Is domestic violence cause for US to grant asylum?
Emerging federal policy allows asylum-seekers to request US sanctuary on grounds they are fleeing domestic violence. Humane, or an immigration floodgate?
Leesport, Pa. — Angie didn't know what would happen when she and her family turned themselves in to US border agents after their guide retreated to Mexico and they wandered for three days in the Texas wilderness. She just knew they couldn't go without food and water much longer.
Even after she and two of her sons arrived here, at the Berks Family Shelter Care Facility, the only US immigration detention center that holds families, it took Angie several weeks to realize she could apply for asylum, given her history of domestic violence – and months more to believe that she had a chance of winning it.
Traditionally, the United States grants asylum to people persecuted in their home countries because of their race, religion, nationality, or political beliefs. In the past year, however, women seeking asylum on grounds of domestic violence are starting to win their cases with greater regularity.
"We're seeing a real increase in grant rates for domestic-violence asylum cases. There are a number of judges who feel like they are able to grant these cases that they weren't able to grant before," says Lisa Frydman, senior attorney at the Center for Gender and Refugee Studies in Berkeley, Calif., which tracks gender-based asylum cases. Last year, the center helped a record 650 lawyers handling such cases.
Each year, about 70,000 foreigners – some held in immigration detention centers and some not – request asylum in America, and about 20,000 receive it. Only a few have gained sanctuary on domestic-violence grounds, but a policy shift signaled by the Obama administration is starting to change that. Supporters herald the move as an important assertion of human rights – and critics decry it as opening an irresponsibly wide immigration floodgate.
The groundbreaking case: 'L.R.'
Two events have spurred such asylum applications. First, in April 2009 the Department of Homeland Security (DHS) issued a brief, in response to a federal case, that stipulated what domestic-violence victims must prove to gain asylum.
Second, the asylum applicant in that case, known as L.R., won asylum last August. While asylum seekers who can be classified as members of "a particular social group" have long prevailed, L.R. was the first to win asylum on the grounds of her membership in the groups of "Mexican women in domestic relationships they are unable to leave" and "Mexican women who are viewed as property by virtue of their positions within a domestic relationship."
"This makes the social group identifiable, and that makes a difference" in improving the chances that abused women can win asylum, says Michelle Brane, director of the detention and asylum program for the advocacy group Women's Refugee Commission.
Though the Center for Gender and Refugee Studies has seen an uptick in such cases, Ms. Frydman says the L.R. victory by no means effortlessly paves the way for countless other domestic-violence asylum cases.
That is a concern, however, of the Federation for American Immigration Reform (FAIR) and other immigration-control advocates. The Washington, D.C., public policy group opposes granting domestic-violence victims asylum through their membership in a particular social group, maintaining that the US courts should not interfere in interpersonal relationships that occur in foreign countries.
"There's no doubt that there are great problems for women in other societies, as well as in our society, but it largely befalls on the responsibility of the local authorities to try to eradicate violent practices against them," says Jack Martin, FAIR's special projects director, in a phone interview. "It's very difficult for a judge in the US to arrive at an accurate assessment of that kind of interpersonal situation in a different country."
Policy change hard to quantify
It's hard to quantify what's changed since the Obama policy shift. The government doesn't record asylum grants by gender or claim – only by the applicant's country of origin. (Besides asylum grants, the US admits some 75,000 refugees yearly – people who apply for US entry while in a foreign country that is not their native land.)
Noting that each case is unique, DHS spokesman Matthew Chandler says, "The department continues to view domestic violence as a possible basis for asylum" and is developing guidelines to address such cases.
The best indication of change comes from trends tracked by the Center for Gender and Refugee Studies and anecdotally by cases like Angie's.
Angie asked to be referred to only by a nickname for fear of her ex-boyfriend still in her native Honduras. Shortly after she moved in with him at age 14, she says, he began to beat, torture, and rape her. The abuse worsened after she gave birth to their son. When Angie ran away, her boyfriend found her; she says the police refused her repeated requests for help.
Angie left her two children, the second conceived with another man, with her mother and fled to Mexico in 2006. She married, sneaked across the US border with her husband, settled in North Carolina, and had another son. The family returned to collect Angie's two older boys from Honduras in 2009, stopping in Mexico to leave the baby with her in-laws. Once reunited with her sons, Angie says, they had a near-fatal episode with her machete-wielding ex-boyfriend, and soon after were apprehended as they tried to reenter the US.
The US border patrol deported Angie's husband to Mexico. Because Angie had been in Mexico illegally on an expired tourist visa, she wasn't eligible to go with him. Though married to a Mexican citizen, she had not sought residency in Mexico, a process that takes several years, one of Angie's lawyers, John Rafferty, says.
Border agents opted not to immediately deport her to Honduras after she expressed fear of returning. Instead, they sent her and her older sons to Berks, a red-brick former nursing home that holds up to 84 detainees, mostly single mothers and their children. There, she says, she found common ground with other women.
"Many women there are in a similar situation as me, fleeing domestic abuse or gang violence or both," Angie said through a Spanish translator in a phone interview. Her soft voice became clipped only when speaking her ex-boyfriend's name.
On a recent Tuesday morning at Berks, a visiting lawyer explained asylum possibilities to two detainees, one with a 1-year-old squirming on her lap. Outside the room, Berks's carpeted halls were quiet, save for the distant cries of a toddler.
Asylum granted on secondary claim
Angie and her boys spent six months at Berks as her asylum case progressed. Angie's student lawyers presented to the immigration court 400 pages' worth of affidavits from Angie, her mother, sister, and the sister of her ex-boyfriend, in addition to testimony from a Berks psychologist and a medical examiner. They also included analysis of human and women's rights abuses in Honduras.
Angie's case was modeled after the L.R. brief, and the judge entered the brief as evidence in Angie's case, says Mr. Rafferty. But he ultimately denied her placement within the social groups of "Honduran women who are unable to leave their domestic relationship" and "Honduran women who are treated like property within a domestic relationship."
The judge said he "would not write new law tonight," says Rafferty. But he did grant Angie asylum in December, citing her political belief that Honduran women should not have to live subordinate to male domination.
Her case speaks to the gray area surrounding domestic-violence asylum cases, which is why her lawyers included the "political beliefs" claim, too. A Board of Immigration Appeals decision reaffirming the L.R. brief could reverse patterns of judges who still hesitate to grant asylum to domestic-violence victims, says Frydman.
That possibility may arise soon, as a handful of domestic-violence asylum cases that were stalled from 2001 to 2008 are set to gain a fresh look in the near future.
Angie now lives in North Carolina and was recently reunited with her youngest child, a US citizen by virtue of his being born in America. Her husband is barred from entering the US for five years because he was deported. Her lawyers are trying to determine if he should have been included in Angie's asylum claim.