Ms. Kaur Writes a Great Paper on Forced Marriage

Ms. Kierandeep Kaur, a student in my Refugee Seminar this past semester wrote a great paper on forced marriage. She has given Professor Birdsong to share it with a wider world of reader on his blog.

Read and learn …

Saying “I do,” but Meaning “I don’t”

Forced Marriage: A Silent Cry for Help

Kierandeep Kaur © 2014


  1. I.                INTRODUCTION

Forced marriage occurs throughout the world. Both women and men can experience a forced marriage, but it disproportionately affects women.[1] Forced marriage is not to be confused with arranged marriage, but in most cases, it is very hard to identify which type it is. To picture these types of marriages on a spectrum, (with arranged marriage at one end and forced marriage at the other), decreasing degrees of consent lead closer and closer to the “forced marriage” end of the spectrum.[2]

In traditional arranged marriages, the families of both spouses generally take a leading role in facilitating or arranging the marriage.[3] The parents oversee the marriage process but the future spouses’ consent is still determinative; therefore it is closer to the “arranged marriage” side of the spectrum.[4] However, as the amount of input parents accept from the future spouse and the degree to which the parents allow the future spouse to make the decision decreases, the pressure to marry a certain individual rises closer and closer to the level of duress. The marriage then moves along the spectrum from “arranged” to “forced.”[5] Because of this fluidity, it is hard to truly distinguish the marriage, since most may appear to be “arranged” at first glance, but then turn out to be “forced.” Also, is “force” actually needed or is lack of consent sufficient?

From a historical legal perspective, courts have refused to engage with how societal and familial pressures could effect a person’s opportunity to freely consent to marriage and refused to invalidate “an otherwise good marriage unless there was a threat of immediate danger . . . to life, limb or liberty.”[6]

Some women attempt to escape their marriage by fleeing their country and seek asylum under refugee status. Although there have been recent charity and government responses to the problem of forced marriage in some countries, there are still others that have not taken any steps to help their citizens who are faced with this specific issue. In the refugee law context, the issue of female asylum seekers fleeing their countries because of forced marriage has not received the attention it needs. The only two United States published court decisions addressing whether a forced marriage itself constitutes persecution, were vacated on procedural grounds. Therefore, there is currently no precedent regarding forced marriage as a claim in itself as persecution for asylum, even though forced marriage is declared a violation of human rights.

There needs to be awareness of forced marriage. While courts that have been faced with the issue briefly discuss it, forced marriage is usually masked by the courts by instead focusing on other component harms within the forced marriage, such as sexual offenses and other physical and emotional abuses. With awareness and discussion of the issue of forced marriage, courts will be able to understand that forced marriage is not just a domestic violence, cultural, or “family” problem. Women fleeing their countries as refugees should be able to seek asylum because of forced marriage. Forced marriage should be considered persecution in and of itself.

This paper will discuss the difficulty in identifying forced marriage; examine the current jurisprudence in the United States regarding forced marriage; and explore different countries’ responses to forced marriage. Looking at forced marriage from different international perspectives reinforces the proposition that forced marriage should be considered persecution in and of itself for individuals seeking asylum in the United States.


The Refugee Act of 1980 “established a new statutory procedure for granting asylum to refugees.”[7] Congress’s purpose for the Refugee Act was “to further the United States’ history of ‘responding 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.’”[8] The Act that was passed on March 17, 1980 amended the Immigration and Nationality Act and the Migration and Refugee Assistance Act of 1962.[9] The amendment included a definition of “refugee:”

A refugee is defined as a person “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, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . ”[10] A person who establishes a refugee status may seek asylum. The term “asylum” “is a subset of refugee protection, available to persons who have physically entered the country where they seek protection and wish to stay.”[11]

A person seeking asylum must satisfy four elements: (1) “the alien must have a ‘fear’ of ‘persecution’; (2) the fear must be ‘well founded’; (3) the persecution feared must be ‘on account of race, religion, nationality, membership in a particular social group, or political opinion’; and (4) 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.”[12]

A person may qualify for refugee status by demonstrating that he or she has suffered past persecution or that there is a well-founded fear of future persecution.[13] To establish future persecution, the applicant must show that he or she “subjectively fears persecution” and that the “fear is objectively reasonable.”[14] Once the applicant establishes that he or she is a refugee, the Attorney General has discretion to decide whether to grant asylum.[15] The applicant may also claim for withholding of removal, which requires a higher standard of proof.[16] If the applicant establishes that “it is more likely than not that his ‘life or freedom would be threatened in the country because of his race, religion, nationality, membership in a particular social group, or political opinion,’ the Attorney General must grant withholding of removal.”[17] Applicants excluded from asylum may also be eligible for relief under the Convention Against Torture[18] if they can show that “they are more likely than not to be tortured in their countries of origin, regardless of connection to a protected ground.”[19]

The term “persecution” is not defined by statute or regulation, but the Board of Immigration Appeals (“BIA”) has defined persecution as “harm or suffering that is inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome.”[20]

“Persecution on account of membership in a particular social group” will be the focus in this paper. Women who suffer persecution from domestic abuse of other traditional, culturally approved practices usually do not qualify under any of the categories except the “particular social group” category.[21]

It is the least clearly defined ground for eligibility as a refugee. This type of persecution refers to persecution “that is directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic, i.e., a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.”[22] The shared characteristic may “be an innate one such as sex, color, or kinship ties,” but is determined on a case-by-case basis.[23]

Qualifying under “particular social group” has been difficult for many female asylum seekers because both courts and the Department of Homeland Security (“DHS”) “have been reluctant to recognize such a broad-based claim.”[24] There has also been an ongoing debate about the definition of a “particular social group,” and whether women can seek asylum under this category for gender-motivated abuses.

