The Fight for Freedom Against Forced Marriages

Have any of you women or men out there wondered about the difference between arranged marriages and forced marriages?  One of my refugee and Asylum Law students, Shantel Woodard, has written a thoughtful paper that tells us the differences between these types of marriages. Shantel has given me permission to publish her paper on my blog.  Read and learn.

The Fight for Freedom Against Forced Marriages: Women Are No Longer Chattel

By: Shantel Woodard

I. Introduction

             Stories of individuals entering a marriage, having never met their future spouse prior to the wedding ceremony, seems like something that only happens in a Bollywood movie, never in real life. However, the concept of forced marriage is very much alive in reality and it affects thousands of people all over the globe. This type of marriage is what drives many women and sometimes men to seek asylum in other countries. Forced marriage is mostly occurring to young females in which they are being forced to marry someone against their will. More often than not, these young females may also be trying to flee marriages they have already entered but cannot legally obtain a divorce without fear of certain violence against them. These women often suffer at the hands of their oppressors, by being raped, violently beaten by their spouse or having to submit female genital mutilation, (“FEMALE GENITAL MUTILATION”) or more.[1]

Gender-based refugee claims are becoming more and more prevalent in today’s world with forced marriage as the leading cause for asylum.  However, in our current legislation, we make no mention of forced marriage as an expressly protected ground for which asylum eligibility can be based on.[2] Usually, women’s claims for asylum are based on their fear of being raped, beaten, FEMALE GENITAL MUTILATION, or being murdered if forced to return her country of origin. With this type of fear, a decision could be made based on the assessment of whether the harm rises to the level of “a well founded fear of being persecuted,” but the bigger emphasis should be placed on the underlying fact that these individuals would not be placed in this danger, had they not been subjected to the concept of forced marriage. Asylum officers and immigration judges are conveniently skirting around the issue of forced marriage. The most important issue with forced marriage is the fact it is widely culturally and religiously accepted outside the United States, which is why there is a need for redress by our government officials.

            It is my contention that we must as a society, which is empowered by the ideals of freedom for all, do more to help those who are seeking asylum based on escaping a repressive forced marriage. To better understand the concepts involved in this subject, the discussion will cover the difference between forced and arranged marriages, the history behind the concept of forced marriage as a venue for asylum in the United States, the reasons behind why current marriage laws in India do not effectively prevent forced marriages in children due to social, religious, and economical reasons, and proposing a solution to help those who are facing these problems from all over the world.

II. Forced Marriage versus Arranged Marriages

            The concept of marriage without having a choice of the person seems foreign to most Americans. However, it is important to distinguish forced marriages from arranged marriages. While the difference may seem miniscule, it is actually quite important in regards to seeking asylum based on these types of marriages. The difference can lead the immigration courts to either grant or deny asylum. According to the Department of Homeland Security, over 10,000 individuals were granted asylum in 2010 alone.[3] Predominately, these individuals were from countries where forced marriage is a long held culture.[4]

The United States State Department defines forced marriage as a marriage where “at least one party does not consent or is unable to give informed consent to the marriage and some element of duress is generally present.”[5] Additionally, forced marriage has been deemed a “practice similar to slavery” by the United Nations Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.[6] It defines forced marriage as any practice which:

(i) a woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) the husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) a woman on the death of her husband is liable to be inherited by another person.[7]

Forced marriage cannot be defined by any one characteristic. Forced marriage has been described as a marriage that includes threatening behaviors, imprisonment, physical violence, rape, abduction, and can even result in murder.[8] Author Kim Thuy Seelinger states that, forced marriages are quiet affairs which usually involve a father trying to make money off the selling of daughters or relatives making arrangements for the young girls in the family to be given to family friends for free labor.[9] Additionally, there are various forms of forced marriage such as: child marriage, wife inheritance, compensation marriages, and temporary marriages. Child marriage, often referred to as early marriage, is where young children are forced to marry before the age of consent.[10] Additionally, the Foreign Affairs Manual states that these types of marriages are a form of child abuse, and give the statistics that forced marriages often “involve young women and girls aged between 13 and 30 years, although there is evidence to suggest that as many 15 percent of victims are males.”[11] Wife inheritance is where a widow is forced to marry her brother-in-law, because women are seen as property of their late husband in these instances.[12] Compensation marriages, which are typical in this genre, are where families force their daughters to marry, so they can satisfy their debt with another family. The most used is temporary marriages in which men pay to have sex with young girls for a short time period, and then they obtain a quick divorce so they can marry again.[13]

In contrast, an arranged marriage is a marriage that has been arranged by both families of the respective parties, but the freedom of choice in accepting or declining the marriage contract is available to either party.[14] The freedom can be defined as a lack of shame brought upon your family if the individual should choose they do not want to go through with the marriage.[15] In the case that the marriage does not result from the arrangement, the family will move on to another prospective spouse. [16] This shows that a level of consent on the part of the individual is necessary to result in a marriage.

