By Madelyn Cox-Guerra*

Background:

The overturning of Roe v. Wade has extended the barriers noncitizens face in attempting to access abortion in the United States.^[1] In particular, it further complicates the question of whether a noncitizen can seek abortion asylum in the U.S., now that the right to an abortion is no longer federally recognized. In the wake of the Dobbs opinion, it is important to examine whether an asylum-seeker could successfully be granted asylum after facing penalties for the criminalization of abortion in their home country. The criminalization of abortion has a drastic impact beyond just the denial of bodily autonomy. In countries that have criminalized abortion, individuals who miscarried their pregnancies have been criminally prosecuted and sentenced to prison terms.^[2] There are such individuals who have succeeded in achieving refugee or asylee status in other countries.^[3]

The number of undocumented immigrants and asylum applicants from countries that criminalize abortion demonstrates that being able to apply for asylum on the grounds of facing persecution due to the criminalization of abortion could help many people achieve legal status.^[4] In 2019, the Migration Policy Institute reported that the top five countries of origin for undocumented immigrants in the U.S. are Mexico (48%), El Salvador (7%), Guatemala (7%), India (5%), and Honduras (4%).^[5] Of these five countries, El Salvador and Honduras have complete abortion bans with criminal penalties,^[6] Guatemala has an abortion ban with exceptions to save the life of the mother, India has legalized abortion prior to 9 weeks of gestation except in special circumstances, and some states in Mexico have legalized abortions.^[7] Further, in the last three years, a significant portion of asylum applicants have been from Honduras and El Salvador. This shows that there is overlap between people in need of asylum and restrictive abortion laws in their home countries.

Figure 1^[8]

It is also possible that the hundreds of pregnant women detained by D.H.S. are in need of abortion care. The U.S. Border Patrol and CBP Office of Field Operations process hundreds of pregnant women per year. In fact, “OFO reported holding over 3,900 pregnant women from March 2018 through September 2019 at its ports of entry.”^[9]

It seems that  no opinions analyzing asylum claims on the grounds of being persecuted by countries that criminalize abortion, or even needing abortion access, have been published or made publicly available. However, it is possible that these potential grounds for asylum could be successfully analogized to other grounds for asylum, such as (1) being subjected to government enforced forcible sterilization or abortion due to population control policies, (2) being subjected to Female Genital Mutilation (FGM), or (3) being a victim of gender-based domestic violence. This blog analyzes the precedential potential of each of these types of asylum claims.

Basic Requirements of Asylum Claims:

The statute governing asylum is 8 U.S. Code § 1158. An asylum applicant must demonstrate that they are a refugee under 1101(a)(42)(A), and that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”^[10] Refugees must establish that they are “unable or unwilling to return to, and [are] unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution.”^[11] This blog’s analysis will focus on the Particular Social Group category.

Membership in a Particular Social Group is grounds for asylum for individuals in a group who either cannot change, or should not be required to change, their group status because it is fundamental to their individual identities or consciences.^[12] A Particular Social Group must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”^[13] The characteristics of the social group “must ‘exist independently’ of the harm asserted in an application for asylum or statutory withholding of removal.”^[14]

1. Forcible Abortions and Sterilization (Statutory Refugee)

After the BIA decided in Matter of Chang^[15] that the “implementation of a coercive population control policy is not, on its face, a basis for asylum eligibility,”^[16] Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act in 1996. The IIRIRA included Section 601, which added explicit language defining a person who failed, refused, or resisted coercive population control programs (forced abortions and sterilization) as refugees^[17] persecuted based on their political opinion.^[18] In addition to individuals who had experienced forced abortions and involuntary sterilizations, the BIA held that 8 U.S.C. § 1101(a)(42)(B) included the spouses of victims of forced abortion and sterilization.^[19] However, in Matter of J.S., the Attorney General overturned In re C-Y-Z.^[20] In Matter of J.S, the asylum applicant was a “married Chinese national whose wife remain[ed] in China” seeking asylum “under section 601(a) because his wife allegedly was forced to undergo an ‘involuntary sterilization’ procedure.”^[21] The attorney general concluded, because the language in the statute focused on “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization,”^[22] the plain language does not include the spouses of those individuals.^[23] The Attorney General made it clear that the opinion was limited, and the “decision holds only that spouses are not entitled to the same per se refugee status that section 601(a) expressly accords persons who have physically undergone forced abortion or sterilization procedures.”^[24] This implies that a spouse could successfully apply for asylum, just without automatically being defined as a refugee by statute. An important part of the Attorney General’s opinion is that merely living in a country that enforces coercive population control is not enough to qualify as a refugee, because then “most of China’s population would qualify as refugees under the provision [Section 601].”^[25]

For pro-choice advocates, it is easy to compare the persecution of “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization” in a country with coercive population control to the persecution of a person in need of an abortion or birth control access.^[26] However, despite this parallel logic, there is a statutory basis for asylum on the grounds of forced abortion sterilization, but not for barring access to abortion and contraception. Because of this, the case law regarding 8 U.S.C. § 1101(a)(42)(B) is unlikely to be persuasive in arguing for asylum on the grounds of being denied access to abortion and contraception.

