ADDENDUM toThird Supplement to Chapter 15: Refugee and Asylum Law; Jurisprudence of Human Rights; Cultural Relativism (November 15, 2005) º
In Thomas v. Gonzales, 409 F.3d 1177 (9 th Cir. 2005)(en banc), the court held that four white South Africans (mother, father and their two children) were members of “a particular social group,” i.e., persons related to “Boss Ronnie,” a white foreman at a private South African company who physically and verbally abused black workers, and that the petitioners had been attacked and threatened on account of that membership. ( Id. at 1189.) The court then remanded the case to the BIA to determine whether the attacks and threats constituted persecution, whether the petitioners had a well-founded fear of future persecution and whether they were entitled to asylum. ( Id.)
In reaching this conclusion, the court recognized that the Ninth Circuit had two inconsistent lines of authority on whether family or kinship ties can give rise to “a particular social group.” ( Id. at 1186-87.) The court, therefore, overruled all of its prior decisions that held that a family could not be such a group and expressly held that a family may constitute such a group. ( Id. at 1187.) 1 In addition, the court stated:
“[O]nly when the alleged persecution precludes relocation and exceeds the government’s ability or will to control can [this type of] claim . . . lead to eligibility for asylum. It is, of course, far more likely that persecution will reach those proportions when kinship ties are mingled with political, religious, racial, or ethnic affinities.” ( Id. at 1189.)
Four of the 11 members of the Ninth Circuit in Thomas concurred with the majority that a family may be a “particular social group,” but dissented from the conclusion that the particular family in the case was such a group without any prior determination of that issue by the BIA. ( Id. at 1189-93.)
On October 31, 2005, the United States filed a petition for certiorari with the U.S. Supreme Court asking whether “ the court of appeals erred in holding, in the first instance and without prior resolution of the questions by the Attorney General, that members of a family can and do constitute a ‘particular social group,’ within the meaning of the Immigration and Nationality Act's definition of "refugee," . . . and that they were harmed ‘on account of’ that status.” (Petition for Certiorari, Gonzales v. Thomas, No. 05-552, 2005 WL 2875043 ( U.S. 2005).) The Government said that this case was important, in part, because of the importance of the Ninth Circuit in asylum cases: in FY 2005, it accounted for 37% of the 4,460 petitions to the courts of appeals for review of BIA asylum cases. ( Id.)
F. Obstacles to FGM- and Spousal Violence-Based Claims (Coursebook at 896-904)
On October 26, 2005, Togo was the 15 th African state to ratify the Protocol to the African Charter on Human and Peoples’ Rights of Women in Africa (Protocol). 2 As a result, the Protocol will come into force on November 25, 2005. 3
Among its many far-reaching provisions is one whereby States Parties shall prohibit “through legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalisation and para-medicalisation of female genital mutilation and all other practices in order to eradicate them.” 4
More generally, the Protocol requires States Parties to “take appropriate and effective measures to . . . actively promote peace education through curricula and social communication in order to eradicate elements in traditional and cultural beliefs, practices and stereotypes which legitimize and exacerbate the persistence and tolerance of violence against women.” 5
º The principal author of this supplement is Duane W. Krohnke, Adjunct Professor, University of Minnesota Law School, with the able assistance of Erin E. Hanrahan, 2L, University of Minnesota Law School.
1. An amicus brief in the Ninth Circuit argued that recognizing a family as “a particular social group” was important for protection and fair treatment of women in asylum cases. (Amicus Curiae Brief on Rehearing En Banc, Thomas v. Ashcroft (9 th Cir. Nov. 24, 2004), available at http://www.gbls.org/immigration/AMICUSTHOMAS.pdf.)
2. Amnesty International, Africa: Entry into force of Protocol on the Rights of Women in Africa positive step towards ending discrimination (Oct. 28, 2005), available at http://www.amnestyusa.org/news/document.do?id=ENGAFR010042005. The other ratifying countries are Cape Verde, The Comoros, Djibouti, the Gambia, Lesotho, Libya, Malawi, Mali, Namibia, Nigeria, Rwanda, Senegal, South Africa and Benin. (African Union, List of Countries Which Have Signed, Ratified/Acceded to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, available at http://www.africa-union.org/Official_documents/Treaties_%20Conventions_%20Protocols/List/Protocol%20on%20the%20Rights%20of%20Women.pdf.)
3. Protocol, art. 29(1). The Protocol is available at http://www.achpr.org/english/_info/women_en.html.
4. Protocol, art. 5(b).
5. Protocol, art. 4(2)(d).