Investigating Histories of Gender Discrimination in U.S. Immigration Law

Immigration laws in the U.S. have historically discriminated against women by rendering their citizenship dependent on their husbands, establishing gender-based standards for conferring citizenship to children, and failing to recognize gender-based asylum claims (Olivares, 419). Though recent legislative reforms and Supreme Court decisions have eliminated explicit genderbased classifications in immigration laws, implicit forms of discrimination remain embedded in many U.S. immigration laws and policies. Seemingly gender-neutral immigration laws continue to produce distinct, gendered pathways to immigration for men and women that reinforce traditional gender roles by making female immigrants dependent on their male spouses and relatives (International Organization for Migration). Removing implicit biases against women in U.S. immigration and asylum law will require policies and reforms that consider the different social and economic obstacles facing men and women in an effort to promote the independence and safety of female immigrants and validate gender-based asylum claims.

To understand how implicit biases against women became ingrained in U.S. immigration laws, it is necessary to examine the history of overt discrimination against women in immigration and asylum law. Early immigration laws in the U.S. explicitly discriminated against women by utilizing the legal doctrine of coverture. Under coverture laws, a woman's ability to immigrate to the U.S., become a naturalized citizen, and retain natural-born citizenship was dependent on her husband’s citizenship status. The 1855 Naturalization Act automatically granted citizenship to foreign women who married U.S. citizen men while providing no automatic path to citizenship for foreign men who married U.S. citizen women. Coverture continued to shape immigration law into the early 1920s, even as the doctrine became less prominent in other areas of law in the late nineteenth century. The persistence of the coverture doctrine was exemplified by the Expatriation Act of 1907 that expatriated American women who married foreigners and the Immigration Act of 1917 that made it more difficult for women who were U.S. citizens to petition on behalf of their foreign husbands for citizenship. The Expatriation Act stripped natural-born female citizens of their citizenship status if they married men who were ineligible for citizenship. The Immigration Act made U.S. citizen women who married men from Asian countries completely ineligible to petition for their citizenship. It imposed literacy tests on the direct family members of female petitioners while exempting the direct family members of male petitioners from these same literacy tests. It took until the passage of the 1922 Cable Act for the explicitly discriminatory provisions of the Naturalization and Expatriation Acts to be partially revoked (Olvarez, 425). The Immigration and Nationality Act of 1952 (INA), which is the basis for most U.S. immigration laws today, was designed to mitigate the lingering influences of coverture in immigration law by introducing gender-neutral language (Olvarez, 425). Though the INA used the

term “spouse” instead of “husband” and “wife,” it contained several gender-based classifications influenced by pervasive gender stereotypes. For instance, Section 309 of the INA only grants citizenship to children of unmarried U.S. citizen fathers and noncitizen mothers if the father proves paternity of the child and provides a written guarantee of financial support before the child turns eighteen. There is no comparable requirement for children of unmarried U.S. citizen mothers and noncitizen fathers (Equality Now). The INA also required unwed citizen fathers to have physically lived in the U.S. for ten years prior to a child’s birth to transmit citizenship to that child. An unwed citizen mother, however, only had to live in the country for one year to confer citizenship to her child (Stuzzieri, 1147). These gender-based classifications stem from traditional beliefs about women being the proper caregivers for their children and men being absent and uninterested in the lives of their nonmarital children (Sessions v. Morales-Santana). The INA also incorporated a family-based immigration visa petitioning process that required the U.S. citizen spouse to petition for their foreign spouse’s immigration status. Though the policy’s language is gender-neutral, most primary petitioners are men and the petitioning process renders many women reliant on their male spouses or family members to obtain citizenship (Olivares). While some of these policies seem to benefit women by placing less stringent requirements on unwed citizen mothers than unwed citizen fathers, they rely on traditional gender stereotypes about the role of mothers and fathers in raising children and can render women and their children’s citizenship status dependent on a citizen spouse or father. The gender-based classifications in the INA were upheld by several U.S. Supreme Court decisions because gender-based classifications in immigration cases do not require the same level of scrutiny as gender-based classifications in other areas of U.S. law. This is partially because immigration law is governed by the plenary power of Congress. The plenary power doctrine allows Congress to make distinctions among immigrants that would be unconstitutional if applied to citizens (Epps). For this reason, many complaints of gender discrimination in immigration law focus on discrimination against the citizen parent rather than the petitioning non-citizen child. The U.S. Supreme Court considered an equal protection challenge to gender-based classifications within the INA for the first time in 1977. Ramon Fiallo and two other sets of unwed fathers and their children challenged a section of the INA that defined a “child” as “an unmarried person under 21 years of age who is a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate child seeking preference by virtue of his relationship with his natural mother” (Fiallo v. Bell, 789). This definition effectively excluded the relationship between an unwed citizen father and his child from the special preference immigration status offered to children of unwed citizen mothers. The plaintiffs argued that these provisions were unconstitutional because they denied them equal protection under the laws by discriminating against unwed citizen fathers and their children without a compelling justification. They also claimed that the statute violated their right to due process by assuming an “absence of strong psychological and economic ties between natural fathers and their children born out of wedlock” (Fiallo v. Bell, 791). The Supreme Court upheld the constitutionality of the gender classifications on the basis that Congress’s power to regulate immigration was “largely immune from judicial control” and there was no need for greater

judicial scrutiny than the ordinary scrutiny typically applied to immigration cases (Fiallo v. Bell, 787).