2. Female Genital Mutilation (Particular Social Group)

In Matter of Kasinga, the BIA decided that individuals in social groups that practice FGM, in danger of having FGM, and are opposed to the practice are a Particular Social Group.^[27] The asylum-seeker in that case was “a member of a social group consisting of young women of the Tchamba- Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice.”^[28] The fear of having to undergo FGM established “a well-founded fear of persecution” because “under tribal custom, her aunt and her husband planned to force her to submit to FGM.”^[29] Importantly, even if FGM^[30] has already occurred, that does not eliminate the asylum-seeker’s claim, because it is possible for FGM to occur more than once (depending on the circumstances).^[31]

Matter of Kasinga identifies a very specific cultural practice, FGM, as grounds for asylum, which likely means it cannot be persuasively used as precedent to argue that a person from a country that criminalized abortion and suffered physical harm from that is entitled to asylum. However, Matter of Kasinga does establish that it is possible for victims of specific types of gender-based violence to qualify as a Particular Social Group for the purposes of asylum law.

3. Gender-Based Domestic Violence (Particular Social Group)

Whether women experiencing gender-based violence, specifically domestic violence, is a particular social group is a legal question in constant flux. In Matter of A-R-C-G, the BIA recognized “married women in Guatemala who are unable to leave their relationship” as a particular social group.^[32] However, in Matter of A-B, then-Attorney General Jeff Sessions overruled Matter of A-R-C-G in 2018.^[33] In 2021, Attorney General Merrick Garland released an opinion which vacated Matter of A-B, thus reinstating the authority of Matter of A-R-C-G, which means the current precedent establishes that being a victim of domestic violence in a country unwilling to take action to end domestic violence can be a Particular Social Group.^[34] However, the Fifth Circuit (which controls district courts in Texas, Louisiana, and Mississippi), recently released an opinion reversing Matter of A-R-C-G, which makes the decision irrelevant within just the Fifth Circuit.^[35]

For now, outside the Fifth Circuit, Matter of A-R-C-G can provide helpful precedent for arguing that a person persecuted for having an abortion is part of a Particular Social Group. Two potential Particular Social Groups are: (1) a person who had a miscarriage in [x country], and (2) a person who had an illegal abortion in [x country].

First, having had an abortion or miscarriage are immutable traits; a person cannot change their medical history. Meanwhile, being pregnant is not truly immutable because a person cannot stay pregnant forever; however, wanting to exercise the right to an abortion as a pregnant person is a political opinion that can fit into this category. Second, a group of persons within a specific country that have either had an abortion or miscarriage is sufficiently particular, and in fact includes more parameters that those set out in Matter of A-R-C-G. Finally, the Particular Social Group is separate from the persecution. The characteristics of the social group “must ‘exist independently’ of the harm asserted in an application for asylum or statutory withholding of removal.”^[36] Miscarriage itself is not part of the persecution, but facing prosecution and a prison sentence for having a miscarriage is persecution. The same is true for individuals who have had an abortion, and those in need of an abortion. To provide a counter-example, “a person who was sentenced to a prison term under a statute criminalizing abortion” would not a valid Particular Social Group because it is not distinct from the persecution.

Further, past criminalization in these cases establishes past persecution, and is also evidence of future persecution because a person can become pregnant, have a miscarriage, and have an abortion multiple times. This means there is a constant risk of being re-persecuted.

Conclusion:

B.I.A. and A.G. asylum case law precedent establishes that victims of domestic violence in countries unwilling to end pervasive domestic violence are a Particular Social Group. Matter of A-R-C-G likely provides precedent for arguing that a person in need of an abortion, or who has already been criminalized for abortion or miscarriage, is a member of a Particular Social Group and thus entitled to asylum. Determining whether the case for abortion asylum exists is more important now than ever since there is no longer a federal right to abortion due to Dobbs, and abortion is no longer legal in eleven states.^[37]

—

[1] While the Biden administration has eliminated many anti-choice immigration policies from Trump’s presidency, post-Dobbs state abortion bans have increased the difficulty in accessing abortion and other types of reproductive care. During the Trump Administration, the ORR had a policy of denying abortions to undocumented minor wards in the state’s custody; now, the ORR has a policy of informing minors of their right to abortion and presents guidelines for ORR facilities which direct them to ensure minors needing abortions are able to travel to other states as necessary. See Office of Refugee Resettlement, Field Guidance – October 1, 2021 (2021) at 2–3 (https://www.acf.hhs.gov/sites/default/files/documents/orr/FG-21-SB-8-and-Garza.pdf).

[2] Nina Lakhani, Abortion: El Salvador’s jailed women offer US glimpse of post-Roe future, The Guardian (May 19, 2022), https://www.theguardian.com/world/2022/may/19/abortion-el-salvador-jailed-women-roe-v-wade (reporting that “[t]he Salvadorian anti-abortion law, which was subsequently written into the constitution, has led to at least 182 women who suffered an obstetric emergency being prosecuted for abortion or aggravated homicide.”).