  1. III.            FORCED MARRIAGE

Article 16, Section 2 of the Universal Declaration of Human Rights states that “marriage shall be entered into only with the free and full consent of the intending spouses.”[25] The right to marry is a fundamental human right. Forced marriage is a violation of that human right.

  1. A.     Difficulty in Identifying Forced Marriages

While the terms “forced marriage” and “arranged marriage” are defined in various documents to be distinct from one another, in reality, they may overlap and become difficult to distinguish. A forced marriage is described as one in which “one or both spouses do not consent to the marriage or consent is extracted under duress. Duress includes both physical and emotional pressure.”[26]

An arranged marriage involves “the families of both spouses taking a leading role in choosing the marriage partner but the choice of whether or not to accept the arrangement remains with the potential spouses. They give their full and free consent.”[27] Arranged marriages are a tradition in many cultures and represent a union of two families. Many of these arranged marriages are “often entered into willingly, even in situations where the girl might not have reached eighteen years of age.”[28] In traditional arranged marriages, “parents and even extended family members search for prospective marriage candidates and make an ultimate decision on behalf of the adult children.”[29] (Presumably, with the potential spouses’ consent). In reality, the bride did not really have a choice and was viewed as property; “the only choice is how hard they’d work to be happy.”[30]

There are also “contemporary arranged marriages” which are more prevalent today.[31] This is also known as “semi-arranged” or “arranged introduction marriage.”[32] This “involves parents finding prospective mates for their adult children and then consulting their children in the decision-making process,” and giving the potential spouses the “power to reject a potential marriage.”[33]

The United States DHS views a forced marriage as one that is “arranged and enforced against the victim’s wishes.”[34] Whichever definition, the essential characteristics that distinguish a forced marriage from an arranged one is the lack of meaningful consent – (and/or duress) – by one or both of the parties (usually the bride). The DHS provides factors to consider in determining whether a marriage was forced (or whether a potential marriage would be forced): “the type and level of coercion to which an applicant was or would be subjected, the applicant’s ability to avoid the marriage at all, and the nature of the consequences for the applicant if she were to refuse to submit to the marriage.”[35]

Forced marriage is more than a violation of the fundamental right of a consensual marriage. It is often accompanied by other forms of harm such as sexual assault, domestic violence, false imprisonment, estrangement from their family, and physical and emotional abuse. There are also harmful cultural traditions related to marriage that women seeking asylum suffer: Female Genital Mutilation[36] (“FGM”) is prevalent in Africa; dowry[37] occurs mainly in Asia; and throughout the world, honor killings occur.[38]

These problems are often hidden and effective government protection is not always available. Women who have been forced to marry and/or who are subjected to these injuries “may find it difficult to seek help because of social stigma, family pressure, financial constraints, fears of violence or deportation, lack of legal information about their options and/or concern about their children.[39]

Because of the difficulty of coming forward, “reliable statistics about the number of people facing forced marriage worldwide do not exist.[40] Another complication in identifying and addressing forced marriage is that “forced marriage has many different manifestations and, while forced marriage can occur in a range of settings, it is usually organized by family members.[41] These family members may not perceive their actions as wrong for a number of reasons: some may wish to control behavior that challenges cultural norms or prevent unsuitable marriages; while others may want to protect “family honor” and conform to perceived cultural and gendered ideas about marriage.[42]

  1. B.     Forced Marriage As a Claim for Asylum

Since forced marriage is a violation of a fundamental human right, that violation should be seen as persecution in and of itself. Courts in “France, Australia, Canada, New Zealand, and the United Kingdom have acknowledged forced marriage as a violation of human rights sufficient to constitute persecution under the 1951 Convention and its 1967 Protocol.”[43]

The United States however, “has been slower to acknowledge the deprivation of consent in marriage as persecution.”[44] Because “persecution” is interpreted as “the infliction of suffering or harm upon those who differ in a way regarded as offensive,”[45] asylum adjudicators have focused on component harms to constitute persecution. Courts have found physical harms ranging from beatings to rape to constitute persecution.[46]

Courts have also deemed non-physical harm such as verbal abuse, death threats, isolation, and deliberate, severe economic disadvantage to constitute persecution.[47] Courts focus on these “component harms” in asylum claims based on forced marriages, instead of focusing on the forced marriage itself.[48] Because of the wrong focus, only applicants who suffered or feared component harms could be found eligible for asylum.[49] Yet, as mentioned, the DHS recognizes forced marriage itself as a possible form of persecution, and “[t]he key question in determining whether a forced marriage might constitute persecution is whether the victim experienced or would experience the marriage, or even surrounding the marriage, as serious harm.” Yet, this question is not addressed in courts dealing with forced marriage.[50]

Despite “clear articulations that forced marriage can constitute persecution if it results in – or is accompanied by – ‘serious harm,’ recognition of forced marriage as persecution in itself has been slow to emerge among U.S. adjudicators.”[51]

  1. C.     Background on United States Forced Marriage Jurisprudence

It is important to note that there have been successful forced marriage claims for asylum, but those are unpublished decisions. The United States is yet to publish a decision discussing forced marriage in depth.