In 1998, the U.S. Supreme Court once again upheld the constitutionality of gender classifications when it ruled that the INA’s requirement that an unwed citizen father provide proofof-paternity before the child’s eighteenth birthday was constitutional (Miller v. Albright, 445). The plaintiff in the case, Lorelyn Penera Miller, was the child of an unwed citizen father and noncitizen mother. Miller challenged the proof-of-paternity requirement on the basis that it violated her father’s Fifth Amendment right to equal protection by applying suspect gender classifications without justification. The Supreme Court found that the statute was subject only to rational basis scrutiny because it was based on biological differences between men and women rather than gender stereotypes (422). The Court argued that these biological differences provide a relevant basis for differing immigration rules since a mother’s relationship to her child is “verifiable by birth” in a way that the father’s relationship is not. The Court ultimately ruled that the statute was constitutional because it advanced the government’s interest in ensuring a reliable and healthy biological relationship between an unwed citizen father and his child (Miller v. Albright, 420). The U.S. Supreme Court finally struck down the overt gender-based classifications in the immigration code in 2017 when it ruled that it was unconstitutional for the INA to impose different U.S. residency requirements on unmarried citizen mothers and unmarried citizen fathers (Sessions v. Morales-Santana, 1701). The case was brought by Luis Morales-Santana, the son of an unwed U.S. citizen father and non-citizen mother, who faced deportation after several criminal convictions. Morales-Santana asserted his U.S. citizenship at birth based on the citizenship of his father, a U.S. citizen who had accepted parental responsibility of Morales-Santana before his eighteenth birthday. However, the father fell short of the five-year physical presence requirement of the INA by 20 days, meaning that he could not confer citizenship to his son. Morales-Santana claimed that the INA’s different residency requirements based on gender violated his father’s right to equal protection because unwed citizen fathers had a five-year residency requirement while unwed mothers only had a one-year residency requirement (1686). In the majority opinion authored by Justice Ginsburg, the Supreme Court ruled that the gender-based classification in the INA was subject to heightened scrutiny because the idea that the unwed mother is the natural guardian of a child is based on stereotypes about women’s domestic role in society. The Court struck down the different residency requirements as unconstitutional because they did not find an “exceedingly persuasive justification” for the rule. Until Congress determined the proper residency requirement for unwed mothers and fathers, the Court decided the five-year residency requirement should be applied to all unwed parents (1701). Though explicit gender-based classifications in immigration law were determined to be unconstitutional in the Sessions v. Morales-Santana case, implicit biases against women are still present in many U.S. immigration laws. Women make up slightly more than half of the total number of immigrants residing in the U.S., but their typical path to legal immigration differs from that of men (International Organization for Migration, 60). Men make up the majority of employment-based immigration visas while women make up the majority of family-sponsored

