Weighs Granting of Asylum to Abused Women
By Rachel L. Swarns
New York Times
March 11, 2004
10 - The first hint of change came without much fanfare or publicity
last month as the Department of Homeland Security quietly proposed
sweeping changes in the handling of political asylum cases. But
as word trickled across the country, dozens of battered women
seeking refuge in the United States felt the first stirrings of
In their home countries,
the women say, the authorities repeatedly ignored them when they
tried to report and escape their abusive partners. The Department
of Homeland Security, which took on the function of the former
Immigration and Naturalization Service, is proposing rules that
would allow for political asylum in such extreme cases, opening
the door to women fleeing countries that condone severe domestic
abuse, genital mutilation and other forms of acute violence against
If approved, the
rules would for the first time recognize severe cases of domestic
violence as equivalent in certain instances to more familiar asylum
cases involving political and religious persecution.
have passed along their recommendations in a 43-page legal brief
to Attorney General John Ashcroft, who will make the final decision.
The officials have urged Mr. Ashcroft to allow the department
to put in place rules governing such cases and have called for
Rodi Alvarado Peña of Guatemala, whose case gave rise to
the recommendations, to be granted asylum.
officials say Mr. Ashcroft is still considering the issue, which
has been roiling the immigration courts since a small but growing
number of such cases began appearing in the 1990's. Some Justice
Department officials indicated that Mr. Ashcroft had initially
opposed such rules, but a former senior administration official
familiar with the issue said he believed that Mr. Ashcroft would
approve the proposal, given the considerable pressure from conservative
groups and the Homeland Security Department.
More than 36 Democrats
in Congress, as well as leaders of conservative-minded groups
like Concerned Women for America, and World Relief, an arm of
the National Association of Evangelicals, have urged government
officials to rule in favor of Mrs. Alvarado and women like her.
Many battered women
are anxiously awaiting the government's final determination. In
California, Mrs. Alvarado, who said she fled an abusive husband
who had dislocated her jawbone and used her head to break windows
and mirrors, said her eyes filled with tears when she learned
that domestic security officials had recommended granting asylum
to women like her. In New York, Zaide Cinto of Mexico, her vision
blurred and her hearing dulled after years of beatings by her
husband, said she shouted, "Yes!"
"I don't know
who makes these decisions, but I think they must have hearts,"
said Mrs. Cinto, who is living in a shelter for the homeless as
she awaits a decision on her petition for political asylum. "Perhaps
they can understand our suffering."
changing," she said hopefully, "not only for me, but
for many people."
The shift in policy
would bring the United States in line with countries like Britain
and Australia, which have been granting asylum in such cases for
several years. Officials say the rules would also give much-needed
guidance to immigration judges who have been issuing contradictory
opinions in dozens of cases.
In 1996, the Board
of Immigration Appeals granted asylum to Fauziya Kassindja, who
said her clitoris would be cut off if she were forced to return
to Togo. The board, the highest administrative court for asylum
cases, agreed that female circumcision was equivalent to more
widely recognized forms of persecution.
But three years later,
the board denied asylum to Mrs. Alvarado. She said she had gone
to the police in Guatemala on five occasions, reporting that her
husband routinely raped and sodomized her, nearly pushed out one
of her eyes and beat her into unconsciousness. The police declined
to investigate, saying it was a domestic matter.
The immigration board
found Mrs. Alvarado's testimony credible and agreed that the abuse
would most likely continue if she returned to Guatemala. But it
concluded that she failed to meet the statutory requirement for
criticized the board's analysis in the Alvarado case, and Janet
Reno, who was attorney general, vacated the decision in January
2001, ordering the board to decide the case after the government
completed regulations allowing victims of domestic violence to
be granted asylum in limited cases.
The rules were never
finished. Bo Cooper, who served as general counsel for the Immigration
and Naturalization Service until it was subsumed by the Department
of Homeland Security last year, called the new recommendations
"very important" and said they would provide a critical
road map for judges and government lawyers.
principles of asylum law, these kinds of cases should be granted,"
Mr. Cooper said. "What they're trying to do is to help bring
some clarity to what has for years been a very unsettled doctrine
in U.S. immigration law."
It is unclear how
Mr. Ashcroft, who decided last year to take up the case, will
rule on the issue. But a former senior administration official
who has been involved in recent discussions of the issue with
lawyers and lobbying groups said he believed Mr. Ashcroft would
women's groups weighing in on this and now homeland security,
the politics of it would be awful for the administration, whether
it's good policy or not," the former administration official
said. "That's going to mean enormous pressure put on Ashcroft
to stay with the proposed regulation. I think he will ultimately
go with it."
The need for clarity
on the issue has become increasingly evident as a small but steady
stream of women press their claims here. Some women, like Mrs.
Alvarado, left their abusive husbands in their home countries
and entered the United States illegally. Other women followed
their husbands to the United States, entering the country illegally
or on visas. They petitioned for asylum when the violence they
had endured at home continued on American soil.
do not know how many of the roughly 250,000 asylum cases awaiting
disposition have been filed by such women, but they believe the
numbers are small. Karen Musalo, director of the Center for Gender
and Refugee Studies at the University of California Hastings College
of the Law, represents Mrs. Alvarado and has tracked about 500
pending gender-asylum cases.
But critics of the
Department of Homeland Security's proposal fear that the new rules
will encourage a flood of frivolous asylum claims from poor women
around the world.
"How can we
provide permanent residency to everyone who is fleeing an unfortunate
domestic or social situation where the government is alleged to
be nonresponsive?" asked Dan Stein of the Federation for
American Immigration Reform, which seeks to limit immigration.
"This is stretching the bounds of common sense."
In its brief, the
Department of Homeland Security counters that the policy will
affect only a "limited number of victims of domestic violence"
who can prove that they meet the strict criteria for asylum seekers.
Asylum seekers must demonstrate a well-founded fear of persecution
on account of race, religion, nationality, political opinion or
membership in a particular social group. For years, advocates
for immigrants have argued that women in certain circumstances
can constitute a particular social group.
Joe D. Whitley, general
counsel for the Homeland Security Department, explained in the
brief that victims of domestic violence seeking asylum should
show that the abuse was "supported by the legal system or
social norms in the country in question."
Mrs. Cinto, who left
Mexico in 2002, said the police there repeatedly ignored the abuse
she suffered. She moved to the United States, and when her husband
continued to beat her here, friends at a local church directed
her to a domestic shelter in New York. Sanctuary for Families,
a nonprofit group that supports victims of domestic violence,
helped her file a petition for asylum last year.
Across the country,
Mrs. Alvarado has been waiting almost a decade for her case to
be decided. She has been separated during that time from her parents
and two children, who still live in Guatemala."It hasn't
been easy," she said. "But I know that if I win my case,
other women like myself are going to be helped."