International Files

Comparing Women’s Rights in Afghanistan 30 Years Ago and Today

As illustrated by the story of activist Delara Nasseri

By Beth Persky

Beth Persky is a certified specialist in immigration and nationality law with the California Board of Legal Specialization. She practices immigration law nationwide. She is the immediate past chair of the FBA’s International Law Section and the current chair of the ECOSOC committee. Judith Wood is an immigration litigator with a number of published landmark decisions in the area of political asylum. In 1994, she won a case before the Ninth Circuit, Nasseri v. Moschorak, 34 F.3d 723 (Ninth Circuit, 1994), in which a Ninth Circuit panel reversed the district court’s decision and granted asylum to a teacher from Afghanistan who was apprehended by the Immigration and Naturalization Service upon attempting to enter the United States. The story was the basis for the 2018 film St. Judy, produced by Cannonball Productions. The author interviewed Wood about the case and its relevance to the current legal framework for Afghan asylum cases.

Delara Nasseri was a teacher in a public elementary school in Kabul and had been an active member of a group in Afghanistan that opposed both the communist regime and the fundamentalist factions of the mujahidin who had seized power in Afghanistan—the National Islamic Front for Afghanistan (NIFA). Nasseri attempted to enter the United States on June 14, 1992, to seek asylum and was detained and placed in exclusion proceedings.1

Persky: Judy, in 1994 you won the Nasseri case before the Ninth Circuit. Who was Delara Nasseri, and why is her case important for the development of asylum law in the United States?

Wood: Delara Nasseri was an elementary schoolteacher at the time when the country was under communist control and the fundamentalist forces were organizing a rebellion. She was also a political activist and favored the return of the constitutional monarchy. She was opposed to the communist regime and also opposed the mujahidin. This case is important because it gives a detailed opinion on the issue of credibility. Nasseri was found credible by the immigration judge (IJ), but the IJ considered her story to be implausible.

The Board of Immigration Appeals (BIA) then found her not to be credible. The Ninth Circuit found that the BIA was absolutely wrong and went into great detail explaining why Nasseri was credible and why her story was plausible. So, the case goes beyond Nasseri’s own and washes over to the broader issue of credibility.

In 1990, Nasseri was kidnapped and imprisoned by the mujahidin. She was eventually released, after having been tortured. She then escaped to India after her parent’s house was bombed. In India, she was pursued by mujahidin rebels. She then left India and came to the United States.

Persky: Why did the IJ deny her asylum claim in August 1992?

Wood: The IJ found that Nasseri did not explain why rebels would follow her to India. She never said that they followed her. Rather they “tracked her down” there.

Persky: What did the BIA use as its basis for denying her claim in exclusion proceedings?

Wood: The BIA, although finding that Nasseri testified in an honest and forthright manner, held that her testimony was not plausible based on its analysis of the political situation in Afghanistan.

On appeal to the BIA, Nasseri submitted further evidence establishing her membership in the NIFA and a letter from a former U.S. assistant to the U.S. Embassy in Kabul stating that Nasseri was well known as an opponent of both the communist regime, which was in power at the time, and the mujahidin. She also submitted a letter from her husband stating that she was a member of the NIFA and proof of her membership.

Persky: The Ninth Circuit found that Nasseri’s persecution was on account of political opinion. What led to their conclusion?

Wood: The Ninth Circuit really slammed the BIA on credibility.

The court cited Turcios v. INS, 821 F2d 1396, 1300 (9th Cir. 1987), stating that negative credibility finding must be based on substantial reason and must bear a legitimate nexus to the finding. The court also cited Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990), stating that the reasons for a negative credibility finding must be based on valid grounds for determining that the witness is not credible.

Persky: At the time that Nasseri was apprehended, there was a separate “exclusion proceeding.” You

appealed to the Ninth Circuit from a denied writ of habeas corpus in the District Court for the Central District of California. What evidence did the Ninth Circuit use in support of its decision to reverse the district court decision?