The United States State Department views arranged marriages differently than forced marriages.[17] In their opinion, arranged marriages are a “long standing tradition in many cultures and countries,” and they are respected.[18] Seelinger states, that recent training documents for U.S. Asylums agents state that forced marriages are merely, “an arranged marriage that is enforced against the victim’s wishes.”[19] Further, the documents also state, “[f]orced marriage is an arranged marriage against the victim’s wishes and without the informed consent of both parties …. Forced marriage constitutes a human rights violation.”[20]

This reinforces the notion that while both are similar in concept, they fall on opposite ends of the spectrum.[21] The degrees of consent shown in each situation can either prove or disprove the notion that a forced marriage that is going to occur.[22] To determine the degree of consent, factors that must be considered are the level of input the parents accept from their children, the amount of pressure on the individual to go through with the arrangement, and the tolerance of the parents to allow their children to make a decision.[23]

III. History of Refugee and Asylum Laws in the United States

A. General

The Refugee Act of 1980 created the current asylum guidelines used in the United States.[24] Passed in 1980, the Act effectively amended both the Immigration and Nationality Act and the Migration and Refugee Assistance Act of 1962.[25] The need for the United States government to step in and provide aid to those citizens of other countries where their own governments have failed or refused to act was emerging as a significant issue.[26] Congress’s declared purpose for the Refugee Act was to further the United States’ history of “respond[ing] to the urgent needs of persons subject to persecution in their homelands, including, where appropriate, humanitarian assistance for their care and maintenance in asylum areas.”[27]

In order to qualify as refugee seeking asylum in the United States, a person must pass a four prong test.[28] First, the person must be someone who is “outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided.”[29] Second, the person must be “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country.” Third, the person must show persecution or have “a well-founded fear of persecution” if forced to return to the country of origin.[30] Fourth, the persecution or fear of persecution must be “on account of race, religion, nationality, membership in a particular social group, or political opinion.”[31]Failure to prove all of the prongs will result in the person not deemed a person eligible for asylum.

            The most groundbreaking decision in the area of asylum law came from the decision in Matter of Acosta. Acosta, a taxi driver from El Salvador was denied asylum by the BIA.[32] The BIA analyzed certain factors of the test and made definitions for each. The BIA defined the meaning of the word “fear” in regards to asylum law as, “a genuine apprehension or awareness of danger in another country.”[33] “Fear” must be determined on a case-by-case basis.[34] “Well-founded fear” was something that was “objective” and it had to be based on, “facts that show there is a realistic likelihood he will be persecuted upon his return to a particular country.”[35]  The BIA goes on to say that, “If there is a real chance that he will suffer persecution, that is reason good enough and his ‘fear’ is ‘well-founded.”[36] This is because the BIA found that they could not “find a meaningful denominator,” which means they could not find a bright line rule that could be applied in all cases.[37] The third factor analyzed addressed the “persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[38] The BIA stated that the meaning of a “particular social group” should be construed in light of the manner that the other protected grounds are.[39]  The other four protected ground are aimed at establishing an immutable characteristic which means something that “cannot be changed or should not be required to change because it is fundamental to their individual identities or consciences.” [40] The last factor discussed was that “the alien must be unable or unwilling to return to his country of nationality or to the country in which he last habitually resided because of persecution or his well-founded fear of persecution.”[41] The BIA stated that the threat of persecution should something that is “country-wide” and not just in one part of the country.[42]

B. Gao v. Gonzales and the Broadening of the Definition of a Particular Social Group

The landmark case in the United States to recognize that forced marriages should qualify as reason applicants could seek asylum in the United States is Gao v. Gonzales.[43] On March 3, 2006, the Second Circuit decided Gao v. Gonzales.[44] The result of this decision for Hong Ying Gao, a young Chinese refugee, meant that was allowed to stay in the United States.[45] Gao fled to the United States in search of asylum because she feared for her life and the safety of her family members had she stayed in China.[46] The Court relied on a three part test to determine, whether a person qualifies as a member of a particular social group.[47] The test consisted of three factors: “(1) identify a group that constitutes a “particular social group” within the interpretation just discussed, (2) establish that he or she is a member of that group, and (3) show that he or she would be persecuted or has a well-founded fear of persecution based on that membership.”[48] It is because of this “well founded fear” that the court found that she qualified for asylum based on her membership in a particular social group.[49] According to the court, Gao’s social group consisted of “women who have been sold into marriage (whether or not that marriage has yet taken place)”, who live in an area of China that enforces and validates forced marriages.[50] The Second Circuit found that Gao satisfied all of these requirements based on her membership in a particular social group.[51] With the court’s opinion in Gao, the Second Circuit has effectively helped other circuits define what constitutes a particular social group.[52]  Additionally, through this decision, courts can decide how and when to use the definition of those who qualify for membership in a particular social group based solely on gender.[53]

