Sunday, January 17, 2021

Immigration Article of the Day: The Tortured Woman: Defying the Gendered Conventions of the Convention Against Torture by Linda Kelly

Check out Linda Kelly's article The Tortured Woman: Defying the Gendered Conventions of the Convention Against Torture in American University Washington College of Law's Human Rights Brief (Vol. 24, Issue 2, Winter 2020). Here is her introduction:

In the last few years, asylum advocacy for women has made some great strides — and has had some significant setbacks. Terrific attention has been paid to the ongoing, twenty-year struggle of domestic violence survivors to win asylum. The hard-won victory of female genital mutilation (FGM) claims for asylees has also been widely celebrated. However, little attention is paid to women’s claims pursuant to the Convention against Torture (CAT).

There are both practical and legal reasons for the difference in interest between asylum and CAT claims. As a practical matter, asylum has more benefits. Asylum puts the recipient on the road to residency and allows her to petition for family members. By contrast, CAT relief is a strictly limited benefit for the recipient, who can be subject to detention for the duration of status. As a legal matter, asylum is also easier to win. Asylum’s “reasonable fear of persecution” is much lower than CAT’s “would be tortured” analysis.

The fights, wins, and losses of female asylees deserve all the support they get — and more. Nevertheless, CAT remains an important tool for women. There are many women who are not eligible for asylum due to prior criminal or immigration records. Ongoing challenges to what qualifies as a valid particular social group for gender violence asylum claims and possible new, severe restrictions on all asylum claims further contribute to the need to fully appreciate and litigate CAT claims.

CAT requires that a claimant prove she “will more likely than not be tortured with the consent or acquiescence of a public official if removed to her native country.” This standard breaks down in four significant criteria for the success of a CAT claim: torture, government action or acquiescence, relocation, and future harm. This Article systematically evaluates the CAT standards from a gendered perspective. When they are put in context with the overarching historical struggle of women to fight gender violence, Professor Catherine MacKinnon’s blunt question arises: “Are Women Human?”

While gender challenges persist, existing CAT regulations can be tools to defy them. Uncovering CAT’s gender conventions, this Article proposes a new perspective on CAT standards of torture, state acquiescence, and relocation. Such proposals rely on key, positive 2020 U.S. Circuit Court CAT decisions while remaining rooted in feminist norms.

Part I of this Article introduces the basic definition of torture. Addressing the “what” and “why,” it considers what acts of domestic violence, rape, and sexual assault qualify as torture and whether why they occur is being fully considered. Part II follows by critiquing whether “who” perpetrates such acts of torture can fit the standard of government actor or acquiescence. Part III then moves to relocation, proposing that the standard can readily encompass safety issues unique to gender violence. Finally, Part IV brings the variables together to properly calculate the risk a torture victim will face upon return and asks how gender violence changes the calculus.


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