Chinese Woman Seeks Asylum Over Forced Marriage

[yolland]

Does the prospect of arranged marriage and abuse warrant asylum in the US?

By Warren Richey
The Christian Science Monitor, March 23

WASHINGTON--When Hong Ying Gao arrived in the US from China in 2001, she pleaded with authorities for asylum, expressing fear that if deported, she'd face abuse and even torture. But what separates Ms. Gao's case from thousands of other asylum seekers is that her fear of abuse is not tied to iron-fisted tactics of the Chinese government. Rather, it stems from anticipated mistreatment at the hands of her future husband. At age 19, Gao was sold by her mother for the equivalent of $2200 to become the wife of a man in her home village who, Gao says, will physically abuse her. Instead of facing that prospect, she fled China.

Is Gao a legitimate refugee deserving US protection? Or should she be returned to China and a future husband who has already paid for her? An immigration judge said that Gao had no claim to asylum in the US. But an appeals court panel reversed that judgment, ruling that the woman had a valid fear of persecution and was entitled to remain in the US. Now, the Bush administration is asking the US Supreme Court to examine Gao's case. In a brief filed last Friday, US Solicitor General Paul Clement urges the high court to reverse the appeals court decision and send Gao back to China.

Mr. Clement says the decision by the Second US Circuit Court of Appeals in New York threatens to transform American asylum law into a worldwide haven for women trapped in potentially abusive relationships after being sold into forced marriages. Lawyers supporting Gao retort: What's wrong with that?

Clement says such policy decisions should be made by the executive branch, not unelected members of the judiciary. "The court of appeals' error is especially significant because it reached out to identify a broad new category of aliens (women in arranged marriages) entitled to seek asylum," Clement writes in his brief. The appeals court decision "has far-reaching ramifications for immigration policy in light of the fact that approximately 60% of marriages worldwide are arranged," he says.

In the case at hand, Gao is from a part of China where it is common in arranged marriages for a would-be husband to offer a cash payment to the future bride's family. In exchange, Gao was to become the man's wife after her 21st birthday.

Gao's mother spent the money to pay family bills and debts. Gao has said that at first she had no objection to her future husband. But she later discovered that he had a bad temperament and gambled, and she says he beat her. When the relationship soured, the potential husband tried to get his money back, but it had already been spent. Gao moved to a different city in China to get away. But the man continued to harass her family. Finally, Gao and her mother decided she should go to the US. They made arrangements with a smuggler and obtained a fake passport.

Under US immigration law, anyone deemed a "refugee" may be granted asylum. To qualify, an individual must show a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. In most cases, the persecution is meted out by a government. But the Second Circuit said in the Gao case that persecution could also stem from a personal relationship in combination with government-enforced customs.

The appeals court said that women who had been sold into marriage and who live in a part of China where forced marriages are considered valid and enforceable could qualify for refugee protection in the US. The appeals court found that, under such circumstances, Gao "might well be persecuted in China--in the form of lifelong, involuntary marriage." In contrast, the immigration judge viewed the case as a civil dispute between Gao's family, which had taken $2200 in exchange for turning their daughter over for marriage, and the would-be husband who paid $2200 for a bride. "This is clearly a dispute between two families and does not establish that [Gao] is a refugee," the immigration judge ruled.

Others disagree. "This is not just a civil case to pay this man off," says Stephen Knight, deputy director of the Center for Gender and Refugee Studies at the University of California's Hastings College of the Law in San Francisco. "We see this as a civil rights case of someone who has been sold into marriage."

In China, the crucial component in an arranged marriage is the exchange of money, not the wishes of the prospective bride. A Chinese court would probably order the marriage to go forward over Gao's objections, Mr. Knight says. "She should have the right to choose her husband," he says. "If she can't because she has been sold to someone who can bring down the power of the Chinese state to enforce the marriage, then she is a refugee."

The Bush administration suggests in its brief that if the Second Circuit decision stands, it might trigger a flood of women from around the globe fleeing unhappy arranged marriages. Knight says he's seen no flood since the appeals court decision was handed down in March 2006.