            The following case of Chen v. Gonzales[54] distinguishes the Gao case, and it further defines what is necessary to be proven in order to be granted asylum in the United States.[55] Xiu Yun Chen, a young Chinese woman applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), claiming that she escaped from China to escape a forced marriage with the son of a local official.[56] Due to the discrepancies in Chen’s testimony, her testimony was deemed not credible.[57] The IJ, in fact, described it as, “meager, extremely vague, implausible and totally made up.”[58] In her petition for review, Chen challenges the determination of her credibility, claiming IJ misconduct when he ignored her explanation for the inconsistency of her testimony regarding the meeting with the official’s son, he drew improper inferences about her use of a false passport to gain access to the United States, and further that his reasons were “vague.”[59] Additionally, Chen challenges the determination that she “did not fear persecution as a member of a particular group.[60] In regards to her first contention, the court denied her allegations, explaining that reviews of an IJ’s judgment is “entitled to have a highly deferential review.”[61] Further, that the IJ had a “well founded” reasoning for deeming her credibility to be lacking.[62] Chen tried to rely on the particular social group in Gao, to prove that she belonged under the same definition; however, the court found that it was impossible to rely on that when the facts do not show that she was sold into marriage.[63] The Court reasoned that Chen was ineligible for asylum, because she cannot show a well-founded fear that she will be singled out for persecution on that basis in the future.[64]

            While Chen has distinguished the Gao case, In re Kasinga followed the same logical progression.[65] Kasinga was a nineteen year old girl from the country of Togo who fled her home country because of female genital mutilation or (“FEMALE GENITAL MUTILATION”).[66] Baxter expresses his belief that the court’s decision in Gao broadened the strict view that “a nexus must exist between member ship in a particular social group and the persecution based on belonging to that social group.”[67] According to Baxter, both Kasinga and Gao “shared the common characteristic of being females and being members” of the group that practiced this ritual.”[68] In his case note, Baxter goes on to compare the similarities between Gao’s village in China and Kasinga’s tribe of Tchamba-Kunsuntu.[69]  He states that main difference between the two situations is the fact that not all women in Gao’s village were sold into marriage, whereas in Kasinga’s tribe all women had to undergo FEMALE GENITAL MUTILATION.[70] It is because of this difference that he believes that the requisite nexus between persecution and the membership characteristic could not exist.[71]

As an unintended result of the holding in Gao, Baxter believes that it is going to open the floodgates for women to seek asylum in the United States.[72] However, he believes that this was a necessary step in asylum law to help those women are being treated like slaves without any aid of the government to protect them.[73] In contrast author Sara Siddiqui undermines this theory in her law review article, Membership in a Particular Social Group: All Approaches Open Doors for Women to Qualify. She believes that this “floodgate theory” came about from the case Matter of R—A—.[74] Siddiqui claims that, “opponents of gender-based asylum claims [will] suggest that authorizing these claims will result in a national outpouring of refugee women from across the globe.”[75] Her argument is based on the notion, that the mere definition of a refugee is enough of a filtering function to limit the number of applicants seeking asylum.[76] Further, the additional fact that those applying for asylum have the burden of proving the merit of their claims should be enough of a substantial “hurdle” for those seeking asylum.[77] She strengthens her argument by including language by the Tenth Circuit which states:

[t]here may be understandable concern in using gender as a group-defining characteristic. One may be reluctant to permit, for example, half a nation’s residents to obtain asylum on the ground that women are persecuted there. . . . But the focus with respect to such claims should be not on whether either gender constitutes a social group (which both certainly do) but on whether the members of that group are sufficiently likely to be persecuted that one could say that they are persecuted “on account of” their membership.[78]

Siddiqui’s argument is a reflection of the argument used in Karen Musalo’s article, Protecting Victims of Gendered Persecution: Fear of Floodgates of Call to (Principled) Action? Karen Musalo goes into depth on the history that mere acceptance of gender asylum does not give rise to a severely increased amount of claims.[79] She gives the example of Canada which became the first country to recognize to address gender issues, and accepted that gender persecution qualified for refugee protection.[80] Musalo lists out several reasons for the lack of a dramatic increase in women seeking asylum.[81] Women from countries in which they lack rights, often have no ability to leave their home in “search of protection.”[82] Additionally, the women are usually the primary caretakers in their family.[83] The choice of choosing to flee the country in search of help and leaving family to behind, or trying to flee with family proves to be an arduous task.[84] Lastly, even if the women were able to make the choice to leave, they usually are lacking the finances required to travel to another country to seek asylum.[85]