In 2008, In the Matter of S – F –, the BIA recognized forced marriage as a basis for asylum. It reversed the Immigration Judge’s (“IJ”) denial of asylum to a Senegalese woman who feared forced marriage and abuse by her father because she resisted the marriage he had arranged for her.[52]

In another case in 2011, a 28 year old woman from Gujarat, India resisting her forced marriage fled to United States was successfully granted asylum.[53]

1. Gao v. Gonzales

Gao v. Gonzales was a landmark federal case to directly address forced marriage until it was vacated on procedural grounds by the Supreme Court in 2007. The applicant in this case (Gao) was a twenty year old Chinese woman who fled China because of a forced marriage to a man from which her parents had accepted payment for the marriage.[54] She lived in an area where parents routinely sell their daughters into marriage, although this practice is sanctioned by society and local authorities.[55] Gao’s parents received payment in exchange for a promise that Gao would marry a man (Zhi) when she turned twenty-one. (She was nineteen at the time).[56] At first, Gao acquiesced in the arrangement under pressure from her parents; but when Zhi proved to be bad-tempered, gambled, and beat her when she refused to give him money, she decided she did not want to marry him.[57] When Gao tried to break their engagement, Zhi threatened her with his uncle’s local official status and said his uncle would arrest her.[58] Gao was afraid but she escaped by boat to move an hour away from where she lived.[59] Zhi visited Gao’s parents and demanded that Gao marry him, and when her parents refused to tell him where she was, he vandalized their home.[60] Zhi eventually discovered where Gao had moved, so about six months later, Gao fled to the United States out of fear that if she stayed in China, she would be forced to marry Zhi.[61] Even after Gao’s departure, her parents were continuously harassed, causing them to move repeatedly.[62]

The IJ in Gao’s case found that Gao “did not have a well-founded fear of forced marriage and in finding that a forced marriage, even were it to occur, would not constitute persecution under paragraph 1101(a)(42) of Title 8 of the United States Code, which sets forth the grounds for establishing asylum eligibility.”[63] The IJ stated that Gao’s predicament was “simply ‘a dispute between two families,” and the record did not establish that the government would not protect her from Zhi.[64] The IJ explained that Zhi’s anger was caused by Gao’s mother violating the oral marriage contract that she had with him.[65] Further, the IJ found that because Gao “was able to relocate safely to another city, she did not need asylum in the United States.”

That decision was appealed to the BIA.[66] However, the BIA affirmed the IJ’s denial of her claims of asylum, withholding of removal, and protection under CAT.[67]

Gao then petitioned for a review of the BIA’s decision to the United States Court of Appeals for the Second Circuit. The court discussed the first issue (whether Gao established that she might be forced into marriage “on account of … membership in a particular social group” and found that the IJ “failed to apply the correct definition of the ‘particular social group’ ground.”[68] The court discussed how the term “particular social group” is “broad enough to encompass groups whose main shared trait is a common one, such as gender, at least so long as the group shares a further characteristic that is identifiable to would-be persecutors and is immutable or fundamental.”[69] The court stated that “Gao’s social group consists of women who have been sold into marriage (whether or not that marriage has yet taken place) and who live in a part of China where forced marriages are considered valid and enforceable.”[70] Gao established that “she might well be persecuted in China in the form of lifelong, involuntary marriage, ‘on account of’ her membership in this group.”[71] The Second Circuit held that Gao established a nexus between the persecution she fears and the “particular social group” to which she belongs.

The second issue the Second Circuit addressed was, “whether the IJ had a substantial basis for finding insufficient evidence that the Chinese authorities would not protect Gao.”[72] The court held that the IJ based its decision on “factual conclusions reached without substantial evidence.[73] The IJ only based its opinion on a County Report stating that trafficking in women for marriage and prostitution was widespread “and that official efforts to combat the problem have been hampered by corruption and by active resistance by village leaders.”[74] The IJ also stated that Gao’s contention that she would not be protected by the government was “speculative.”[75] The Second Circuit instead found that this evidence, taken together with Gao’s arrest threats, and with “the lack of evidence that the local officials in Gao’s village would protect her, Gao’s contention was not the least bit speculative.”[76]

The last issue the Second Circuit addressed was, “whether the IJ has a substantial basis for finding that Gao could safely relocate within China.”[77] The court stated that the IJ’s finding that Gao could safely relocate was “contradicted by the record.”[78] Gao would not able to relocate safely because of the fact that even after moving an hour away, Gao’s parents were harassed and their house was vandalized.[79]

The Second Circuit concluded by granting the petition for review, and vacating the BIA’s decision. The case was also remanded to the BIA for further proceedings (to consider Gao’s application for protection against torture, under CAT).[80]

The Second Circuit’s decision addressed the entry into marriage without consent, and not merely on the presence of component harms. However, the United States Supreme Court vacated the decision in 2007, finding that, per Gonzales v. Thomas,[81] the Second Circuit Court should have remanded the issue of whether Gao was persecuted on account of her membership in a particular social group back to the DHS, since the agency had not yet made this determination in the first instance.[82]

While the United States court system finally addressed forced marriage, it is still slow to take remedial effect.

2. Matter of A – T –

The only other published United States case to directly address forced marriage itself as a form of persecution was Matter of A– T –.[83] The applicant in this case was a 28 year old native and citizen of Mali who applied for asylum in 2004, although she was admitted into the United States as a visitor in 2000.[84] She underwent FGM when she was a young girl, and although she could not remember it, she opposed the procedure.[85] Her father arranged for her to marry her first cousin and she feared the consequences if she were to refuse to comply with her family’s wishes.[86]

The IJ determined that she failed to file her asylum application within one year of arriving in the United States, as required by section 208(a)(2)(B) of the Immigration and Nationality Act, and failed to demonstrate eligibility for an exception based on changed circumstances.[87] The IJ then considered her withholding of removal and protection under CAT claims, since she did not meet the asylum claim.[88] However, those claims were not met either.[89] She then appealed to the BIA.