Wood: The Ninth Circuit correctly found that the record contradicted this erroneous finding and stated that the record clearly shows that the mujahidin regularly imprisoned, tortured, and executed members of the population, including school teachers.

The record also showed that the mujahidin also maintained prisons in refugee camps in Pakistan, where Afghanis were held.

The court went on to find that it was plausible that Nasseri was tracked down in India and that she did have a well-founded fear of future persecution.

Persky: The Ninth Circuit reversed the district court’s decision upon review, finding that the record did not support the BIA’s conclusion. How did you get the Ninth Circuit to reverse the lower court’s decision?

Wood: In oral argument and in the briefs, I argued that the IJ’s and the BIA’s decisions were wrong in so far as they found it was improbable that what Nasseri testified to was correct. I asserted that the declaration was credible and that all the supporting documents must lead to the conclusion that Nasseri suffered persecution and torture at the hands of the Mujahidin and that the same fate would meet up with her in the future if she were to return to Afghanistan. The Ninth Circuit stated that the BIA was wrong in discrediting Nasseri’s testimony and further stating that she met her burden and that the evidence of probable persecution was “overwhelming.”

Persky: Why was Nasseri arrested by the mujahidin rebels?

Wood: Nasseri was an outspoken person in favor of pro-women’s rights in Afghanistan. As such, she was viewed as an opponent of the fundamentalist mujahidin. For this reason, among others, she was tracked down and, if captured, would be persecuted

Persky: What role did the fact that Nasseri was a female teacher play in her case?

Wood: Her role as a female teacher would cause the mujahidin to believe she was an enemy to their cause. They used violent means to suppress any opposition, and Nasseri would become their victim.

Persky: How did Nasseri get out of Afghanistan?

Wood: Overland by foot to India.

Persky: Was she safe in India?

Wood: She was definitely not safe in India, and this was one of the main arguments in the case.

Persky: Do you see any similarities between the events that happened to Nasseri in 1990 and 1991 and what you have encountered in recent cases from Afghanistan?

Wood: There are many similarities between this case and what is happening now in Afghanistan. People who served the U.S. Armed Forces in Afghanistan during the last 20 years are now being hunted down, threatened, and in some cases killed by members of the Taliban. In particular, women who do not conform to the Taliban’s orders regarding dress code and stay at home orders are also being tracked down and in some cases raped and sometimes killed.

Also, I see a similar pattern of denying asylum cases from Mexico and the Northern Triangle countries where the IJs and the BIA find that the governments in those countries are trying to combat the ongoing torture, murder, and mutilation of members of their societies, and thus, the cases are denied. Of particular concern are asylum cases from Mexico where the IJs and the BIA repeatedly find that Mexico is trying to combat corruption and use that as an excuse to deny asylum to applicants.

As far as opening the door for women asylum applicants, I believe that the Nasseri opinion remains relevant today. Although she was not fleeing an abusive domestic violence situation, she was fleeing violence directed at her specifically on account of her gender and her pro-women’s rights views. I think this is particularly important in the current environment in U.S. courts. Nasseri is a banner for women’s rights and for the rights of those who would protect those same rights. I believe we are under siege at this moment and that Nasseri’s case remains extremely relevant, both because of the findings on credibility and the advocacy for women’s rights.

I am in possession of letters from the Taliban to some of these people, threatening them with death on account of their prior involvement with the United States. Services include cooking and cleaning as well as translation services and other more high-ranking services as well.

Now that the Taliban is in power, ordinary people in Afghanistan are also at risk if they express any opposition to the Taliban. I am informed that retaliation is quick and brutal and that many such individuals have disappeared.

It remains to be seen how these asylum claims will be adjudicated. It may be especially problematic for those Afghan refugees who were evacuated to third countries, where they languish under terrible conditions while waiting to come to the United States. Hopefully, they will not be found to have “firmly resettled” in such dire circumstances.