Siddiqui’s and Musalo’s views seem to be more sympathetic to those seeking asylum in comparison to Baxter’s view. While all three authors want to find ways to help people escape oppressive relationships, Baxter seems to be under the impression that he would be forced with an influx of women seeking asylum, but he would do it because it is a necessary sacrifice. The other two authors seemed to have debunk the “floodgate theory,” therefore there would be no sacrifice on any country, much less only the United States in accepting those seeking asylum. Therefore, their arguments seem more credible than Baxter’s which seems to have left out crucial information that is needed in making a decision on gender asylum.

IV. Analysis of Current Laws on Marriage in India

            The predominance of forced marriages occurs because of long held traditions or religious practices.  The focus of this section will be laws that have been created with a religious basis. While countries may differ on the language used in their laws, for the most part they hold the same beliefs. It is because of these laws, that women are fleeing their home countries to seek asylum in the United States. The analysis of India’s laws and regulations is important, due to the fact that most of the major religions of the world can be found within India’s borders.

The first law is the Hindu Marriage Act of 1955. This law is the current law for Hindu citizens in the country of India. Similar to the United States with regards to being governed by the U.S. Constitution, the country of India is governed by the Constitution of India. Each religion is governed by their own set of laws in regards to their family and personal matters.[86]  India has a population of over 1 billion people, and it is important to note that Hindus lead the majority with 80.5%, Muslims came second at 13.4%, followed by Christians, Sikhs, Buddhists, Jains, and others. [87] It is sufficient to say that a majority of the country abides by the Hindu Marriage Act of 1955. Under the Hindu Marriage Act of 1955, only allows Hindus, Sikhs, Buddhists, and Jains to inter marry.[88]

            The Hindu Marriage Act sets out the conditions for marriage in section 5, which states:

A marriage may be solemnized between any two hindus, if  the following conditions are fulfilled, namely: (i)  neither  party has a spouse living at the time  of  the marriage, (ii)at the time of the marriage, neither party- (a)is  incapable  of giving a valid consent  to  it  in consequence of unsoundness of mind; or (b)though  capable of giving a valid consent, has  been suffering from mental disorder of such a kind or to such an  extent  as  to  be  unfit  for  marriage  and   the procreation of children; or (c) has been subject to recurrent attacks of insanity or epilepsy;] (iii) the bridegroom has completed the age of  2 [twenty- one years] and the bride the age of 2 [eighteen years] at  the time of the marriage; (iv.)  the   parties  are  not  within  the  degrees   of  prohibited relationship unless the custom or usage  governing each of them permits of a marriage between the two; (v)  the parties are not sapindas of each other, unless  the  custom or usage governing each of them permits of a  marriage between the two.[89]

Following a similar procedure, Muslims marrying a Muslim have a choice between their uncodified personal law and the Special Marriage Act.[90] For the most part, Muslims’ uncodified personal law is in accordance with the same conditions set forth by Hindu Marriage Act of 1955. The major differences come in regards to who someone can marry under each respective Act.[91] Under Muslim law, “a man can marry a woman of the communities believed by it to be Ahl-e-Kitab”.[92] These communities contain Christians, Jews and any other monotheistic faith.[93] In regards to Christian marriages, Dr. Justice AR. Lakshmanan explains, “The Indian Christian Marriage Act 1872 says that apart from Christian-Christian marriages the marriage of a Christian with a non-Christian must also be solemnized under this Act (Section 4).”[94] Lastly, The Special Marriage Act of 1954 says that anyone of interfaith can marry in compliance with its provisions.[95] However, this creates the conflict of which act will a Christian with a non-Christian marry.[96]

The particular section that should be closely analyzed is the age in which consent may be given for marriage. While it says that the minimum is twenty-one for males and eighteen for females, this has not been strictly enforced in the country today.[97] According to author Subash Mohapatra, “6.4 million Indians under the age of 18 are married and 130,000 girls under 18 have become widows.”[98] Additionally, in each Act there is a large discrepancy with the prohibited degrees of marriage.[99] Under the Special Marriage Act 1954, “the parties are not within the

degrees of prohibited relationship … [which is defined as] a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule.”[100] Under both parts of the schedule there are 37 entries of prohibited degrees.[101] While 33 of those entries are prohibited under all other laws, the last entries cause issues for certain religions.[102] These entries include: Father’s brother’s son, Father’s sister’s son, Mother’s sister’s son, Mother’s brother’s son, Father’s brother’s daughter, Father’s sister’s daughter, Mother’s sister’s daughter, and Mother’s brother’s daughter.[103] These are all deemed prohibited relationships by the Special Marriage Act.[104] The prohibition of first cousins under the Special Marriage Act 1954 is in agreement with the Hindu Marriage Act 1955, however in Muslim law all first cousins both sides are outside the category of prohibited degrees in marriage.[105] Additionally, Jewish and Bahai communities allow for the entering of marriage with a first cousin.[106] Dr. Lakshmanan states, another important point worth noting here is that under the Hindu Marriage Act 1955 marriage with second cousins (father’s first cousin’s children) is also not allowed due to the restriction known as “sapinda” relationship.”[107]

