Significant ground is being gained in recognizing forced marriages as grounds for asylum in the United States. There is some grey area in the law on forced marriages but steady progress is being made towards accepting forced marriages as a harm that makes the victims eligible for asylum in the United States. While there is case law that makes it very clear that forced marriages may be grounds for asylum, some federal courts and immigration judges in the U.S. have denied the relief. There is however, evidence that the law is progressing towards wider acceptance of domestic abuses as providing grounds for asylum. Despite the challenges, a person who is a victim of a forced marriage should NOT hesitate to raise this as a grounds for asylum if the need arises.
Forced marriages is receiving consideration as grounds for asylum because as the UN Commission on Human Rights points out, it “can involve threatening behavior, abduction, imprisonment, physical violence, rape, and in some cases, murder”. It can be argued or should be expected that a forced marriage would result in other involuntary conduct such that a forced marriage may result in a life time of forced sex or rape and forced pregnancy.
It is commendable that U.S. law has started moving steadily in the direction of recognizing forced marriages as grounds for asylum. Among the U.S. jurisdictions that have determined that forced marriages may be grounds for asylum are the Second Circuit, Sixth Circuit, and Seventh Circuit appeals courts. The Second Circuit Court of Appeals held that a woman who had been sold into forced marriage is eligible for asylum in the case of Gao v. Gonzalez. The Gao case was cited with approval by the Sixth Circuit in Qu v Holder.
There are other federal jurisdictions in the United States that haven’t quite recognized forced marriage as grounds for asylum. The Third Circuit for instance has been reluctant to take a definitive position on the issue while the Fourth Circuit affirmed a denial of forced marriage as grounds for asylum. A number of immigration judges are also denying relief in such cases.
The resistance to grant forced marriage victims asylum is in large measures based on the argument that forced marriage victims are NOT a cognizable group because it is not particularized or socially visible.In Goa v Gonzales, however, the Second Circuit held that forced marriage constitutes a particular social group which is part of the requirement for asylum. There is therefore, some disparity among courts in the U.S. as to whether forced marriages constitute a particular social class.
Courts in the United States and Federal agencies are however, increasingly leaning towards recognizing forced marriages as a particular social class for purposes of an asylum application. The United States Citizenship and Immigration Service (USCIS) is one of the agencies that recognizes forced marriage as a form of persecution for purposes of asylum. In a 2011 lesson plan used to train asylum officers, USCIS noted “Forced marriage constitutes a human rights violation and may constitute persecution where the applicant experiences it as a serious harm. Way back in 1995 the Office of International Operations issued a memorandum directed to asylum officers in which it listed “forced marriage” as a harm that may make an alien eligible for asylum. The US Department of State also considers forced marriage as a violation of basic human rights.
In light of the developments in this area of the law, victims of forced marriage should NOT shy away from raising it to assert a claim for asylum.
Vivian Williams, P.C. is a New York based law firm that engages in extensive immigration research and litigation. The firm has a vibrant immigration division