New Asylum Rules

[Soxy]

I've been closely following this story...Hopefully Ashcroft decides favorably in the cases for these women--then we will be on par with Britain, Australia and Canada...Sounds like the chances are pretty good; but who knows. I think it's time for this change to be made.

 

Ashcroft Weighing Granting of Asylum to Abused Women

 

March 11, 2004

By RACHEL L. SWARNS

New York Times

 

WASHINGTON, March 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 hope.

 

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 women.

 

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.

 

Department officials 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.

 

Justice Department 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."

 

"Things are 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

asylum.

 

Government lawyers 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.

 

"Under established 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 rule favorably.

 

"With conservative 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.

 

Immigration officials 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."

[DBAHO]

I'm actually not too sure about the laws we currently have concerning asylum seekers that hav been abused, althoguh we do get quite a lot of asylum seekers trying to sneak into country from the North. It was used as an election issue in the last federal election we had, when asylum seekrs began jumping off boats when they were refused access into the Australia.

[Soxy]

The article cites Australia as allowing asylum based on gender based persecution--and down under you tend to be a fairly progressive. I would imagine both you and NZ have the law like that. I'm really hoping this goes through; like the article mentions it won't affect huge numbers of asylum seekers--but it would mean a lot to those women that did get it. Here's a chance for old Johnny to redeem himself a bit in my eyes.

[DBAHO]

Yeah I think both da Kiwi's and us do hav that law in existence at the moment obviously. These are our other current immigration laws,

 

According to Australian immigration law, a person who tries to enter Australia without a visa or travel documents is in the country illegally (unlawfully) and is termed "illegal entrant", "unauthorised arrival" or "unlawful arrival".

 

There are three categories of unlawful immigration; the first is arrival by air without proper documentation or visa; the second arrival by sea without proper documentation or visa and; thirdly the overstaying or breaching of visa requirements.

 

A person seeking asylum in Australia must apply to an office of the Department of Immigration and Multicultural Affairs (DIMA). After an application for a protection visa has been made, DIMA assesses the person's claim as a refugee against the definition set out in the 1951 UN Convention.

 

After a thorough evaluation of the persons' background and the human rights situation in his/her home country, DIMA decides whether or not to grant a protection visa (PV). The decision is also subject to a character assessment and health examination.

 

Where an application is refused, a person can seek a merits review of that decision from an independent tribunal - either the Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal (AAT), depending on the basis for refusal.

 

Protection visa applicants rejected by the RRT (and who have no other legal reason to be in Australia) have 28 days to depart Australia. After that the person may be deported.

[Texsox]

On the surface, this is such an easy decision. The only concern I have is somehow establishing a bar of abuse that must be crossed over. Is a nasty remark enough? A solitary push? One punch? One beating? Hours, Days, Weeks, Months, Years of abuse? My God the thought of deciding how much abuse a person should endure before being granted asylum is so surreal.