Should a victim of domestic violence in another country be granted asylum in the United States - broadening yet again the scope of who finds refuge in the US?
The Bush administration, apparently, doesn't want to answer this tough question. The Department of Justice has been stalling for years over a precedent-setting case, and the administration has been holding back anticipated guidelines which would bring needed clarity to asylum law, and with that, consistent treatment of these cases.
It's easy to understand why. With an estimated 8 to 10 million illegal immigrants in the US, and terrorists eager to enter, the mood is anything but supportive of an expanded definition of who qualifies for asylum protection.
That definition has stretched considerably since it was first set down in the 1951 United Nations Refugee convention. Although the categories of qualifying refugees were broad (those who have a well-founded fear of persecution for their race, religion, nationality, membership in a particular social group, or political opinion), the interpretation was narrow.
In the wake of World War II, the convention was applied mostly to political dissidents in communist nations, or people who risked state persecution should they return home. Now, asylum seekers make claims based on fear of persecution for refusing to join a gang, for instance, or to wear the veil in an Islamic country. Grounds for asylum have evolved beyond state-sponsored persecution.
Throwing a commonplace abuse like domestic violence into the mix raises the "floodgates" question. If the administration comes out with guidelines favorable to victims of domestic violence, will throngs respond? Is it the job of the US to protect everyone in the world from violence?
But there's another legitimate view of this issue. At its core, the Refugee convention relates to human rights, and the world's understanding of that subject has evolved over the decades. In 1993, for instance, the US began recognizing gender-based persecution as grounds for asylum.
Although women aren't specifically named in the five categories of the Convention, the Board of Immigration Appeals has fit them under the "particular social group" heading. Just as people can be persecuted for their race, so can women for being female. As a result, asylum has been granted in cases of female circumcision, honor killings, and forced marriage. Of course, the other statutory standards need to be met - that the woman has already arrived in the US, and can prove that her government won't protect her if she returns home.
Given this precedent, it's hard to set the violence of domestic abuse apart from these other cases. Some argue that, unlike female circumcision, which is culturally sanctioned, and thus difficult to escape, domestic abuse is an individual matter.
But legally, that makes no difference. The key to persecution is whether the state is unable or unwilling to stop it.
In the case bottled up at Justice, Rodi Alvarado sought protection from the Guatemalan police and courts, which refused to intervene in a domestic matter. She was beaten brutally by her husband, and he tracked her down and beat her unconscious when she first fled. Finally, she made it to the US, and in 1996 was granted asylum. But the Immigration and Naturalization Service appealed, and her case is now pending. The Department of Homeland Security (which now includes immigration), has sided with Ms. Alvarado.
An answer to the domestic violence question may lie in today's asylum trends. Millions of illegal immigrants flock into the US to take advantage of lax enforcement, yet that comparison is hard to draw with the relatively low number of asylum seekers: 46,272 claims in 2003, and 11,434 cases granted. The number of seekers has dropped considerably since a peak of 147,430 in 1995. Congress has also tightened asylum requirements.
The administration should issue its guidelines and let Alvarado in. Asylum for domestic violence could raise global awareness of this issue - just as the outcry over female circumcision has begun to have an effect in Africa. But Congress should keep an eye on when and where to draw the line. It can define and undefine categories of refugees. If a torrent of claims erupts, it should act, as should US diplomats to stem the problem at its base.
Asylum law can't become a loophole for the US to take on all the sins of the world.