She argued to the BIA “that her past experience with FGM constitutes a continuing harm that renders her eligible for asylum . . . [and] she has a well-founded fear of persecution if she returns to Mali because she may someday give birth to a daughter who will also be subjected to FGM.”[90] She also had fear that her family would force her to enter into an arranged marriage with her first cousin.[91] The BIA ultimately agreed with the IJ and also denied her claims. The BIA discussed how “an arranged marriage between adults is not generally considered per se persecution.”[92] The BIA empathized with her by stating that [i]t is understandable that the respondent, an educated young woman, would prefer to choose her own spouse rather than acquiesce to pressure from her family to marry someone she does not love and with whom she expects to be unhappy.”[93]           However, the BIA found that she did not present sufficient evidence regarding the consequences she might face if she refused to marry her intended husband.[94] A letter from her father submitted to the BIA stated that “she must proceed with the marriage ‘to uphold the reputation of our family;’” but the BIA determined that there was “no indication of possible consequences for failing to comply with the arrangement.”[95] She further testified that women who are shunned by their families are not able to “relocate elsewhere in Mali because single women living alone are viewed as prostitutes; but the BIA still disagreed.”[96] The applicant suggested that she belongs to the particular social group of young female members of the Bambara tribe who oppose arranged marriage.[97] The BIA responded by stating, “even accepting the respondent’s status as a member of such a group, we conclude that she has failed to demonstrate a clear probability that she would be persecuted on that basis. Rather, the respondent has expressed only a generalized fear of disobeying her authoritarian father.”[98] Her appeal was then dismissed.

In 2008, Attorney General Mukasey vacated the decision and remanded the record for reconsideration of questions relating to the respondent’s eligibility for withholding of removal based on her claim that she has been subject to FGM.[99] In 2009, her arranged marriage issue was briefly discussed. The BIA again stated that “there was no indication that the arrangement would result in a disadvantaged position for the respondent because of the age or economic status of her spouse [, or that she would face] consequences if she refused the arrangement.”[100] The BIA then focused more on her FGM claim and her forced marriage claim was essentially dismissed.

There is still hope for asylum claims based on forced marriage after Matter of A – T – because the BIA did not expressly reject a forced marriage claim. Instead, the BIA found that the applicant did not present sufficient evidence to show she would be persecuted. However, forced marriage should still be persecution in itself, because what if no violence or threat of violence takes place, just as in this case? It makes it more difficult for the applicant to seek asylum. Do we wait for the emotional or physical abuse to take place?

3. Other Cases

Other federal cases which involve forced marriage in some way have illustrated the challenges posed by asylum-seekers facing forced marriage.[101] Most cases have neglected the forced marriage claim and instead focused on component harms. But what if there are not any component harms? The marriage is still forced. These claims based “solely on forced entry into marriage have suffered challenges with both establishment of persecution and proving nexus to a protected ground.”[102]

In Lan Zhu Pan v. Gonzales, the applicant for asylum (Lan Zhu Pan) is a citizen of China.[103] Her father was in debt due to embezzlement in his business by an employee.[104] In 1999, A wealthy man offered to pay his debts if he could marry Lan Zhu Pan’s older sister.[105] The father agreed, but when Pan’s sister (who was 19 years younger than the man) found out, she refused and ran away from home.[106] A month later, the father attempted to get the same deal, but Pan would substitute since his other daughter ran away.[107] The father took Pan to a hotel and told her that Pan’s sister was waiting there for her.[108] When she entered the room, she was grabbed by the wealthy man.[109] Pan resisted and was able to escape and she went into hiding.[110] In 2002, Pan left China for the United States and applied for asylum and withholding of removal.[111]

The IJ denied her “claims because she had failed to establish that she belonged to a particular social group.”[112] On appeal, the BIA agreed that “young women from rural China” was too broad to be considered a “particular social group.”[113] The BIA further stated that “[e]ven assuming the more narrowly defined category of ‘unmarried young women from rural China…who have resisted being forced into marriages and sexual relationships by a person in power’ could be a valid social group, . . . petitioner had failed on the evidence to establish that such women are targets of persecution in China.”[114] The BIA “therefore concluded that petitioner had failed to establish a well-founded fear of persecution in China on account of her membership in a particular social group.”[115] Pan then appealed to the United States Court of Appeals for the First Circuit. The court agreed with the BIA. It stated that Pan’s only evidence of persecution was her father’s attempt to sell her and her sister into an arranged marriage, and they both successfully resisted and escaped.[116] There was no evidence of persecution following their escape, and Pan was never punished or persecuted because of her resistance.[117] Nor did Pan present “evidence establishing that other young unmarried women from rural China who have similarly resisted forced sexual relationships have been persecuted on that basis.”[118] Her petition for review was denied.

In Matter of Kasinga, the applicant was faced with a forced marriage, but the court focused on her FGM claim and the forced marriage issue was not directly addressed.[119]

The BIA has seen many claims dealing with forced marriage, but they are dismissed and not discussed in detail. With the courts’ acknowledgement in recent cases, the question of whether forced marriage constitutes persecution is still an open issue.[120]


A lot of applicants’ home countries have laws aimed at protecting women from rape, domestic violence, and forced marriage. Even though “the existence of such laws may indicate government willingness to protect the rights of women, it is a poor indicator of the government’s ability to do so.”[121] When it comes to forced marriage, the individuals facing them find it hard to come forward because of the social stigma, pressure, and potential fear of violence. There are some countries that have taken different approaches to forced marriage:

  1. A.     Special Court for Sierra Leone: Criminalizing Forced Marriage

In 2005, The Special Court for Sierra Leone decided a landmark case (Prosecutor v. Brima, Kamara, & Kanu) that recognized forced marriage as an international crime against humanity.[122] In 1991, war broke out in Sierra Leone (in West Africa) when a rebel group entered the country from Liberia; it lasted until 2002.[123] During this war, many women and girls were captured or abducted to be forced as “wives” (referred to as “bush wives”) for the male combatants and would do as the “husbands” wished.[124] These “bush wives” were forced to cook and clean, and were frequently subjected to sexual violence.[125]

