Comments on: Brave Afghani Women Protest Law Change http://law.marquette.edu/facultyblog/2009/04/15/brave-afghani-women-protest-law-change/ Sun, 12 Feb 2012 17:44:22 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Jessica E. Slavin http://law.marquette.edu/facultyblog/2009/04/15/brave-afghani-women-protest-law-change/comment-page-1/#comment-20124 Jessica E. Slavin Sat, 18 Apr 2009 01:58:54 +0000 http://law.marquette.edu/facultyblog/?p=4767#comment-20124 It's interesting that you address the point this way, David. In truth, as my refugee law seminar students and I discussed a couple of weeks ago, an alternative way to define a refugee would be to replace the list of enumerated grounds with "social group," because in the end it seems that wherever persecution occurs, it follows from the persecutor's perception that the persecutor is a member of a social group that deserves the punishment. What is interesting to me is the way that refugee law struggles to deny that persecution does occur on account of gender, or more precisely, often, failure of the persecuted to conform their behavior to prescribed gender roles. You would probably also be interested to know that, I think similarly, refugee law struggles to find a way to deny that persecution occurs on account of economic beliefs or practices, beliefs that are defined as personal choices, rather than political ones. For instance, see the Board of Immigration's decision in Matter of Acosta, which explained that a taxi driver's harassment and fears of murder by guerrillas was not "persecution" because, it resulted from his refusal "to participate in work stoppages in that city. The characteristics defining the group of which the respondent was a member and subjecting that group to punishment were being a taxi driver in San Salvador and refusing to participate in guerrilla-sponsored work stoppages. Neither of these characteristics is immutable because the members of the group could avoid the threats of the guerrillas either by changing jobs or by cooperating in work stoppages. It may be unfortunate that the respondent either would have had to change his means of earning a living or cooperate with the guerrillas in order to avoid their threats. However, the internationally accepted concept of a refugee simply does not guarantee an individual a right to work in the job of his choice." It’s interesting that you address the point this way, David. In truth, as my refugee law seminar students and I discussed a couple of weeks ago, an alternative way to define a refugee would be to replace the list of enumerated grounds with “social group,” because in the end it seems that wherever persecution occurs, it follows from the persecutor’s perception that the persecutor is a member of a social group that deserves the punishment. What is interesting to me is the way that refugee law struggles to deny that persecution does occur on account of gender, or more precisely, often, failure of the persecuted to conform their behavior to prescribed gender roles.

You would probably also be interested to know that, I think similarly, refugee law struggles to find a way to deny that persecution occurs on account of economic beliefs or practices, beliefs that are defined as personal choices, rather than political ones. For instance, see the Board of Immigration’s decision in Matter of Acosta, which explained that a taxi driver’s harassment and fears of murder by guerrillas was not “persecution” because, it resulted from his refusal “to participate in work stoppages in that city. The characteristics defining the group of which the respondent was a member and subjecting that group to punishment were being a taxi driver in San Salvador and refusing to participate in guerrilla-sponsored work stoppages. Neither of these characteristics is immutable because the members of the group could avoid the threats of the guerrillas either by changing jobs or by cooperating in work stoppages. It may be unfortunate that the respondent either would have had to change his means of earning a living or cooperate with the guerrillas in order to avoid their threats. However, the internationally accepted concept of a refugee simply does not guarantee an individual a right to work in the job of his choice.”

]]> By: David Papke http://law.marquette.edu/facultyblog/2009/04/15/brave-afghani-women-protest-law-change/comment-page-1/#comment-20019 David Papke Fri, 17 Apr 2009 15:05:15 +0000 http://law.marquette.edu/facultyblog/?p=4767#comment-20019 Much has been written about the "identity politics" of the postmodern society. The basic notion is that we increasingly define ourselves "politically" with reference not to liberalism or conservatism but rather race, gender, sexual orientation, age, etc. I personally maintain a fondness for the "left to right" politics of the traditional political spectrum, but I nevertheless accept the importance and legitimacy of identity politics. From this perspective, gender seems clearly to be a source of persecution in many parts of the world, and I agree that "gender" should be added to the enumerated categories for refugee status in the United States. In fact, I'm stunned that it's not on the list. Much has been written about the “identity politics” of the postmodern society. The basic notion is that we increasingly define ourselves “politically” with reference not to liberalism or conservatism but rather race, gender, sexual orientation, age, etc. I personally maintain a fondness for the “left to right” politics of the traditional political spectrum, but I nevertheless accept the importance and legitimacy of identity politics. From this perspective, gender seems clearly to be a source of persecution in many parts of the world, and I agree that “gender” should be added to the enumerated categories for refugee status in the United States. In fact, I’m stunned that it’s not on the list.

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