NEW YORK -- They were two young women living alone and in fear in Albania, where they say they were ripe targets for sex traffickers notorious for kidnapping their victims and forcing them into prostitution in other countries.
Both fled to the United States, and now appeals courts in Chicago and New York are confronting a vexing question about their fate: Should their claim that all young single women living alone in Albania face persecution qualify them for asylum?
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So far their answer is no.
But a recent 2-to-1 ruling by the federal appeals panel in Chicago led the remaining judges on the 7th U.S. Circuit Court of Appeals to vacate the decision and stage a rare hearing of the full court Thursday to consider the issue.
The close scrutiny by the judges is appropriate, says Simona Agnolucci, a lawyer who submitted legal papers on behalf of the Center for Gender & Refugee Studies in San Francisco.
"It's modern slavery," she said. "These characteristics -- their gender, their youth, and their singlehood -- are what put them at risk in Albanian society and in the world at large."
She wrote to the 7th Circuit that the issue is relevant beyond Albania's borders, since "women worldwide are subjected to trafficking and forced prostitution because of their gender."
Although fewer than 10,000 asylum applications were granted from 1990 through 1993, they have ranged between 20,000 and 30,000 in the last decade, with about 25,000 being granted in 2011. The number of Algerian applicants granted asylum has fallen from 894 in 2002 to 156 in 2012. Also, the United States settled 56,000 refugees into the U.S. in 2011, with nearly 17,000 Burmese refugees from Thailand and Malaysia, 9,388 from Iraq, 2,032 from Iran and 7,685 from Somalia.
To win asylum in the United States, someone who has fled another country must establish a well-founded fear of persecution based on religion, race, nationality, political opinion or membership in a particular social group. Appropriately defining a social group is where the Albanian women have fallen short in the courts' eyes.
The 6th U.S. Circuit Court of Appeals in Cincinnati in 2005 rejected claims almost identical to those now being made. That court ruled that if a group eligible for asylum is defined "simply as young, attractive Albanian women -- then virtually any young Albanian woman who possesses the subjective criterion of being `attractive' would be eligible for asylum in the United States."
The opinion was cited on Tuesday when the 2nd U.S. Circuit Court of Appeals rejected the claims of a young Albanian woman who entered the U.S. in December 2004 with a fake Italian passport. She later sought asylum on grounds that the Albanian mafia had twice tried to kidnap and force her into prostitution and that she feared she, like her sister and cousin, would be kidnapped and killed in Albania.
Scott A. Keillor, an immigration lawyer in Ypsilanti, Mich., who argued the 6th Circuit case, said his client was forced to return to Albania. He said the last he heard, she was trying to return to the United States.
"My case sadly gets cited a lot," Keillor said.
Keillor said U.S. asylum laws seem arbitrary.
"There's a lot of black and white, you fit into a category or you don't. They say: `Well that's not a particular social group that can be readily identifiable,"' he said.
At Thursday's hearing in Chicago, Judge Richard A. Posner asked Cleveland attorney Scott E. Bratton why weak men in prison or people living in dangerous neighborhoods with high murder rates would not constitute social groups for asylum purposes.
Bratton, who represents Johana Cece, a 33-year-old Aurora, Ill., woman in the Chicago case, said the number of women in Albania who would be in danger similar to his client was relatively small because there were not many single young women living alone in the country with a population of 2.8 million. He said his client would not comment publicly. She did not return a phone message for comment.
In court papers, he and other lawyers cited similar asylum cases, such as classes of young women who are threatened with female genital mutilation, women who escaped servitude after being abducted by the Revolutionary Armed Forces of Colombia or FARC, women in Jordan who flouted repressive moral norms and faced a high risk of honor killing and women in Cameroon who feared circumcision.
Andrew MacLachlan, a Justice Department lawyer in the Office of Immigration Litigation, told the 7th Circuit that Cece was essentially seeking asylum because of her fear of persecution.
"Under the particular circumstances of this case, the validity of the social group proposed by the petitioner would eviscerate the asylum statute," he said.