In 2005, three men who engaged in these violent acts were prosecuted. Forced marriage was recognized as an international crime for the first time when the Special Court allowed the prosecutor to amend the indictment to add a charge of forced marriage as a crime against humanity.[126] The Trial Chamber amended the “indictment to add forced marriage as an inhumane act, the residual category of acts that constitute crimes against humanity in the” statute.[127] Other courts that dealt with forced marriage charged the act as rape rather than a separate offense.[128] The prosecutor in this case however, attempted to expand international jurisprudence by bringing a new charge of forced marriage.[129] The prosecutor submitted this definition of forced marriage to the Trial Chamber: “words or other conduct intended to confer a status of marriage by force or threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against the victim, or by taking advantage of a coercive environment, with the intention of conferring the status of marriage.”[130] The Trial Chamber ultimately “found that forced marriage was subsumed in sexual slavery” and that there was “no lacuna in the law which would necessitate a separate crime of ‘forced marriage’ and an ‘other inhumane act.’”[131]

The Appeals Chamber reversed the Trial Chamber decision because “forced marriage was not subsumed in sexual slavery but formed a distinct inhumane act of sufficient gravity to be considered a crime against humanity.”[132] Two distinctions between forced marriage and sexual slavery were made. The Appeals Chamber stated that “these distinctions meant forced marriage was not predominantly a sexual offense and could not therefore be subsumed in sexual slavery.[133]

The first distinction was “the exclusivity of the relationship in the ‘forced marriage.’”[134] The Appeals Chamber explained that, “unlike sexual slavery, forced marriage implies a relationship of exclusivity between the ‘husband’ and ‘wife’ which could lead to disciplinary consequences for breach of this exclusive arrangement.”[135] The Appeals Chamber was referring “to the fact that a woman ‘married’ to a rebel would be in a predominantly exclusive sexual relationship with her ‘husband,’ whereas a woman taken by rebels” would be available to any rebel in sexual slavery.[136]

The second distinction was, “the ‘conjugal association’ which went beyond forced sexual contact and encompassed other conjugal duties.”[137] The Appeals Chamber explained that other “conjugal duties” that were reciprocal, included “forced domestic labor (cleaning and cooking), child rearing, and pregnancy.”[138]

The Special Court for Sierra Leone addressed forced marriage as a separate crime. It was a significant decision because it demonstrated how “prosecuting forced marriage separately from other forms of sexual violence keeps it from being distorted into a crime of sexual violence against women.”[139] It is also important because the “perpetrator of violence within the marriage is not necessarily the person responsible for the forced marriage.”[140] The parents are usually the ones who force the marriage.

  1. B.     Other Countries Criminalizing Forced Marriage

1. Scotland

On January 22, 2014, the Scottish Parliament announced that forced marriage is now a criminal offense in Scotland with a jail term of up to seven years.[141] Shona Robison, from Minister for Equalities, who spoke at the debate to criminalize forced marriage, stated that “[f]orcing someone to marry against their will is an abuse of their human rights. It disenfranchises victims by removing from them the opportunities which should rightly be available to all.”[142] Further, criminalizing “forced marriage sends the strongest possible message that we will not tolerate this behavior in Scotland. That is a message that I want potential perpetrators to hear loud and clear, as well as victims. I would hope that the knowledge that perpetrators would be risking seven years in prison would act as a deterrent, in at least some cases.”[143]

2. England, Wales, and Northern Ireland

As of 2008, courts in England, Wales, and Northern Ireland are able to issue civil orders under the Forced Marriage Act of 2007[144] to prevent forced marriage or protect victims. In June of 2012, Prime Minister of the United Kingdom, David Cameron, proposed legislation that would make forced marriage a crime like it is in Scotland.[145]

There has also been opposition to criminalizing forced marriage. Opponents argue that criminalizing forced marriage could deter victims from coming forward. One United Kingdom forced marriage survivor and councilwoman, Sameen Ali, stated that “[v]ictims are going to feel guilty about prosecuting their parents.”[146] Ali feels that “criminalizing forced marriage will only silence victims, shatter families, and divide ethnic communities.”[147] She further stated, “I did not want any harm done to my mother or to by brother who forced me into this marriage… I just wanted them to leave me alone.”[148] Opponents “believe that existing criminal laws are sufficient to prosecute ancillary crimes sometimes committed in the course of forcing a person to marry, such as threats, violence, harassment, false imprisonment, and abduction.”[149] The Forced Marriage Protection Orders are also deemed sufficient by opponents because the Protection Orders “protect and empower victims without discouraging reporting.”[150]

3. The Forced Marriage Unit

The Forced Marriage Unit (“FMU”) was created in the United Kingdom in 2005 and is dedicated to “preventing British nationals [from] being forced into marriages overseas and to assisting anyone in the U.K. … faced with the prospect of being forced into a marriage.”[151] The FMU gives advice and support to around 1,500 people every year.[152] The FMU helps with a variety of services, including assistance with Forced Marriage Protection Orders, refuge and housing, getting a new identity, benefits and finances, ending marriages, visas, education and work, and health and childcare.[153]

4. Karma Nirvana

Karma Nirvana is a United Kingdom charity set up by Jasvinder Sanghera in 1993.[154] The charity supports victims and survivors of forced marriage and honor based abuse.[155] Jasvinder was 14 when she was forced to marry a man.[156] When she was 16, she ran away to escape the marriage.[157] By running away, she was disowned by her parents who said she had shamed them.[158] Two years later, Jasvinder’s older sister, who was 24 at the time, set herself on fire and committed suicide to escape her own abusive marriage.[159] Jasvinder has also written books about the issue of forced marriage and her own experiences.

