The Obama Administration took a step in the right direction this week regarding immigration reform and domestic violence in attempts to reverse Bush's policy (or lack thereof) concerning DV survivors seeking asylum in the U.S.
The action was taken due to the revisiting of the landmark case of Rodi Alvarado (trigger warning), a Guatemalan woman who sought asylum in the U.S. because she feared for her life; her common law husband (who was really more her captor than anything) consistently beat her and raped her at gunpoint, including tried to burn her alive when he found out she was pregnant. Because there was no U.S. asylum law specifying for the protection of DV survivors, she wasn't granted asylum and was forced to leave her children in Guatemala when fleeing to the U.S.
Even as recently as last year, the case was addressed where Bush administration lawyers argued that Alvarado and other survivors could not meet the standards of U.S. asylum. According to the Times:
Any applicant for asylum or refugee status in the United States must demonstrate a "well-founded fear of persecution" because of race, religion, nationality, political opinion or "membership in a particular social group." The extended legal argument has been whether abused women could be part of any social group that would be eligible under those terms.
And Alvarado wasn't a part of any "persecuted group." Right.
Now the administration has submitted an immigration appeals court filing, requesting that Alvarado's case be further reviewed. While this may be a good sign of how Obama plans to handle immigration reform and undocumented women's rights, there are still strict requirements for asylum:
[A]bused women will need to show that they are treated by their abuser as subordinates and little better than property, according to an immigration court filing by the administration, and that domestic abuse is widely tolerated in their country. They must show that they could not find protection from institutions at home or by moving to another place within their own country.
Not to mention the issue of women seeking asylum from genital mutilation is not included in the new policy. But while these "requirements" aren't leaving me with a huge feeling of victory, it's certainly the right step moving forward.
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I'm not defending policies that keep domestic abuse survivors from claiming asylum (of course they should be able to), but just want to point out that that particular definition of persecution is not just found in U.S. law, but is based on the UN's Convention Relating to the Status of Refugees. The Bush administration was perhaps not being very compassionate, but was following international convention.
It would be useful for the UN to take another look at their definition, since it's almost 40 years old, yet is the standard by which pretty much any country that accepts refugees and asylum-seekers judges who can and cannot claim refugee or asylee status.
Oops -- the Convention itself was approved in 1951, with the amended definition (about what "persecution" means) coming in 1967.
But while these "requirements" aren't leaving me with a huge feeling of victory, it's certainly the right step moving forward.
The requirement seems very much in line with asylum law.
Not to mention the issue of women seeking asylum from genital mutilation is not included in the new policy.
It could be that they are not part of the policy because it has already been firmly established as grounds for asylum.
From February 15, 2008">Congressional Research Service: Asylum Law and Female Genital Mutilation: Recent Developments
"Therefore, if an asylum applicant successfully shows a wellfounded fear of FGM if she returns to her home country, that alone would satisfy the wellfounded fear element of an asylum claim."
and
"The Ninth Circuit...analogiz[ed] FGM to forced sterilization, which had been classified as a “continuing harm that renders a petitioner eligible for asylum, without more.” This holding effectively made a showing of FGM sufficient to create an irrebuttable presumption of a well-founded fear of persecution."
damn forgot to close an html tag...
I read about this in the paper this morning. A step in the right direction...I know someone who has a situation like this...hopefully this helps her stay in the U.S. and not have to go back to an abusive and potentially homicidal husband.
I wonder what kind of proof is needed. Is it the same kind of proof that is needed in Muslim countries (videotapes and 4 reliable male witnesses)? I would think leaving your children behind would be a clue that something was terribly wrong.
" ... a 'well-founded fear of persecution' because of race, religion, nationality, political opinion or 'membership in a particular social group.'"
Um, wtf? The EEOC ( http://www.eeoc.gov/ ) recognizes gender as a basis on which discrimination can occur, obviously. U.S. labor history has made it clear enough that women belong to a traditionally oppressed group. Why would asylum laws ignore gender? Not getting it.
Also, what a load of hypocritical B.S. for this country to rail against the poor treatment of women in other countries, e.g., the oft-targeted Middle East, and use it as an excuse for U.S. imperialism, but then simultaneously claim women just aren't treated poorly enough to be granted asylum here. Sorry, womenz. Your stonings and FGM and being almost burned alive by your husbands aren't enough legitimate reasons to want to get away.
"All" you have to do is to prove that there aren't loads of woman-friendly agencies ready to lend a hand.
Similar to what Allegra says, why would someone from a country known for treating women terribly have to "prove" that they couldn't get help in their country? If an Afghan woman reports a rape, chances are that she will be arrested and jailed and even stoned to death. They're arrested and jailed for running away from abusive husbands because there is NOWHERE for them to go. Even their families can't help them because of the patriarchal structure of their society.
Our government doesn't get this? Or it does only when using women as a reason to invade.
"All" you have to do is to prove that there aren't loads of woman-friendly agencies ready to lend a hand.
Similar to what Allegra says, why would someone from a country known for treating women terribly have to "prove" that they couldn't get help in their country? If an Afghan woman reports a rape, chances are that she will be arrested and jailed and even stoned to death. They're arrested and jailed for running away from abusive husbands because there is NOWHERE for them to go. Even their families can't help them because of the patriarchal structure of their society.
Our government doesn't get this? Or it does only when using women as a reason to invade.
The State Department and INS both issue findings on these issues which include the status of human rights for many segments of the population. Therefore wherever the government has already found that there is persecution, the case would be relatively easy. Under these circumstances it would be highly likely that asylum would be granted without the need for a court appearance.
Proof as far as I understand it will more or less boil down to expert testimony, human rights reports, INS findings, or NGOs who work in a related field, as they do for many asylee cases.
Many posters seem skeptical of the government on this one, and I've heard of numerous asylum cases falling through the cracks. However, the requirements for proof which were specified in this case have existed in almost all asylum cases. It does not seem to be a more onerous level of proof designed specifically for this claim for protection. Any problem with the level at which proof is established would lie with asylum cases in general.