immigration visas (Department of Homeland Security, 9). While many women do obtain employment visas, they do so largely through a family relationship with a male primary beneficiary. This disparity can largely be attributed to the fact that employment-based immigration favors highly skilled workers with advanced education and wealth, but women around the world tend to have fewer educational and career opportunities than men. The definition of skilled labor is also biased towards male-dominated fields and excludes female-dominated careers like childcare and housekeeping (Fitzpatrick, 25). For instance, the H-1B visa program (which grants legal status to highly skilled temporary foreign workers) has a strong bias in favor of men working in high-tech fields. While the Department of Homeland Security has repeatedly denied requests to release information about the gender distribution of H-1B visas, the employees of the outsourcing companies that receive the majority of H-1B visas are 85% male (Parker). This inability to obtain employment-based visas renders many immigrant women dependent on their male family members and excludes them from the legal job market. Women who enter the U.S. on a familybased immigration visa often have to wait years to obtain permission to work or establish their permanent residence status apart from their male sponsor due to immigration processing backlogs (Legal Momentum 2020). This inability to work or establish legal residency independent of a male sponsor perpetuates the traditional idea that the man should be the primary breadwinner of the family and renders immigrant women completely dependent on men. It also puts women at higher risk of experiencing physical or mental abuse because their legal and financial dependency on male family members can trap them in abusive relationships (Salcido and Menjivar, 335-68). Several seemingly gender-neutral laws from the end of the twentieth century have contributed to the overwhelming dependency of female immigrants on their male family members. The 1986 Immigration Reform and Control Act (IRCA) strictly prohibited employers from hiring undocumented workers while also granting legal status to large numbers of undocumented immigrants engaged in agricultural labor. The statute disproportionately benefited men in maledominant agricultural industries while cracking down on undocumented women working in childcare and housekeeping (Olivares, 428). The law also did not provide derivative benefits for immediate family members of eligible agricultural workers, which resulted in an increase in undocumented female immigrants who wanted to live with their family members (Fitzpatrick, 31). This meant that an increasing number of undocumented women entered the U.S. without the ability to legally obtain a job, rendering them completely dependent on the income of their male sponsor. The Immigration Marriage Fraud Amendments (IMFA) of 1986 were passed out of legislative concern that fraudulent marriages were occurring simply for immigration benefits. The IMFA created a petitioning process in which the foreign spouse was restricted to conditional residency for a two-year period before obtaining permanent residency status. This meant that for two years, the foreign spouse was completely dependent on the petitioning spouse who could revoke support for their immigration petition at any time. The IMFA forced many immigrant domestic violence victims to continue to endure abuse or risk losing their legal immigration status. The 1994 Violence Against Women Act (VAWA) gave certain immigrant victims of domestic abuse the right to self-petition for immigration benefits, but it involved a lengthy application

process with uncertain outcomes that discouraged many victims from self-petitioning (Olivares, 426).

Aside from family and employment-based immigration, women seeking asylum in the U.S. have also faced discrimination due to the reluctance of the Board of Immigration Appeals (BIA) to recognize gender-based persecution. In the Refugee Act of 1980, the U.S. adopted provisions of the UN Convention relating to the Status of Refugees that define a refugee as a person who has suffered persecution in the past or who has a “well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group (PSG), or political opinion” (Anker). Until the late 1990s, asylum seekers fleeing gender-based violence and discrimination were typically denied asylum in the U.S. because they were not considered members of a “particular social group” targeted for persecution. Issues like domestic abuse, female genital mutilation, and rape were largely unrecognized by U.S. asylum law until prominent advocacy organizations like the Harvard Immigration and Refugee Clinic (HIRC) began advocating for asylum seekers fleeing gender-based violence and discrimination. In its 1985 decision in Matter of Acosta, the BIA laid the foundation for future gender-based asylum claims by defining a “particular social group” as a “common, immutable characteristic that members of a group either cannot change or should not be required to change because it is fundamental to their individual identities or consciences” and citing sex as an example (Anker). Despite this definition, the BIA has been inconsistent in its interpretation of gender-based asylum claims. This inconsistency stems in part from the requirement that an asylum seeker demonstrate a “well-founded fear of persecution” which may be interpreted differently by male immigration judges and female asylum seekers (Salcido and Menjívar, 6). The first time the BIA granted an asylum claim on the basis of gender was in the widely publicized 1996 case of Fauziya Kassindja, which became known as the Matter of Kasinga after immigration authorities improperly recorded Kassindja’s name (Musalo, 46). Kassindja applied for political asylum in the U.S. because she feared she would be subject to forced marriage and genital mutilation if she returned to her home country of Togo. Kassindja argued that she was a member of a group of young women in Togo who opposed female genital mutilation and would therefore be singled out for persecution upon return to the country.The first immigration judge that Kassindja appeared before denied her asylum claim, ruling that she was not being singled out since everyone in her tribe was forced to undergo these practices. Kassindja appealed the judge’s decision to the BIA which granted her asylum claim after determining that female genital mutilation is severe enough to constitute persecution and Kassindja was a member of a particular social group defined by gender (McKinnon, 44). However, the BIA did not apply a consistent approach to gender-based asylum cases after ruling on Kassindja’s case. In 1999, the BIA reversed an immigration judge’s decision to grant asylum to Rody Alvarado, a Guatemalan woman fleeing domestic abuse (McKinnon, 19). Alvarado had been subject to threats and violent assaults by her husband and was unable to secure

