One Final Alito Post (Really)

As Roger noted a couple of weeks ago, my colleague Nora Demleitner testified on behalf of newly-confirmed Justice Samuel Alito during his confirmation hearings. Nora, a criminal and immigration law expert and a former Alito clerk, has suggested that Alito will be quite progressive on certain immigration law-related issues. Here are some of her further thoughts on Alito’s decision in the Fatin case, which involved a political asylum claim based on fear of gender-based persecution. Her analysis provides a bit more insight into Justice Alito’s thinking about immigration but also on treaty interpretation. It will be interesting to see how this plays out in the next few years.

Why has the Fatin case featured so little in the discussion?

One reason is that it fits poorly into the ideological picture painted of Judge Alito. This is a very progressive opinion on gender-based asylum. In whose interest would it be to discuss it??? Republicans have barely used the case since it wouldn’t play too well with their base, and Democrats have narrowly focused on its holding rather than the overall framework it develops. Ultimately, the panel opinion denied Ms. Fatin her asylum claim since she couldn’t make out a case under the framework Judge Alito developed. In written questions to the Judge, Senator Durbin focused particularly on that point, without acknowledging any of the rationale on which the decision is based.

What did the Fatin case do?

Ms. Fatin was an Iranian asylum-seeker who based her asylum claim, among others, on the argument that she holds Western feminist thoughts that would be unpalatable to Ayatollah Khomeini’s regime. Ms. Fatin claimed asylum based on her political opinion and her membership in a social group. The latter phrase was never defined in the Refugee Convention, and Congress didn’t define it either when it enacted the Refugee Convention into the INA.
Based on BIA decisions, Judge Alito outlined different membership groups based on which Ms. Fatin could possibly claim asylum. He recognized gender itself as a social group. If gender were a social group, it would no longer be necessary to add it as a distinct asylum ground, as many commentators have demanded. However, in most cases women aren’t persecuted solely because they are women. Usually they share some other characteristic, e.g., membership in a minority religion or ethnic group.

Ms. Fatin could not show that the Khomeini government would persecute her based on her gender alone. In fact, she claimed to belong to a narrower group: “‘Iranian women who refuse to conform to the government’s gender-specific laws and social norms.’” The problem with the weak lower court record in this case was that Ms. Fatin had never indicated that she would actually refuse to conform to such laws. Therefore, Judge Alito developed a third membership group: “Iranian women who find their country’s gender-specific laws offensive and do not wish to comply with them.” He found there to be an insufficient showing of persecution as Ms. Fatin hadn’t indicated that compliance with gender-specific laws was so abhorrent to her that it could be called persecution.

Some commentators have argued that Judge Alito set the bar too high, that he would never require such a showing in cases of religious persecution. While that may be true, the issue may be with the category – social group — and the implicit assumptions about it. Judge Alito’s opinion, published in 1993, long before Kasinga, was surprisingly liberal and progressive. It was written by a judge who tried to make the best he could of the lower court record which didn’t give him much to work with. Maybe you can call that judicial activism – but it’s not the type of activism liberals (including myself) usually complain about.

Also note that Judge Alito got a Nixon appointee to sign on to his opinion as well as one of the most respected and thoughtful district court judges in the country, Judge Pollack. One wonders what that may mean for his coalition building on the Court.