The purpose of the analysis for the differing marriage laws is to give perspective on the current laws of India, and how the lack of enforcement is hurting young girls by forcing them to get married at young ages, and worse to older men. Author Subash Mohapatra documents the atrocity that is going on India today in his article, Child Marriages Persist in Rural India. He argues that the practice of child marriage is something so commonly accepted by the majority of Indian society, it is hard to put an end to it.[108] He goes on to say that, “religion plays a key role in such harmful traditions and practices.”[109] Even with the entirety of laws currently in place to protect children, it is often ignored due to the benefit it imparts on poor families who need to marry their daughters, so they can feed their other children.[110] Mohapatra states that the Indian government is in the process of creating strict and easily enforceable laws to replace the current ones, which have been proven ineffective.[111]

V. Proposed Solutions

The biggest issue concerning women, forced marriage and gender persecution is the fact that the statutory provision lack definition and the ambiguity of the language lends itself to being misinterpreted by different courts. It would be a simple solution, to just make a number of particularized groups in order to satisfy everyone.  However, using that approach, there would be a never ending amount of groups being created on a daily basis. Additionally, the level of discrepancies that could potentially occur across the circuit in determining asylum puts too many at risk of being denied asylum when they actually qualified for it.

There are a few ways in which this problem can be properly addressed by Congress. Siddiqui offers that perhaps a possible solution, would be to have decision makers define that the “on account of” requirement should be used to determine if there is a “casual connection” between persecution and membership.[112] This is in essence relaxing the nexus that is required in asylum cases.

The next possible solution would be to eliminate “societal perception” when determining a particular social group.[113] Siddiqui believes that because of “societal perception’s” way of making a group of people stand, it effectively makes them an easier target.[114] This reasoning in essence says that we should try to minimize attention given, in order to prevent the risk of a group being targeted by persecutors.

If all else should fail, then it would be recommended that gender needs to be added as a protected ground for which asylum can be based upon.[115] While this creates a broad group, it is a necessary one in order to protect the women of the world. As previously discussed, it would not create an absurd increase in the amount of individuals seeking asylum, as there are natural factors which can weed the undeserving out. Further, by creating this group, courts will finally realize that “women are linked by the common reason for their persecution,” which is their gender.[116]

VI. Conclusion

            The decision in Gao v. Gonzales set the precedent for forced marriage to become a ground for asylum in the United States.[117] It further expanded women’s access to asylum protection.[118]  Forced marriages deprive women of the right to choose who they marry, and as such it should be highly regarded as a form of slavery and a crime against humanity.[119]

The analysis of Indian laws is so important not only because it has a high percentage of the world’s population living there, but because their long held tradition will continue the perpetuation of children being forced to marry at young ages if their laws are not strictly enforced.  As Mohapatra states, “the law alone cannot curb this harmful social practice.”[120] Additionally, the reasons for forced marriage are not always because of tradition, but because families are faced with economic pressures as well.[121] Child marriages are advantageous for poor people because it is cheaper for the family than adult marriages.[122] Also, by getting rid of daughters earlier, the family will able to provide for the other siblings with the excess in money saved from not having to feed and clothe her.

As the oldest female child of a deeply religious Hindu man, it was ingrained from a very young age to think about marriage. It is for these reasons, why I am so passionate for my condemnation of forced marriages. Because of the country that I live in, I am free to marry who I want, when I want, and it won’t have to be based on caste or what his family can provide to mine. This opportunity should not just be limited to those who reside in the United States.  As Baxter states, “[Gao] takes asylum law a necessary step closer to embracing morality and compassion rather than strict red tape regulations.”[123] These women need our compassion and consistent rulings by IJs. Whether U.S. courts begin to include gender as a particular social group or enumerating gender as a protected ground for which asylum may be sought doesn’t matter.[124] What matters is the fact that women all over the world deserve a fundamental right of freedom due to them.[125] Women should no longer be considered chattel or a tangible object and the United States needs to get back to the original purpose of refugee law, which is protecting basic human rights of those who can’t fight for themselves and their government is either unwilling or unable to provide the assistance they need.[126]

[1] See Matter of A—T—, 24 I. & N. Dec. 617, 617-18 (BIA 2008) (citing Bah v. Mukasey, 529 F.3d 99, 103 (2d Cir. 2008)), involve the “partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.”  World Health Organization, Female Genital Mutilation: Fact Sheet (May 2008), available at See also In Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996) (en banc), the Board of Immigration Appeals held that a well-founded fear of being subjected to female genital mutilation in the future may be a basis for asylum in this country).