A decade after Ms. Nasseri arrived in the United States to seek asylum, then Senate Foreign Relations Committee Chair Joseph Biden argued in favor of U.S. ratification of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) by illustrating the example of women teachers in Afghanistan:

If we need any more graphic illustration of why this treaty is needed for women of the world, I just invite you to come back to Afghanistan with me. I invite you to come back to Afghanistan with me, stand there with the Minister for Women’s Affairs, and observe that even after the liberation, the majority of women are still wearing burkas. Even after this, they are still worried about their future.

As I met with the Minister of Education and the Minister of Women’s Affairs in a building with no heat in the middle of January, I believe, there were a group of women, about 50 or 60, standing out in a big anteroom waiting to see the Ministers. They were all former teachers, and they all had their burkas on, and I said why? Why? And the Minister of Women’s Affairs asked the Minister of Education, whose office we were in, whether or not she could call in one of the women, and explain why she was still wearing a burka.

The woman told a story in English about riding a bus and being accosted by a group of men who demanded to know why she did not wear her burka, because, though the Taliban were gone, the mujahedin were still in Afghanistan. Biden warned during the hearing that if the United States did not set an international standard by ratifying CEDAW, similar events would repeat.2 

1Exclusion and deportation proceedings were replaced by removal proceedings for cases commencing on Apr. 1, 1997. INA §§239, 240, 8 C.F.R. §§1003.12 et seq., 1240.1 et seq. 2Treaty Doc. 96-53; Convention of the Elimination of all Forms of Discrimination Against Women, Adopted by the U.N. General Assembly on December 18, 1979, and Signed on Behalf of the United States of America on July 17, 1980, 107th Cong. 4-5 (2002), https://www. govinfo.gov/content/pkg/CHRG-107shrg80461/pdf/CHRG107shrg80461.pdf. The United States has not yet ratified the treaty.