  1. III.            CONCLUSION

While forced and arranged marriages may be hard to distinguish, there needs to be more discussion about them by immigration courts in the United States. The only published cases in the United States that involved forced marriages were not discussed enough. Component harms were the main focus (although they should not be ignored). In most cases, the component harms are a result of forced marriages.

Forced marriage is a global problem and the United States is behind in addressing this issue, despite the number of immigrants coming to this country. In fact, people in the United States face forced marriages.[160] The Tahirih Justice Center Survey on Forced Marriage in Immigrant Communities in the United States confirms (as of 2011), that in the United States today, there are “as many as 3,000 known and suspected cases [of forced marriages] identified by survey respondents in just the last two years.”[161]

The lack of United States jurisprudence and the growing acknowledgement in other countries regarding forced marriage demonstrates that the United States is behind. The United States acknowledges that a consensual marriage is a fundamental human right. The United States acknowledges that forced marriages often involve violence. The United States acknowledges that forced marriage can be a form of persecution. However, the United States immigration court system does not currently explicitly acknowledge and address that forced marriage is persecution for asylum purposes. Forced marriage has been found to be persecution in court systems in France, Australia, Canada, New Zealand, and the United Kingdom. Forced marriage has been considered a crime in itself in Sierra Leone, Scotland, and soon to be in the United Kingdom. The United States needs to address forced marriage and find that it constitutes persecution for asylum.

Because there is no statutory authority or guidance regarding forced marriage as persecution, there has been a lack of consistent precedent in the immigration court system. Applicants seeking asylum based on forced marriage usually fall under the persecution category of “particular social group.” As stated, this is the least clearly defined category. Because of the ambiguity, there has been a debate as to whether the definition of what constitutes “particular social group” should be expanded (to conclusively make gender a valid social group). The definition should be expanded because it would allow women to seek asylum based on forced marriage.

Opponents to expanding the definition argue that this will lose asylum law’s purpose and would allow anyone to gain asylum.[162] It is also argued that expanding the definition would inadvertently create “incentives for persons entering illegally to use the asylum system to delay deportation;” and, “the number of asylum seekers will further increase and the already under-functioning asylum system and will be unable to handle the increased overload.[163] While critics recognize the violation of human rights suffered by women seeking asylum based on forced marriage, they do not believe “that this persecution merits asylum protection in the United States.[164] Also, critics argue that asylum policy is not the “place to fight the battle” of “prevailing cultural norms – no matter how much we dislike them.”[165] Furthermore, critics “also question the legitimacy of the claims that would be filed in a system that allowed women to seek asylum based on persecution on account of their gender. The fear is that claims will be difficult if not impossible to verify, allowing women the opportunity to fraudulently gain asylum in the United States.”[166]

In support of expanding the definition, the potential increase in the number of asylum seekers is irrelevant because “asylum is an individualized remedy” and expansion of the “particular social group” category “would not make it broader than any of the other categories” such as race and nationality – categories that include millions of people.[167] Individuals seeking asylum is a case-by-case determination and as mentioned, must meet four requirements before asylum is granted. After establishing that an individual belongs to a “particular social group,” the additional requirements in the four prongs “ensure that the system is not abused.”[168] Overall, it is recognized that expanding the definition may lead to fraudulent admission of individuals: “‘it may be that we let some people in who don’t really qualify, but that’s better than turning away people who do.’”[169]

Forced marriage should be considered persecution in itself. Expanding the definition of “particular social group” to include gender would allow consideration of women seeking asylum based on forced marriage. This expansion would also allow for consideration of forced marriages without physical component harms, which has been the main focus in the court system. While courts are left to themselves to make decisions of what constitutes a “particular social group,” formally expanding the definition (such as through action by the DHS) would give a more consistent precedent for applicants seeking asylum because of forced marriage. There is inconsistency because there have been successful forced marriage claims that have been unpublished and the published cases have not been successful. Forced marriage is a form of “silent persecution;” and individuals faced with it emit a silent cry for help.












[1] Frances Simmons & Jennifer Burn, Without Consent: Forced Marriage in Australia, 36 Melb. U. L. Rev. 970, 975 (2013).

[2] Kim Thuy Seelinger, Forced Marriage and Asylum: Perceiving the Invisible Harm, 42 Colum. Hum. Rts. L. Rev. 55, 61 (2010).

[3] Id.

[4] Id.

[5] Id.

[6] Frances Simmons & Jennifer Burn, Without Consent: Forced Marriage in Australia, 36 Melb. U. L. Rev. 970, 974 (2013).

[7] INS v. Cardoza-Fonseca, 480 U.S. 421, 427, (1987).

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

[9] Id.

[10] 18 U.S.C. § 1101(a)(42).

[11] Kim Thuy Seelinger, Forced Marriage and Asylum: Perceiving the Invisible Harm, 42 Colum. Hum. Rts. L. Rev. 55, 66 (2010).

[12] Matter of Acosta, 19 I. & N. Dec. 211, 212 (1985).

[13] Ramasmerchire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

[14] Id.

[15] 8 U.S.C. § 1158(b)(1).

[16] Ramsameachire, 357 F.3d at 178.

[17] Id.

[18] See, Weissbrodt, et al., Defining Torture and Cruel, Inhuman, and Degrading Treatment, 29 Law & Ineq. 343, 353 (2011). The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture” or “CAT”), was adopted by the United Nations in 1984. It imposes specific obligations to prevent and enforce the prohibition against torture and cruel, inhuman, or degrading treatment.

[19] Kim Thuy Seelinger, Forced Marriage and Asylum: Perceiving the Invisible Harm, 42 Colum. Hum. Rts. L. Rev. 55, 57 (2010).