Unfortunately I haven't been able to find much other information about the background on this case, although the Circuit Court's decision is available online. While the prospect of "a flood of women from around the globe fleeing unhappy arranged marriages" smacks to me of overblown scare tactics, I'm not sure what to make of the Second Circuit's argument that the immigration judge erred in concluding that while she found Gao credible, nonetheless Gao failed to establish that A) the authorities would not protect her in the neighboring province to which she relocated (for example, by upholding her right to not be forced into marriage, while acknowledging her intended husband's claim to the money), and B) that the financial character of the dispute between the two families was secondary to the persecutory element. Again, I haven't been able to find a clear statement of this one way or the other, but my *impression* is that while there's legitimate cause to believe that the local authorities in the village where Gao grew up (who not incidentally include powerful relatives of her husband), would indeed force her into the marriage whether this was 'technically' permissible or not, she never attempted to take up the issue with authorities in her new province of residence. My understanding, somewhat contrary to Mr. Knight's claim, is that Chinese law doesn't in fact recognize the right of the local authorities to do this, and certainly not to mandate that the marriage be 'lifelong' (let alone the right of a husband to beat his wife), but rather that her family's inability to pay back her intended husband's money is the root cause of the dispute, and apparently(?) not one they've pursued all available legal avenues for within China, preferring instead what would seem the far more drastic move of getting her to the US while leaving her family stuck there, still unable to pay back the money.

Perhaps that distinction doesn't matter in practice though, and the likelihood that she and her family would continue to be harassed or worse should be seen as sufficient cause all by itself to grant her asylum. And ditto for any other woman, anywhere, who could make a reasonable case that 'de facto' she'd run into problems locally if she tried to get out of an arranged marriage, regardless of what the local laws say on paper. What do you think?

 

[trevster2k]

Umm, this doesn't have anything to do with this particular case but what is the U.S government policy on people who flee Cuba to arrive on U.S soil. Do they have to prove anything regarding being sent back to Cuba? Cuba is a communist state just like China, shouldn't the standards be the same? Are all Cubans accepted or do they have to provide merit to stay in the U.S or be faced with returning to face possible prosecution?

Regarding forced marriage as terms for political asylum, how is marriage viewed under the human rights legislation? Do women have the individual right to choose their spouse and is this agreed to be a human right of all peoples? Some governments and cultures do not think so while others do. Interesting case.

 

[yolland]

Umm, this doesn't have anything to do with this particular case but what is the U.S government policy on people who flee Cuba to arrive on U.S soil. Do they have to prove anything regarding being sent back to Cuba? Cuba is a communist state just like China, shouldn't the standards be the same? Are all Cubans accepted or do they have to provide merit to stay in the U.S or be faced with returning to face possible prosecution?

As of 1995, the US officially goes by what's known as the "wet foot/dry foot" policy, which essentially means that if you're intercepted by the Coast Guard (which they're under executive order to try to do), then you're turned back--or, if you can prove refugee status, resettled in one of about a dozen Latin American countries with which we have some sort of agreement on the matter that I frankly don't have a clue about. Whereas if you manage to evade the Coast Guard and land, you're more or less put on the fast track to citizenship. A strange update of the 1966 'Cuban Adjustment Act', purportedly intended to help 'normalize' immigration affairs between the two countries.

Regarding forced marriage as terms for political asylum, how is marriage viewed under the human rights legislation? Do women have the individual right to choose their spouse and is this agreed to be a human right of all peoples?

Well, it certainly isn't established as a matter of immigration law that an arranged marriage in and of itself warrants refugee status, otherwise this wouldn't even be an issue. My guess is that if a given country recognized no right whatsoever on the part of women to refuse an arranged marriage, then that would probably be seen as fairly unproblematic grounds for refugee status ('membership in a particular social group'), provided that likelihood of persecution in some form could be established. I gather the problem with this case is more that it's not in fact clear she had no legal alternatives, and as a result there's a debate as to what constitutes 'meaningful' alternatives. Well that, and the fact that there's apparently also a legitimate financial grievance involved, threatened consequences aside.