[3] Lena Bodenhamer, Abortion refugees: the future of American abortion bans, THE EMORY WHEEL (Jan. 13, 2022), https://emorywheel.com/abortion-refugees-the-future-of-american-abortion-bans/.

[4] This is not to assume the opinions of undocumented persons or asylum-seekers, but rather to show that the high number of undocumented people and asylum-seekers from countries criminalizing abortion means some of them have likely faced persecution due to their support for abortion rights, getting or trying to get an abortion, or being prosecuted for having a miscarriage.

[5] Migration Policy Institute, Profile of Unauthorized Population, (accessed Sept. 30, 2022), https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US.

[6] Madeline Fitzgerald, Countries with the Most Restrictive Abortion Laws, U.S. News (July 13, 2022),  https://www.usnews.com/news/best-countries/slideshows/countries-with-the-most-restrictive-abortion-laws?slide=2 (stating that “at least 182 women have been prosecuted as a result of medical emergencies during their pregnancies, which were subsequently charged as abortions or homicides” in El Salvador since abortion was totally banned in 1998 and “[s]ince 1985, it has been illegal to terminate any pregnancy in Honduras – even if the pregnancy is the result of rape or incest or could endanger the life of the mother. In 2021, this restriction was made even tighter when the Honduran Congress added an abortion ban to the country’s constitution.”).

[7] Gustavo Solis, Mexican abortion clinics bracing for influx of Americans, K.P.B.S. (June 30, 2022), https://www.kpbs.org/news/border-immigration/2022/06/30/mexican-abortion-clinics-bracing-influx-americans. (“Mexico, which is overwhelmingly Catholic, had long banned abortions. But now they are legal in eight states for people who are up to 12 weeks pregnant, and longer in cases of rape or to save a patient’s life.”).

[8] Ryan Baugh, Fiscal Year 2020 Refugees and Asylees Annual Flow Report, Dept. of Homeland Sec., at 17 (Mar. 8 2022),  https://www.dhs.gov/sites/default/files/2022-03/22_0308_plcy_refugees_and_asylees_fy2020_1.pdf.

[9] United States Government Accountability Office, Care of Pregnant Women in DHS Facilities (2020), https://www.gao.gov/assets/gao-20-330.pdf, at 21.

[10] 8 U.S.C. § 1158 (b)(1)(B)(i).

[11] 8 U.S.C. § 1101(a)(42)(A).

[12] Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).

[13] Alvarez Lagos v. Barr, 927 F.3d 236, 252 (4th Cir. 2019).

[14] Matter of A-B-, 27 I&N Dec. 316, 334 (A.G. 2018) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 236 n.11 (BIA 2014)).

[15] 20 I&N Dec. 38 (BIA 1989).

[16] Paula Abrams, Population Politics: Reproductive Rights and U.S. Asylum Policy, 14 Geo. Immigr. L. J. 881, 885 (2000).

[17] 8 U.S.C. § 1101(a)(42) (declaring “[t]he term “refugee” means . . .”).

[18] 8 U.S.C. § 1101(a)(42)(B) (emphasis added).

[19] See In re C-Y-Z, 21 I&N Dec. 915 (BIA 1997).

[20] 24 I&N Dec. 520 (A.G. 2008).

[21] Id. at 522.

[22] 8 U.S.C. § 1101(a)(42)(B).

[23] Id.

[24] Id.

[25] Matter of J.S., 24 I&N Dec. 520, 534 (A.G. 2008).

[26] 8 U.S.C. § 1101(a)(42)(B).

[27] 21 I&N Dec. 357 (BIA 1996).

[28] Id. at 358.

[29] Id.

[30] Id. at 361. Matter of Kasinga provides a description of the physical harm caused by FGM: “The record material establishes that FGM in its extreme forms is a practice in which portions of the female genitalia are cut away. In some cases, the vagina is sutured partially closed. This practice clearly inflicts harm or suffering upon the girl or woman who undergoes it. FGM is extremely painful and at least temporarily incapacitating. It permanently disfigures the female genitalia. FGM exposes the girl or woman to the risk of serious, potentially life-threatening complications. These include, among others, bleeding, infection, urine retention, stress, shock, psychological trauma, and damage to the urethra and anus. It can result in permanent loss of genital sensation and can adversely affect sexual and erotic functions.”

[31] Matter of A— T— , 25 I&N Dec. 4 (B.I.A. 2009).

[32] Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).

[33] Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)

[34] Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021).

[35] Tahirih Denounces New Opinion on Matter of A-R-C-G-, Tahirih Justice Center (Oct. 28, 2021), , https://www.tahirih.org/news/tahirih-denounces-new-opinion-on-matter-of-a-r-c-g/.

[36] Matter of A-B-, 27 I&N Dec. 316, 334 (A.G. 2018) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 236 n.11 (BIA 2014)).

[37] CENTER FOR REPRODUCTIVE RIGHTS, Abortion is Now Illegal in 11 U.S. States, CENTER FOR REPRODUCTIVE RIGHTS (Aug. 30 2022), https://reproductiverights.org/abortion-illegal-11-states/.

* Madelyn Cox-Guerra, J.D. Candidate, University of Minnesota Law School Class of 2023, JLI Vol. 41 Lead Online Editor