Latest Gender-Based Asylum Claim

Thanks to Stephen Knight, UC Hastings, for this description:

The Second Circuit Court of Appeals today granted asylum to a young woman who fled a forced marriage. Gao v. Gonzales, No. 04-1874-ag (2d. Cir 2006).

This precedential decision is the first opinion we are aware of addressing the issue of forced marriage as a basis for asylum.

At age 19, Ms. Gao was sold by her parents through a broker to a man whom she was to marry when she turned 21. When she tried to refuse, she was threatened with arrest. She fled to another city, but he tracked her down, and her family was targeted for retribution.

The Immigration Judge denied, dismissing her asylum claim as just “a dispute between two families,” and ruling both that the government could protect her, and that she could safely relocate within China. Unfortunately but not surprisingly, the BIA summarily affirmed.

Reversing the decision, the Second Circuit defined the social group as “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.” They found she belonged to, and had a well-founded fear of persecution on account of, her membership in that group.

The decision discussed Gomez, which has long been seen as problematic for gender cases in the Second Circuit. “Gomez can reasonably be read as limited to situations in which an applicant fails to show a risk of future persecution on the basis of the ‘particular social group’ claimed, rather than as setting an a priori rule for which social groups are cognizable.”

The court remanded to the BIA on the relocation issue, but noting that the agency must address the reasonableness, and not just the availability, of internal flight.

The petitioner was pro se.

In a footnote, the opinion cites to and discusses the position taken by DHS in its brief in the Rodi Alvarado case. For those looking to use the DHS brief, this provides an opportunity to reference to a published federal case making explicit DHS’s already public position.

Thanks to Dan Kowalski for the opinion: Download gao_v_gonzales.pdf 

KJ