Testimony before the Joint Committee on the Judiciary General Court of the Commonwealth of Massachusetts By Professor Dina Francesca Haynes December 1, 2015 My name is Dina Francesca Haynes. I am a Professor of Law at New England Law Boston, where I teach Constitutional Law, Immigration Law, Refugee and Asylum Law and International Women s Human Rights Law. I have worked with refugees and asylum seekers for more than twenty years: for the US government as an attorney for the Department of Justice, as a Protection Officer in the field for the UN High Commissioner for Refugees, as a clinical professor of law at Georgetown Law Center, as a Practitioner in Residence at American University s Washington College of Law, and now, through my Human Rights and Immigration Law Project at New England Law Boston. Over the course of these past two decades, I have worked on hundreds of cases involving women who have a well-founded fear of being themselves subjected to FGM if they are returned to their home country, or hold those fears for their daughters. I have also worked on many cases involving women who have already undergone FGM, but who fear the medical and psychological complications that may arise should they be forced to return to their home countries. Until recently, women seeking asylum in the United States who had not yet been subjected to FGM but who had a well-founded fear of being subjected to FGM in the future had a viable asylum claim, 1 but those who had already undergone the procedure and feared merely the medical, psychological and social complications of returning to the place where the FGM had been undertaken, were not asylum eligible. 1 See In re Kasinga, 21 I. & N. Dec. 357, 365 (B.I.A. June 13, 1996).
Because many asylum practitioners believed this legal reasoning was flawed, I agreed to write an amicus curie brief to the Fourth Circuit Court of Appeals in the case of A. Traore, 2 an asylum applicant, on behalf of hundreds of well-respected medical professionals who opposed this legal dichotomy. Our arguments highlighted the flawed logic which had previously rendered a woman who feared the possibility of FGM asylum eligible, while one who had already suffered from it and who feared the ramifications of poor medical care amidst likely obstetric and gynecological complications due to the past FGM was ineligible. We further pointed out the inconsistencies in the interpretations of the different federal branches of government with regard to the violation of rights: on the one hand the federal government had already enacted law rendering it a crime to carry out FGM in the United States, 3 but on the other hand was unwilling to extend protection to women who had already undergone such a procedure, almost always as minors, and therefore without their legal and often moral consent. The result of the appeal and our accompanying amicus brief was stunning: then Attorney General Holder took the case under direct advisal, reversed the lower court decisions, and changed the law, asserting that our arguments were legally sound and more consistent with the US government position that FGM was rightly condemned both domestically and abroad. 4 From the day of the AG s decision forward, a bona fide claim of either fear or future FGM, or fear based on having been subjected to it in the past are now both valid bases for making an asylum claim. The position of the federal government has thus been expanding with regard to recognizing FGM as a violation of human rights and a ground for a claim of persecution. One question before this Committee today is whether it is therefore advisable for the state to similarly take a legal position with regard to FGM, both protecting the rights of its residents against being subjected to FGM and to create civil and criminal penalties for those who facilitate the practice. As a long time defender of the rights of refugees and asylum seekers, I would assert that the answer to that question is: yes. 2 Brief for American College of Obstetricians and Gynecologists et al., as Amici Curiae Supporting Petitioner, Traore v. Mukasey, No. 07-1814, 272 Fed. Appx. 294 (4th Cir. Apr. 10, 2008) (No. 07-2080). 3 See Act of Sept. 30, 1996, Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended at18 U.S.C. 116 (2012) (amended 2013)). 4 Matter of A--- T---, 24 I. & N. Dec. 617, (A.G. 2008).
