anticipated persecution and one of the five grounds in the Refugee Convention. That cause or link, though, is, to quote the statute, at least one central reason. It doesn't have to be the only reason. It doesn't have to be the dominant reason. It can't be a trivial reason. That's why it says at least one central reason. But it doesn't say the central reason. It says at least one central reason. The law now recognizes that there can be multiple reasons that people flee, which is very obvious, right?
Deborah Anker:
You've been displaced because you fear violence from your domestic partner who's been violent with you and has threatened to kill you and your kids, so you leave for that reason. You're an indigenous woman and your family's having a harder and harder time eking a living from the earth because of effects of climate change, such as desertification or salinization of water. And you also want to come to the United States, because in Boston, there's a good community of people, some of whom you know, and you understand that your kids will actually be able to get an education, and life is not as hard as it is. Right? Those are a whole mixture of reasons. I describe that way just to say... We all know this, right? You don't do something for one reason. There's multiple reasons that you do things, especially big things, like leaving your home country and risking all the things that could happen to you on the journey. I think that's been a really important part of this development and the law, is an understanding that there can be multiple causes.
Deborah Anker:
In terms of the kind of people that might qualify as refugees because of climate-related issues, you might have... The most obvious one would be a climate activist who's critical of his or her government, and they're going to go after him because they won't tolerate that kind of dissent. Right? That's a political opinion case. You can look at it really straightforward. Although he might have other reasons for coming to the... As I was elaborating them before, he may have other reasons for wanting to come here also. If somebody's going to look for this unitary reason, it could damage even a claim like that, which seems most straightforward.
Deborah Anker:
You also have indigenous people. We've talked about them. They have been particularly affected by the loss of land. There may be a government, and this is true in Guatemala, it's true in other countries in that region, that the government withholds relief to certain kinds of communities, right? It develops programs that are helpful in dealing with climate consequences, but only to certain groups, or disproportionately to certain groups, or keeps out indigenous people. I guess people can have mixed reasons for doing it. These are the kinds of cases where you may have enough state responsibility to make a claim under the Refugee Convention.
June:
Mm-hmm (affirmative). From what you're saying about the salinization and the dry lands, we tend to think of climate refugees as those fleeing hurricanes and earthquakes, and there certainly seemed to be an escalating number of those.
Deborah Anker:
Yeah. We took everybody. Yeah.
June:
People who are fleeing droughts and floods are also climate refugees or climate [crosstalk 00:30:57]?
Deborah Anker:
Yeah. I think you can ask yourself that question, because there isn't a definition written in stone. But certainly, I think, based on everything we know about the Refugee Convention, sure, they can qualify. Yeah. Those slow-onset climate events can be more profound for people than even the more dramatic earthquakes and hurricanes and whatnot. Although, you see what's happened. Haiti's a really good example right now, a really good example, because clearly, people are displaced because of climate issues. They're also displaced because of political issues, and they're coming here, and we're trying to stop them, unfortunately. There, you have mixed reasons, mixed causes, right?
June:
In your opinion, what does President Biden need to do in terms of reforming immigration infrastructure to meet the rising climate displacement?
Deborah Anker:
Well, I think one thing, it's not the whole solution, but I'm glad the door hasn't been shut on it, is the recognition that, under some circumstances, some of the refugees, some of these displaced people may qualify as refugees under the Refugee Convention and U.S. domestic law incorporating the Refugee Convention into domestic law. They may qualify as refugees under the international legal structure that we have.
Deborah Anker:
We have other mechanisms in our law, such as temporary protected status, which may be available. The problem is that we protect people who are already here by giving them temporary protected status. It hasn't been vehicle for bringing people here. But that's a legislative fix or legislative initiative that could be very helpful and a very helpful add-on to our list of potential remedies and vehicles, is expanding Temporary Protective status so that it can extend to people who are not in the U.S., and it can be a vehicle to bring people to the U.S.
Deborah Anker:
Political institutions and presidents and things tend to like a more orderly admission and controlled admissions process than the chaos that happens when we don't have any of these structures in place. There's also been talk of a... And there's advanced parole. There's various mechanisms. Some of them, TPS is granted in the statute, but others of them, deferred enforced departure has no statutory basis. There's a bunch of different things that are out there and things that could be strengthened, protections that could definitely be strengthened.
Deborah Anker:
And we've had a long history. We've had a long history, not just of dealing with spontaneous arrivals of asylum-seekers, but bringing refugees from abroad to the U.S. That was a big part of the motivation for the Refugee Act of 1980, which, again, brought the U.S. law to conformity with international law and adopted the international definition of refugee. Big motivation for the 1980 Refugee Act was to deal in a more humane and sensible and less chaotic manner with the Vietnamese boat people who were fleeing because of a war that we took responsibility for, finally, having played a large part in making happen.