police protection in Guatemala. She had unsuccessfully attempted to flee from her husband within Guatemala before seeking asylum in the U.S., but he eventually tracked her down and beat her until she was unconscious. The original immigration judge had granted Alvarado asylum on the basis that she suffered past persecution and had a well-founded fear of future persecution at the hands of her husband, whom the Guatemalan government refused to punish. On appeal from the agency formerly known as Immigration and Naturalization Services (INS), the BIA reversed the judge’s decision and denied asylum to Alvarado because she failed to establish that the harm she suffered was the result of membership in a particular social or political group. Alvarado appealed the decision but was not officially granted asylum until 2009, over ten years after she made her original asylum claim (Musalo). In 2014, the BIA issued a landmark decision on domestic abuse and asylum claims in the Matter of A-R-C-G- (Anker). The case involved a mother and her three children who fled her abusive husband in Guatemala after facing several instances of severe physical abuse and sexual assault. The respondent reported the abuse to the Guatemalan police, who refused to interfere in the marital relationship. She also attempted to hide within Guatemala on several occasions, but she was always found by her husband. An immigration judge initially denied her asylum request because he found that the abuse constituted individual criminal acts rather than persecution. On appeal, the BIA granted her request for asylum on the basis that she suffered harm great enough to constitute past persecution because of her membership in a particular social group comprised of “married women in Guatemala who are unable to leave their relationship (See Matter of A-R-CG). The BIA’s decision in the Matter of A-R-C-G- set a precedent that domestic abuse victims who were unable to leave their relationships or secure state protection could qualify for asylum in the U.S

However, on June 11, 2018, in the Matter of A-B, Attorney General Jeff Sessions attempted to put an end to the recognition of domestic abuse as a form of persecution subject to asylum protection. Sessions reversed a grant of asylum to a Salvadoran woman who had fled to the United States after suffering 15 years of domestic violence. In the decision, Sessions revoked the BIA’s ruling in the Matter of A-R-C-G- and announced that claims pertaining to domestic violence should generally no longer be approved (Anker 2020). This decision dealt a major blow not only to asylum seekers but also to the disproportionately female victims of domestic abuse whose struggles are minimized by the failure to hold domestic abuse to the same standards as other forms of persecution. While other areas of immigration law have gradually made progress towards greater gender equality and recognition of the rights of immigrant domestic abuse victims, asylum law has been marked by uncertainty and inconsistency on gender-based asylum claims. This inconsistency has rendered the status of female asylum seekers precarious as changes in political administrations can completely alter the application of asylum laws for women. Though domestic abuse affects both men and women, attempts to separate domestic abuse from persecution disproportionately affect women and ultimately represent an attempt to downplay women’s issues by relegating them to the domestic sphere (McKinnon 2016).

Female immigrants are disproportionately dependent on male sponsors and female asylum seekers are deprived of the ability to escape gender-based persecution due to the implicit forms of discrimination embedded in U.S. immigration law and the BIA’s failure to consistently recognize gender-based asylum claims (Salcido and Menjivar, 6). Though immigration and asylum laws no longer explicitly discriminate against women, the practical application of the laws results in different experiences for men and women seeking legal residence in the US. The social and economic realities of women around the world result in few women having the opportunity to obtain employment-based visas as principal applicants, meaning they primarily enter the U.S. based on sponsorship from male spouses and family members. This dependency reinforces traditional gender stereotypes and makes immigrant women especially vulnerable to domestic abuse and exploitation. Similarly, seemingly gender-neutral asylum laws disadvantage some female asylum seekers because individual immigration judges are free to interpret the definition of a “particular social group” to include or exclude gender-based persecution. To reduce the impact of implicit bias against women in immigration law, policymakers must employ a gender-based analysis of the practical effects of current laws that is grounded in an understanding of the unique challenges and circumstances facing immigrant women. It is not sufficient to have facially neutral laws if they create gendered pathways towards immigration in practice. Though women make up more than half of all immigrants currently residing in the U.S., legislative reforms are needed to address the disproportionate number of female immigrants that are dependent on principal visa holders. Reforms that provide a more affordable and accessible pathway to citizenship for “unskilled” workers (such as domestic care workers) will foster greater independence among female immigrants. A program that grants legal status to undocumented domestic workers (similar to the one provided for agricultural workers through the IMCA) would also benefit undocumented women. For people who immigrate on family-sponsored visas, a simpler and more efficient path towards obtaining a work permit and permanent resident status would help reduce the dependence of female immigrants on their sponsors (Salcido and Menjivar, 2012).

To counter the inconsistency of current asylum laws, a standard principle based on the understanding that violence against women is a form of persecution should be applied to genderbased asylum claims. The precedents set by the BIA in the Matter of Acosta and reaffirmed in the Matter of A-R-C-G- provide guidance on how to approach gender-based asylum cases by defining gender as a particular social group and acknowledging the fact that pervasive domestic abuse is severe enough to constitute persecution.

Significant progress has been made towards gender equality in immigration and asylum law over the past 30 years, but there have also been major setbacks and persistent inequalities in the application of the laws. Legislation that contains gender-neutral language can produce inequalities when policymakers fail to account for the different social and economic circumstances of men and women. To reduce the dependency and uncertainty that characterizes the experiences

of many women who seek legal residency and asylum in the U.S, policymakers should aim to reduce the implicit biases that remain ingrained in U.S. immigration law by considering the lived differences between men and women and establishing violence against women as a form of persecution.

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