[20] Matter of Acosta, 19 I. & N. Dec. 211

[21] Cara, Goeller, Forced Marriage and the Granting of Asylum: A Reason to Hope After Gao v. Gonzales, 14 Wm. & Mary J. of Women & L. 173, 178 (2007).

[22] Matter of Acosta, 19 I. & N. Dec. 211

[23] Id at 233.

[24] Cara, Goeller, Forced Marriage and the Granting of Asylum: A Reason to Hope After Gao v. Gonzales, 14 Wm. & Mary J. of Women & L. 173, 178 (2007).

[25] See Article 16, Section 2 of the Universal Declaration of Human Rights, available at, documents/udhr/index.shtml#a16.

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

[27] Id.

[28] See United States Citizen and Immigration Services, Refugee, Asylum, and Int’l Operations Directorate (RAIO) Gender Related Claims Training Module, available at, Directorates%20and%20Program%20Offices/RAIO/Gender%20Related%20Claims%20LP%20%28RAIO%29.pdf.

[29] Prashina J. Gagoomal, A “Margin of Appreciation” for “Marriages of Appreciation”: Reconciling South Asian Adult Arranged Marriages with the Matrimonial Consent Requirement in International Human Rights Law, 97 Geo. L.J. 589, 592 (2009).

[30] Id.

[31] Id at 596.

[32] Id.

[33] Id.

[34] See United States Citizen and Immigration Services, Refugee, Asylum, and Int’l Operations Directorate (RAIO) Gender Related Claims Training Module, available at, Directorates%20and%20Program%20Offices/RAIO/Gender%20Related%20Claims%20LP%20%28RAIO%29.pdf.

[35] Id.

[36] See Alexi Nicole Wood, A Cultural Rite of Passage or a Form of Torture: Female Genital Mutilation from an International Law Perspective, 12 Hastings Women’s L.J. 347, 356 (2001). FGM is a cultural tradition recognizing a “girl’s passage into adulthood.” However, it can also be viewed as torture. FGM is usually performed by an old woman of the village using a sharp object, and removing part or all of the external female genitalia. It is rarely performed under sanitary conditions and any anesthetic is rarely used.

[37] See Anshu Nangia, The Tragedy of Bride Burning in India: How Should the Law Address it? 22 Brooklyn J. Int’l L. 637, 639 (1997). “‘Dowry’ is movable or immovable property that the bride’s father or guardian gives to the bridegroom, his parents, or his relatives as a condition of marriage, and under duress, coercion or pressure.” Insufficient dowries usually result in physical and emotional abuse of the daughter by the husband and in-laws. Id at 640. “Dowry” is frequently misconceived as a concept rooted in Hindu Law and as a custom that originated in custom times. The practice involved presents that the father of the bride would voluntarily give to the groom, and not as consideration for the marriage. However, marriage began to lose its sanctity and became commercially contractual. Id at 643. Hence, violence associated with dowry arose and the Dowry Prohibition Act of 1961 was eventually passed (law that prohibits dowry and the demand for dowry). Id at 652-653. However, it has been weak in its enforcement. Recently, an Indian woman named Preeti Dhaka committed suicide due to dowry related threats. Even a strong policewoman committed to protecting women from crimes fell weak from her dowry threats. (Most notably, Ms. Dhaka helped in the highly protested gang-rape case in India that occurred on December 16, 2012). On January 12, 2013, Ms. Dhaka’s body was discovered hanging by a scarf from a ceiling fan. The husband, his mother, and sister, were charged with harassing Ms. Dhaka into killing herself and inflicting cruelty on her. They are awaiting trial. See Tripti Lahiri & Preetika Rana, A Delhi Policewoman Finds Tradition Mightier Than the Badge, Enforcing Women’s Rights at Work, Cop Faces Age-Old Home Battlefront, The Wall Street Journal, Dec. 15, 2013,

[38] See Valarie Plant, Honor Killings and the Asylum Gender Gap, 15 J. Transnat’l L. & Pol’y 109, 111 (2005). “In many cultures, an individual’s identity is closely tied to their strong responses to actions of other family members that appear to bring dishonor on the family.” These strong responses sometimes lead to great family unit. In such a culture, the family’s honor is viewed as a personal reflection on each member of the family. As a result, family members may engage in violence, or “honor killings,” because the offended family members see that slaughter is the only solution to the taint on the family honor.

[39] Frances Simmons & Jennifer Burn, Without Consent: Forced Marriage in Australia, 36 Melb. U. L. Rev. 970, 975 (2013).

[40] Id.

[41] Id.

[42] Id.

[43] Kim Thuy Seelinger, Forced Marriage and Asylum: Perceiving the Invisible Harm, 42 Colum. Hum. Rts. L. Rev. 55, 68 (2010).

[44] Id.

[45] In re Acosta, 19 I. & N. Dec. at 222.

[46] Kim Thuy Seelinger, Forced Marriage and Asylum: Perceiving the Invisible Harm, 42 Colum. Hum. Rts. L. Rev. 55, 68 (2010).

[47] Id.

[48] Id at 69.

[49] Id.

[50] See Asylum Officer Basic Training, Female Asylum Applicants and Gender-Related Claims, available at

[51] Kim Thuy Seelinger, Forced Marriage and Asylum: Perceiving the Invisible Harm, 42 Colum. Hum. Rts. L. Rev. 55, 69 (2010).

[52] See Amicus Brief filed by Center for Justice and Refuge, available at, files/Matter_of_SF_CGRS_Amicus_08_2011_redacted_combined.pdf.

[53] See Decision and Order, available at,

[54] Gao v. Gonzales, 440 F.3d 62, 64 (2d Cir. 2006), (vacated on procedural grounds by Keisler v. Gao, 128 S. Ct. 345 (2007).