The state and its agencies are almost always more proximate, more available to and more knowledgeable about the needs of their own residents than is the federal government. Even when the federal government inserts itself into providing direct client services (refugee protection and services to victims of human trafficking are two good examples of this), it almost always carries out this work by partnering with and funding NGO s with local community ties (Catholic Charities and Lutheran World Services are two examples). I have been asked today, however, not to speak to this issue from the perspective of a defender of refugees and human rights, but as a professor of constitutional law. I therefore I approach the question as follows: when the Constitution of the United States is either silent or otherwise does not prohibit parallel state law, when is it advisable for states to pass such parallel laws? Law: The first way to approach this question is through law. While the Constitution speaks to plenary power and pre-emption, each of which governs when a state may not pass laws that conflict or overlap with federal law, it is silent as to whether a state should pass a law that complements or parallels federal law. Article VI of the Constitution makes federal law the supreme law of the land, notwithstanding the contrary law any state might have. 5 As long as the federal government has not expressly or impliedly pre-empted the states from passing state law where corresponding federal law exists, states may pass such laws as long as federal law has not occupied the field. Recent cases such as US v Arizona demonstrate the viewpoint of the United States Supreme Court that states should not pass state laws where the federal law is plenary, as it is in the arena of immigration and foreign affairs. 6 The broad development of jurisprudence in the United States has created a principle whereby it is understood that states have their greatest power in arenas that most directly impact their residents, predominantly in the areas of health, safety and welfare. 7 Therefore, the state here has a double advantage; the federal government has not expressly or impliedly occupied this territory, and the proposed law deals with an issue squarely among the strongest state powers, impacting as it would the health, safety and welfare of the residents of the state of Massachusetts. Policy: When law is silent, policy arguments are often stronger than legal arguments. 5 U.S. CONST. art. VI, cl. 2. 6 See United States v. Arizona, 132 S. Ct. 2492 (2012) 7 See, e.g., United States v. Lopez, 514 U.S. 549 (1995).
Because state governments and state and local law enforcement are often closer to and more intimately connected with their residents, this connection allows for greater access to local communities, particularly those which are often insular, isolated or less assimilated, such as the likely target population for this proposed law. Thus, state governments often either adopt existing federal law or pass parallel state laws in areas such as family law and health. Access to an otherwise insular population can be particularly important where public information campaigns form a key element of the law in question. In the present instance, the state proposes initiating public information campaigns by accessing the target community through refugee, diaspora, ethnic, and religious organizations. Traditionally, the state is in a better position than the federal government both to gain this sort of access and to maintain it over time. Resources: In certain instances, the federal government has made funding available to states to encourage them to pass and implement complementary state level laws. Human trafficking and the provisions contained within the Trafficking Victim Protection Act (TVPA) 8 and its Reauthorizations 9 are an apt example. In the case of the TVPA, the federal law applies only to federal prosecutions, which are required to be tried in federal courts, by federal prosecutors, and federal benefits, such as T-visas, provided to eligible applicants by the Department of Homeland Security. 10 Where federal resources are stretched or federal priorities are focused elsewhere, cases that might otherwise be considered to violate federal law will go unpunished and victims will go unassisted. Thus, when federal priorities are focused elsewhere and federal resources are stretched, state laws play an important role in providing tools to state law enforcement to respond to harms committed within the state. 8 Trafficking Victims Protection Act of 2000, Pub. L. No. 106 386, 101-13, 114 Stat. 1464, 1466-91 (codified as amended in scattered sections of 8, 18 and 22 U.S.C.) (amended 2013). 9 Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875 (codified as amended in scattered sections of 8, 18 and 22 U.S.C.); Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558 (2006) (codified as amended in scattered sections of 18, 22 and 42 U.S.C.); William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (codified as amended in scattered sections of 6, 8, 18, 22, 28 and 42 U.S.C.); Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54. 10 See Immigration and Nationality Act, 8 U.S.C. 1101 1178 (2012).
Parallel state laws are particularly useful when they harness the closer relationship between a resident and the resources that might prevent the resident from coming to harm, protect that resident from harm or provide her with redress after harm. In the context of human trafficking, which has many parallels to this potential bill, the most useful state laws have been those that expanded their efforts beyond the criminal law and its implementation to focus on victim services, and include, for example, improvements child welfare and public health work that is traditionally done by the state. It is my opinion, particularly given the support from the medical community who are confident that this bill will not cause a public health crisis in which victims fail to seek obstetric and gynecological care, that this bill should be adopted.