[2] INA§101(a).

[3] Department of Homeland Security, 2010 Yearbook of Immigration Statistics, August 2011,

[4] Id.

[5] Danielle L.C. Beach, Battlefield of Gendercide: Forced Marriage and Gender-Based Grounds for Asylum and Related Relief, 09-12 Immigr. Briefings 1, 6 (December 2009).

[6] Kim Thuy Seelinger, Forced Marriage and Asylum: Perceiving the Invisible Harm, 42 Colum. Hum. Rts. L. Rev. 55,  60 (2010).

[7] Id.

[8] Id.

[9] Id. at 59.

[10] Id.

[11] Beach, supra note 5, at 6.

[12] Seelinger, supra note 6, at 59.

[13] Id.

[14] Id. at 61

[15] Id.

[16] Id.

[17] Beach , supra note 5, at 6

[18] Id.

[19] Seelinger, supra note 6, at 61.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] INA sec 101(a)

[25] Cara Goeller, Forced Marriage and the Granting of Asylum: A Reason to Hope After Gao v. Gonzales, 14 Wm. & Mary J. Women & L. 173, 176 (2007).

[26] Id.

[27] Id.

[28] INA, supra note  2.

[29] Id.

[30] Id.

[31] Id.

[32] Matter of Acosta, 19 I. & N. Dec. 211, 213 (1985). Acosta is a 36-year-old taxi driver from  El Salvador.  Id. at 216. In 1976 he, along with several other taxi drivers, founded COTAXI, a cooperative organization of taxi drivers of about 150 members. Id. COTAXI was designed to enable its members to contribute the money they earned toward the purchase of their taxis. Id. Starting around 1978, COTAXI and its drivers began receiving phone calls and notes requesting them to participate in work stoppages. Id. COTAXI’s board of directors refused to comply with the requests because its drivers wanted to keep working. Id. Beginning in about 1979, taxis were seized and burned, or used as barricades, and COTAXI drivers were assaulted or killed. Id. Three of the COTAXI drivers who were killed were friends of Acosta. Each was killed after receiving an anonymous note threatening their life. Id. at 217. During January and February 1981, Acosta received anonymous notes threatening his life. Id. After the third note, Acosta was beaten in his cab by three men who took his taxi. Id. After being assaulted, he left El Salvador because he feared for his life. Id. Ultimately, the court denied Acosta’s application for asylum based on the fact that he could change his profession, and was not of a particular social group. Id. at 236

[33] Id. at 225

[34] Id.

[35] Id. at 226.

[36] Id at  224-25.

[37] Id. at 224.

[38] Id. at 232.

[39] Id. at 233., See Doctrine of Ejusdem Generis, Ballentine’s Law Dictionary 545 (3d ed. 1969). (Of the same kind or class. The rule of statutory construction that where general words follow a designation of particular subjects or classes or persons, the meaning of the general words will ordinarily be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose.)

[40] Id.

[41] Id. at 235.

[42] Id. at  236.

[43] Gao v. Gonzales, 440 F.3d 62, 64 (2d. Cir. 2007) Hong Yin Gao is a female native of the People’s Republic of China who entered the United States without proper documentation in 2001. Id. She applied for asylum and withholding of removal. Id. Her parents contracted with a “go-between” to arrange a marriage for her. Id. Chen Zhi, paid the “go-between” $2200 to be matched with Gao when she turned 21. Id. The go-between then gave Zhi’s money to Gao’s mother, who used the funds to pay family bills. Id. Initially, Gao considered Zhi to be “a rather accept able potential husband.” Id.  She changed her mind when she determined that he had a “bad temperament” and gambled. Id. The relationship soured when Zhi refused to pay back his debts, and he once slapped her and refused to cancel the engagement. Id. After being slapped, Gao moved an hour away to the city of Mawei, leaving her family behind. Id. Zhi began harassing Gao’s family and violently threatening them. Id. This led to Gao’s mother paying for Gao to be smuggled to the United States. Id.

[44] Id.

[45] Id.

[46] Id.

[47] Id. at 67.

[48] Id. citing  Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). (Iranian woman claimed she was entitled to withholding of deportation, that she was eligible for asylum , and that the BIA improperly denied her request for suspension of deportation)

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Goeller, supra note 25, at 177.

