The Brief: Law School News and Events

Refugees Fall Through Cracks in Asylum Laws

When faced with the challenge of securing asylum for refugee immigrants, Sarah Paoletti says there are no easy answers.

"The law does require us to make it more complicated than the reality is," said Paoletti, director of Penn Law's Transnational Legal Clinic, at the Founder's Day Symposium in January.

The symposium brings together professors from across the University each year to discuss a newsworthy subject. This year it was human rights, an issue that requires a broad range of perspectives.

Moderator Dean Michael A. Fitts opened the panel discussion with a series of hypothetical questions: What human rights are being violated if a young Somali woman turns to authorities after she contracts HIV from being raped by her husband in an arranged marriage and then is imprisoned for speaking out against him? If she flees to the U.S., would asylum laws protect her from being deported?

"In this case, where you have a history of past persecution, where the state has been explicitly complicit in the persecution that she's undergone, I think it's easy enough… to show that there's a human rights violation," Paoletti replied. "But the question is how do you define the nexus — the why is she being persecuted? The reality for her is that the reason she is facing all of these levels of persecution is because she's a woman, but that's not enough."

Under the Refugee Convention, claimants must prove that they are being persecuted on the basis of ethnicity or sociopolitical opinion. Gender discrimination alone does not grant asylum, she said. Paoletti added that the Third Circuit Court of Appeals ruled that withholding HIV treatment is not a human rights violation because there is no intent to torture.

However, Stephen Gluckman, director of Clinical Infectious Disease at Penn Medicine, noted that a rising number of HIV cases are a result of a violation of human rights, particularly among women in arranged marriages.

"They (women) have no leverage because they have no economic freedom," Gluckman said. "They can't demand safe sex or monogamy, and they can't say no because they need to eat and they need shelter. Big picture HIV — this will not be a controllable disease unless that is addressed."

Tukufu Zuberi, chair of Penn's Department of Sociology, said that customs such as arranged marriages should not be overlooked by human rights leaders.

"It can't be that a cultural practice which violates human rights can now hide because it has been practiced for 1,000 years," he said. "This woman, who is seeking freedom and finding no support for that by the country she lives in or by the family members that surround her, ends up getting a break to get out of the country. From my perspective, it is a chance for her to protect her human rights. This removes the notion that the U.S. is exempt from this situation."

Other participants were Samuel Freedman of the School of Arts & Sciences and Ann Mayer from Wharton.