June:
Could you explain for our listeners some of the things that you've just talked about, like temporary protective status and the parole?
Deborah Anker:
Well, these are statuses that allow... Parole, you can actually bring somebody potentially into the United States, although it hasn't been used in that way on a consistent basis. Temporary protected status is for people who are in the United States. The classic example is they're in the United States. The Haitians. They're in the United States, and there's a hurricane, or there's an earthquake. The government can designate a country to get deferred departure for. I'm sorry. Protected status for. They would say, "Anybody who's in the United States as of a certain day from Haiti will not be returned and will be given this temporary protected status." The two problems with it are, one, it doesn't bring people here who aren't here already. There's a cutoff date. And it also doesn't grant any kind of permanent status.
June:
Mm-hmm (affirmative). You have people year after year after year reapplying for this [crosstalk 00:36:29].
Deborah Anker:
Yeah. It's not even just that. It's that they don't have any permanent citizenship. They can't become citizens. They can't really settle down. That's a big problem, but it's a legislative fix. Some of these things are legislative fixes, some of them could be helped by administrative fixes. Obviously, there's a big problem with where Congress is at these days to envision these kinds of changes as important and, modest as they are, being made possible.
June:
Yeah. Some advocates have said that asylum could be more readily granted if the definition of membership in a particular social group was expanded to include people suffering the consequences of climate change. What do you think of that proposal?
Deborah Anker:
I think it's a bad idea. I think it's important that we think of these categories under a more general principled human rights framework. It's not like we're saying... We're not enacting a specific law that says, "Women who have been beaten qualify as refugees," right? We're saying, "People who have experienced serious human rights abuses and are unprotected qualify as refugees." I think the more that we just put examples in there, the more we exclude the ones that are not there, and we also undermine the principle that this is international law, and this is international protection, and it's based in international law. It's not just based in domestic law. You see what can happen with domestic law. You can have a lot of different voices in there as we've had, certainly, with this Congress. I think it's important that it be based in international law, that we recognize it as an international legal obligation, and that we have principled bases for creating categories, not just very specific ones.
June:
Mm-hmm (affirmative). Have you yourself seen cases of what I might call climate-induced asylum-seekers?
Deborah Anker:
Well, I think we've certainly seen cases, the ones that I was describing before of women who are displaced because of violence, who need to leave because of violence from a spouse or a domestic partner. But part of their reasons for leaving also have to do that they don't see a future for their kids, that the land is being destroyed, that the water's become undrinkable, that there's been this desertification, and all of that affects their ability to survive. There's climate reasons, and there's also reasons that we've recognized for a longer period of time constitute a basis for asylum protection, such as violence, spousal or significant other, sexual and related violence.
June:
Are you optimistic, pessimistic, or somewhere in between about the possibility of people who are seeking to come to this country and looking for asylum, either for gender-based reasons or climate displacement or, as you've so eloquently said, all the combinations of reasons that people are looking to be in the States? What do you think the prognosis is?
Deborah Anker:
These are profound questions, because the question's also about whether you're an optimist or a pessimist. I mentioned to you before, I just was meeting with a group of first-year law students here who are feeling a sense of real anxiety about what they're going to be able to do with their lives and whether they're going to be able to make a difference and really wanting that to be the case, really wanting to make a difference. I think believing that you can make a difference is really important.
Deborah Anker:
Sometimes, I'm ridiculously optimistic and ridiculously pessimistic. This hasn't been an easy couple of weeks, watching what's going on in Congress. It's worse than I thought it would be, I guess. But in the long run, we have to succeed, if we're going to have an earth and a democracy and live together. Without a lot of self-flagellation, I think we have... And this is something I'd like to see the Rockefeller Center, I was talking to you about it before, convene some meetings about. I think that we need to really own that history, our history about Central America, and not in a way that's just beating ourselves up for the sake of beating ourselves up, but a sense of real responsibility for what's going on there and what has gone on there, and recognize that that has caused a great deal of displacement. Human beings have been displaced. Human beings' lives have been really made horrible because of it, right? It's not just about these people arriving disheveled at the border. I think that's an important thing that we need to engage in ourselves.
June:
Thank you very much for being here with us today.
Deborah Anker:
No problem.
June:
[crosstalk 00:43:16]. You've been listening to Faculty Voices with Deborah Anker, clinical professor of law at Harvard Law School and founder of the Harvard Law School Immigration and Refugee Clinical Program. Thank you for being here.
Deborah Anker:
No problem.