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id.

[61] Id.

[62] Id at 65.

[63] Id at 64.

[64] Id at 65.

[65] Id at 70.

[66] See Think Immigration Law Center, The Immigration System Overview, https:// www.immigrationuslaw .com/ immigration-system (last visited Mar. 7, 2014). A brief discussion of immigrations courts may be appropriate: the immigration court system in the United States is distinct from the regular court system. Immigration cases (such as deportation/removal and asylum cases) are presided by IJs, who are considered administrative judges. Persons who are found removable by an IJ have the right of appeal to the BIA. Cases from the BIA can be personally reviewed by the Attorney General and can be appealed to Federal Court.

[67] Id at 64.

[68] Id at 66.

[69] Id at 64.

[70] Id at 70.

[71] Id.

[72] Id at 66.

[73] Id at 64.

[74] Id at 71.

[75] Id.

[76] Id at 70.

[77] Id at 66.

[78] Id at 71.

[79] Id.

[80] Id.

[81] Gonzales v. Thomas, 126 U.S. 1613 (2006). The court held that the law entrusts the immigration agency to make the basis asylum eligibility decision. A judicial judgment cannot be made to do service for an administrative judgment. “A court of appeals ‘is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.’” (Quoting INS v. Ventura, 537 U.S. 12, 16 (2002).

[82] Keisler v. Gao, 552 U.S. 801 (2007).

[83] In re A – T –, 24 I&N Dec. 296 (BIA 2007), (vacated and remanded by 24 I&N Dec. 617 (A.G. 2008); remanded by 25 I&N Dec. 4 (BIA 2009).

[84] Id.

[85] Id.

[86] Id.

[87] See 8 C.F.R. s 1208(a)(4). An applicant has a one-year filing deadline to apply for asylum. An applicant may qualify for an exception to the deadline, but it is his or her burden to prove.

[88] In re A – T –, 24 I&N Dec. 296.

[89] Id.

[90] Id at 298.

[91] Id.

[92] Id.

[93] Id at 302.

[94] Id at 303.

[95] Id.

[96] Id.

[97] Id.

[98] Id.

[99] Matter of A – T –, 24 I&N Dec. 617, 623 (A.G. 2008).

[100] Id.

[101] Kim Thuy Seelinger, Forced Marriage and Asylum: Perceiving the Invisible Harm, 42 Colum. Hum. Rts. L. Rev. 55, 72 (2010).

[102] Id.

[103] Lan Zhu Pan v. Gonzales, 445 F.3d 60, 61 (1st Cir. 2006).

[104] Id.

[105] Id.

[106] Id.

[107] Id.

[108] Id.

[109] Id.

[110] Id.

[111] Id.

[112] Id at 62.

[113] Id.

[114] Id.

[115] Id.

[116] Id.

[117] Id.

[118] Id.

[119] Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996).

[120] See Ngengwe v. Mukasey, 543 F.3d 1029, 1036 (8th Cir. 2008).

[121] Kim Thuy Seelinger, Forced Marriage and Asylum: Perceiving the Invisible Harm, 42 Colum. Hum. Rts. L. Rev. 55, 106 (2010).

[122] See Rachel Slater, Gender Violence or Violence Against Women? The Treatment of Forced Marriage in the Special Court for Sierra Leone, 13 Melbroune J. of Int’l Law 732 (2012).

[123] Id at 736.

[124] Id.

[125] Id.

[126] See Bridgette A. Toy-Cronin, What is Forced Marriage? Towards a Definition of Forced Marriage As a Crime Against Humanity, 19 Colum. J. Gender & L. 539, 562 (2010).

[127] Id.

[128] Id at 563.

[129] Id.

[130] Id at 566.

[131] Id.

[132] Id at 567.

[133] Id.

[134] Id.

[135] Id at 568.

[136] Id.

[137] Id at 567.

[138] Id at 569.

[139] Id at 578.

[140] Id at 579.

[141] See Forced Marriage Crime Law Backed by Scottish Parliament, BBC News Scotland, Jan. 22, 2014,

[142] See The Scottish Government, Forced Marriage now Criminal Offence, Jan. 22, 2014,

[143] Id.

[144] See Part 4A of the Forced Marriage (Civil Protection) Act of 2007, available at, ukpga/2007/20/section/1 (last visited March 7, 2014).

[145] See Forced Marriage Parents Face Jail Under New Laws, BBC News UK, June 8, 2012,

[146] See Global Justice Initiative, Survivor Speaks out Against Criminalizing Forced Marriage, Global Justice Initiative Blog (July 15, 2012),

[147] Id.

[148] Id.

[149] Id.

[150] Id.

[151] See the FMU’s Forced Marriage A Survivors Handbook, available at, government/uploads/system/uploads/attachment_data/file/149854/FM_Survivors6.pdf.

[152] Id.

[153] Id.

[154] See Karma Nirvana, available at, (last visited March 7, 2014).

[155] Id.

[156] See Pride of Britain Awards, available at, winners/2009/jasvinder-sanghera.aspx (last visited March 6, 2014).

[157] Id.

[158] Id.

[159] Id.

[160] See The Tahirih Justice Center United States, available at, 2011/09/REPORT-Tahirih-Survey-on-Forced-Marriage-in-Immigrant-Communities-in-the-United-States-September-20115.pdf.

[161] Id.

[162] Cara Goeller, Forced Marriage and the Granting of Asylum: A Reason to Hope After Gao v. Gonzales, 14 Wm. & Mary J. Women & L. 173, 188 (2007).

[163] Id at 189.

[164] Id.

[165] Id.

[166] Id.

[167] Id at 190.

[168] Id at 191.

[169] Id.

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