[54] Chen v. Gonzales, 229 Fed. Appx. 413, 414 (2007). Xiu Yun Chen, a Chinese national from Fujian province, applied for asylum claiming that she fled China to escape a forced marriage with the son of a local official. Id.  The son of her village chief threatened and harassed Chen and her family after she refused his proposal of marriage. Id. After months of harassment from the official’s son and his associates, she fled to the city of Guangzhou. Id. At her hearing Chen presented conflicting testimony about the interactions with the official’s son after she moved. Id.  Her conflicts included her first she said she did not, but then she testified that the official’s son had tracked her down in Guangzhou. Id. When confronted about the inconsistent testimony, Chen tried to explain away what she meant by her first answer. Id. She stated that she had not seen Lin in the village. Id. However, Chen insisted that Lin came to Guangzhou, to harass her into marrying him, and threatened to return and take her back to the village. Id. Chen escaped to the United States with the help of friends and family by paying smugglers approximately $ 15,000. Id. Chen stated that she still owed more money to the smugglers for her transportation, which she sent  money to her family each month to pay off her debt. Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id. at 415.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65]  David Baxter , Persecution Based on Persecution: How Gao v. Gonzales Broadens the Interpretation of Asylum Law, 30 N.C. Cent. L. Rev. 97, 103 (2007) citing In re Kasinga , 21 I. & N. Dec. 357, 362 (B.I.A. 1996).

[66] In re Kasinga , 21 I. & N. Dec. 357, 358 (B.I.A. 1996). The applicant is a 19-year-old native citizen of Togo. Id. She is a member of the Tchamba-Kunsuntu Tribe. Id. Young women of her tribe normally undergo FEMALE GENITAL MUTILATION at age 15. Id. However, she was initially was protected from FEMALE GENITAL MUTILATION by her influential father who had recently passed away. Id. at 359. The applicant stated that after her father’s death in 1993, her aunt, her father’s sister, became the primary authority figure in the family. Id. The applicant’s mother was driven from her home, and went to live with her family in Benin. Id. Kasinga did not know her mother’s exact whereabouts at the time of her hearing. Id. Kasinga was forced by her aunt into a polygamous marriage in October 1994, at the age of 17. Id. Her husband was 45 years old and had three other wives at the time she entered the marriage. Id.  Under traditional custom, her aunt and her husband planned to force her to submit to FEMALE GENITAL MUTILATION before the marriage was consummated. Id.  Due to her fear of “imminent mutilation” she fled Togo for Ghana, with help from her older sister. Id. Ghana was not a safe have for her, because she was afraid that her aunt and her husband would find her. Id. Kasinga’s mother sent her money, and she traveled to Germany by airplane. Id. Upon arrival in Germany, she “spent several hours wandering around the airport looking for fellow Africans who might help her.” Id. Finally, she began talking with a German woman. Id. After hearing Kasinga’s story, the woman offered her a temporary place to stay in her home until the applicant decided what her next move was. Id. For approximately two months, Kasinga slept in the woman’s living room and to earn her keep she performe household chores like cooking and cleaning duties. Id. Kasinga then met a young Nigerian man who offered to sell the Kasinga his sister’s British passport so that she could go to the United States, where she had an aunt, an uncle, and a cousin. Id. Fortunately, Kasinga immediately requested asylum as soon as she arrived in Newark Airport. Id. She was detained by the Immigration and Naturalization Service until April 1996. Id.

[67] Baxter, supra note 65 at 103.

[68] Id. citing In re Kasinga at 357.

[69] Id.

[70] Id.

[71] Id.

[72] Id. at 104.

[73] Id. at 105.

[74] Sarah Siddiqui, Membership in a Particular Social Group: All Approaches Open Doors for Women to Qualify, 52 Ariz. L. Rev. 505, 527 (2010). See In re R—A—, 22 I. & N. Dec. 906 (B.I.A. 1999). R—A— The respondent is a native of Guatemala. Id. at 908  She was married at age 16 to her husband  who was then 21 years old. Id. Her husband lives in Guatemala with the couple’s children. Id.  From the beginning of the marriage, her husband was physically and sexually abusive toward R—A—. Id. He insisted that R—A— must accompany him wherever he went, except when he was working. Id. His instances of threatening and or scaring her included him telling stories of having killed babies and the elderly. Id. In addition, her husband was a drunk who liked to physically abuse her while drinking. Id. R—A— had a list of injuries that she suffered at the hands of her husband such as: a dislocated jaw bone , violent kicks in her spine, a sexually transmitted disease, bruises and deep cuts. Id. She was often raped and beaten before and after each rape. Id.  In December 1994, the respondent tried to flee with her children but her husband found her. Id.. When she awoke, he kicked her and dragged her by her hair into another room and beat her to unconsciousness. Id. One night, after being tired of fighting, R—-A—attempted to commit suicide. Id. Her husband told her, “If you want to die, go ahead. But from here, you are not going to leave.” Id.When she tried to escape again, her husband  always found her or she returned to him. Id. at 909. R—A— went to the Guatemalan police but they did nothing to aid in her protection. Id. On three occasions, the police issued summons for her husband to appear, but he ignored them, and the police did not take further action. Id. Twice, she called the police, but they never responded. Id. When she appeared before a judge, he told her that he would not interfere in domestic disputes. Id. With help, she was able to flee Guatemala. Id. After staying in the States for a period of time, R—A— was informed by her sister that her husband  was  threatening to “hunt her down and kill her if she ever came back to Guatemala.” Id.  R—A— was then able to successfully claim asylum based on the aforementioned facts. Id at. 946.

