In mid-2001, Johana Cece, a woman in her early twenties, fled her hometown of Korçë, a small city near Albania’s Greek border. A local gang member, “Reqi,” who was notorious for kidnapping women Cece’s age to work as prostitutes, had begun stalking her around town, offering her rides and asking her out on dates that Cece refused. Things came to a head one day when Reqi followed her into a crowded cosmetics store and pinned her against the wall. One account of their encounter said that “Reqi made it clear to Cece that he could not be stopped and that he would find her and do whatever he wanted to her.” Friends convinced a terrified Cece to complain to the police, who dismissed her claims as baseless out of hand. She never returned to Korçë.
By 2002, by way of a falsely obtained Italian passport, Cece had arrived in the U.S. and claimed asylum—a move that would kick off an 11-year legal battle that was only resolved this month. At issue, though, was not Cece’s credibility, nor whether her fears of forced prostitution were founded. The central question of her decade-long fight was whether or not she belongs to one of the groups singled out for protection in the U.S. asylum statute: foreigners who have been persecuted on account of their race, religion, nationality, political opinions, or membership in a particular social group. It’s that last category that Cece had to argue her way into—her particular social group being young Albanian women targeted for sex trafficking—and over the course of her legal fight, various judicial bodies ruled six separate times on whether or not that constitutes a valid category.
Finally, on August 9, she won a critical victory before the Seventh Circuit, which issued a sweeping defense of asylum for targets of sex-trafficking. The ruling sets a precedent that will protect thousands of other asylum-seekers, and Cece is expected to earn refugee status when her case goes back to the Board of Immigration Appeals. But Cece’s legal travails illustrate a persistent obstacle facing female refugees who have escaped domestic abuse, sex trafficking, or forced marriage in their home countries and made it to the U.S.: Because no presidential administration has ever clearly spelled out how the “particular social group” category applies to women, a woman’s fate usually relies on the whims of the judge hearing her case.
“The lack of guidance has led to some terribly arbitrary decision-making,” said Karen Musalo, the director of the University of California—Hastings Center for Gender and Refugee Studies. To Musalo and the rest of the refugee advocate community, if the asylum statute were always applied correctly, women would have no trouble convincing judges that they are targeted based on their gender, and that is grounds for an asylum claim. In fact, clarifying the statute by issuing a new, joint rule from the Department of Justice and Homeland Security is one of the Obama administration’s unmet priorities. It has appeared on his administration’s regulatory plan since fall 2009, but to no avail.
"Right now, gender-based asylum claims are still basically judicially created claims,” said Simona Agnolucci, an intellectual property and commercial attorney who represents women seeking refugee status pro bono. Essentially, each time a woman claims asylum for gender-related reasons, her attorney (if she has one) is building an asylum category from scratch or cobbling it together from other court cases. The result is a wildly inconsistent legal landscape where a female refugee’s chances of asylum are largely based on luck. There is even variation among which gender-based “particular social groups” fare best before immigration judges, where the vast majority of these cases play out. “Female genital cutting—that, I think you’d be hard pressed to find a court that doesn’t think that’s a basis for asylum,” said Agnolucci. “But in the case of forced marriage, there’s only one circuit court that has recognized that as a form of persecution. Domestic violence is still in flux. Sex-trafficking is still in flux.”
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About Simona Agnolucci
Simona Agnolucci specializes in complex litigation, including intellectual property matters, securities cases, and commercial disputes. She has represented major brokerage companies and investment advisors, as well as cutting-edge Internet and smartphone companies. Ms. Agnolucci has litigated cases before state and federal trial courts and has substantial experience in appellate matters across various substantive areas of the law.
Ms. Agnolucci has an active pro bono practice, in which she primarily represents women fleeing gender-based persecution.