In-House Insight continued from page 11

at 1574 (2022) (citing Adam Satariano, E.U. Court Strikes Down Trans-Atlantic Data Transfer Pact, N.Y. TIMES (July 16, 2020), https://nyti.ms/393VklG [https://perma.cc/KUZ7-28FE]). 2Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC, art. 25, 2016 O.J. (L 119) 48 [hereinafter GDPR]. 3Ben Wolford, What is the GDPR, the EU’s New Data Protection Law? GDPR. EU., https://gdpr.eu/what-is-gdpr/ (last visited Oct. 22, 2021), 4Julia Hamilton, Data Prot. Comm’r v. Facebook Ireland LTD. and Maximillian Schrems: Shattering the International Privacy Frame Work, 29 Tul. J. Int. Comp. L. 351, 352 (2021) (citing Council Directive 95/46, 1995 O.J. (L 281) 1 (EC)). 5Id. 6GDPR Art. 1; see also Data Protection Overview, DataGuidance (Sept. 2021), https://www.dataguidance.com/notes/gdpr-dataprotection-overview. 7GDPR Art. 4(1). 8GDPR Art. 17. 9GDPR Art. 13(1). 10GDPR Art. 15(2). 11GDPR Art. 16. 12GDPR Art. 12(4). 13EU-Country Commercial Guide, International Trade Administration, https://www.trade.gov/country-commercialguides/eu-data-privacy-and-protection (last visited April 22, 2022); Nina Trentmann, Companies Worry that Spending on GDPR May Not Be Over, Wall St. J. (May, 25, 2018), https://www.wsj.com/ articles/companies-worry-that-spending-on-gdpr-may-not-be-over1527236586<https://www.wsj.com/articles/companies-worry-thatspending-on-gdpr-may-not-be-over-1527236586. 14The CJEU’s Schrems Ruling on the Safe Harbour Decision, European Parliament (Oct. 2015), https://www.europarl.europa.eu/ thinktank/en/document/EPRS_ATA(2015)569050. 1550 USCA § 1881a (West). 16Id. 17See Exec. Order No. 12,333, 3 C.F.R. 200 (1981), reprinted in 50 U.S.C. § 401 (1982); C-311/18, Data Prot. Comm’r v. Facebook Ir., Ltd., 2020 E.C.R. 559, ¶¶60-63 (herein “Schrems II”). 18Statement of FTC Chairwoman Edith Ramirez on EUU.S. Privacy Shield Framework, Federal Trade Commission (Feb. 29, 2016), https://www.ftc.gov/news-events/pressreleases/2016/02/statement-ftc-chairwoman-edith-ramirezeu-us-privacy-shield-0. 19C-362/14, Schrems v. Data Prot. Comm’r (Schrems I), ECLI:EU:C:2015:650. ¶ 28-30. 20Id. at 106-107. 21See Schrems II ¶180.: Case C-311/18, Data Protection Commissioner v. Facebook Ireland Ltd., ECLI: EU:C:2020:559 (July 16, 2020), 134 Harv. L. Rev. 1567, at 1574 (2022). 22PPD-28: Signals Intelligence Activities (Jan. 17, 2014). 23Schrems II, at 181. 24Id. at 148-149. 25Trishla Ostwal, Why Marketers Should Care About the Latest Transatlantic Data Deal, ADWEEK (Feb. 28, 2022), https://www. adweek.com/media/marketers-should-care-about-the-latesttransatlantic-data-deal/; GDPR Art 46(2). 26Schrems II,at . ¶¶ 116-121, 128, 131, 134. 27Id. at 121, 126-129, 134. 28Case C-311/18, Data Protection Commissioner v. Facebook Ireland Ltd., ECLI: EU:C:2020:559 (July 16, 2020), 134 Harv. L. Rev. 1567, at 1574 (2022). 29European Commission and United States Joint Statement on Trans-Atlantic Data Privacy Framework, European Commission (March 25, 2022). 30Trans-Atlantic Privacy Shield Fact Sheet, European Commission (Mar. 25, 2022), https://ec.europa.eu/commission/presscorner/ detail/en/FS_22_2100. 31“Privacy Shield 2.0?”- First Reaction by Max Schrems NYOB (Mar. 25, 2022), https://noyb.eu/en/privacy-shield-20-first-reaction-maxschrems. 32Information on US Privacy Safeguards Relevant to SCCs and Other EU Legal Bases for EU-U.S. Data Transfers after Schrems I, at 6 Dep’t of Just., Off. of Dir. of Nat’l Intel. (Sept. 2020), https://www.commerce.gov/sites/default/files/2020-09/ SCCsWhitePaperFORMATTEDFINAL508COMPLIANT.PDF. 33European Commission Adopts New Tools for Safe Exchanges, European Commission: Press Release (June 4, 2021), https:// ec.europa.eu/commission/presscorner/detail/en/ip_21_2847. 34Id. 35Binding Corporate Rules, The General Data Protection Regulation, PricewaterhouseCoopers, at 1, https://www.pwc.com/m1/en/ publications/documents/pwc-binding-corporate-rules-gdpr.pdf. 36GDPR, Recital 110. 37Id. 38GDPR Art. 4. 39Binding Corporate Rules, The General Data Protection Regulation, PricewaterhouseCoopers, at 1 40Id. 41GDPR Art. 47(1). 42GDRP Art. 47(2). 43Under Article 83(5). 44GDPR Enforcement Tracker, CMS, https://www. enforcementtracker.com/?insights (last visited Feb. 25, 2022). 45Id. 46Sam Shead, Meta Says It May Shut Down Facebook and Instagram in Europe Over Data-Sharing Dispute, CNBC (Feb. 7, 2022); Meta Platforms, Inc., Annual Report (Form 10-K) 7 (Feb. 2, 2022).