[75] Id.

[76] Id. at 528.

[77] Id.

[78] Id., citing Niang v. Gonzales, 422 F. 3d 1187, 1199-1200 (10th Cir. 2005). Awa Niang is a victim of female genital mutilation . Id. at 1190.  She faces deportation from the United States because she overstayed her nonimmigrant visa, was working in the United States without permission of the Immigration and Naturalization Service (INS), and had fradulently represented herself as a citizen to work in the United States. Id. at 1191.  She claimed asylum and restriction on removal on the ground that she had suffered FEMALE GENITAL MUTILATION. Id. She also claimed under the Convention Against Torture (CAT) on the ground that she was likely to be tortured if returned to her home country. Id. When Niang was 25, her family decided that  she must consummate her marriage  with Daud  her husband since she was 12 years old. Id. at 1192.  She refused, and her family then performed FEMALE GENITAL MUTILATION on her “so that [she] wouldn’t be able to commit adultery and so that no one would want to have anything to do with [her]. And then she would be ashamed to show [her] body in front of another man.” Id. She fled from her family’s house in Senegal and eventually moved to the United States. Id. She eventually married, but was told through a letter that if she ever returned to Senegal she would be considered an adultress, and she would be killed upon arrival. Id. She was later granted asylum. Id. at 1202.

[79] Karen Musalo, Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action?,  14 Va. J. Soc. Pol’y & L. 119, 119-20 (2007).

[80] Id. at 133.

[81] Id.

[82] Id.

[83] Id.

[84] Id.

[85] Id.

[86] follow Citizens hyperlink; then follow Law and Order hyperlink; then follow Justice & Law hyperlink; then follow Personal Law hyperlink).

[87] Id.

[88] Dr. Justice AR. Lakshmanan, Laws of Civil Marriages in India – A Proposal to Resolve Certain Conflicts, LAW COMMISSION OF INDIA, October 17, 2009,   

[89] The Hindu Marriage Act, 25, Acts of Parliament, 1955.

[90] Lackshamanan, supra note 88.

[91] Id.

[92] Id.

[93] Id.

[94] Id.

[95] Id.

[96] Id.

[97] in, supra note 86. (The Child Marriage Restraint Act, 1929, from 1 October 1978, provides that marriage age for males will be 21 years and for females 18 years.)

[98] Subash Mohapatra, Child Marriages Persist in Rural India, Asian Tribune, Aug. 29, 2006,

[99] Lackshamanan, supra note 88.

[100] Id.

[101] Id.

[102] Id.

[103] Id.

[104] Id.

[105] Id.

[106] Id.

[107]Id., See The Hindu Marriage Act, 25, Acts of Parliament, 1955.  (Definition of Sapinda.) (“sapinda  relationship”  with  reference  to   any person extends as far as the third generation (inclusive)  in  the  line  of  ascent  through  the  mother,  and  the  fifth (inclusive)  in  the line of ascent through the  father,  the  line  being  traced  upwards in each  case  from  the  person concerned, who is to be counted as the first generation; (ii)  two persons are said to be “sapindas” of each other  if  one  is a lineal ascendant of the other within the limits of  sapinda  relationship,  or  if  they  have  a  common  lineal ascendant  who is within the limits of  sapinda  relationship with reference to each of them.)

[108] Mohapatra, supra note 98.

[109] Id.

[110] Id.

[111] Id.

[112] Siddiqui, supra note 74, at 530.

[113] Id. at 531.

[114] Id.

[115] Id.

[116] Id.

[117] Gao, supra note 43 at 64.

[118] Baxter, supra note 65 at 104.

[119] Seelinger, supra note 6 at  61.

[120] Mohapatra, supra note 98.

[121] Id.

[122] Id.

[123] Baxter, supra note 65at 104-5.

[124] Siddiqui, supra note 74 at 532

[125] Id.

[126] Id.


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