Asylum Rules for Domestic Violence Survivors Have Languished for Eight Years
United States asylum policy falls short of protecting women fleeing abusive relationships whose own governments have already failed to protect them, Human Rights Watch said today, on International Human Rights Day. Violence by domestic partners is a leading factor in murder rates against women around the globe. Human Rights Watch urged the incoming administration to quickly propose and finalize new rules that would apply international human rights standards in these asylum cases.
This week marks eight years since the US government first proposed rules to clarify that survivors of domestic violence should be eligible for asylum. Since these rules have not been finalized, the United States has no national standard to govern asylum determinations in these cases. As a result, the rulings vary widely, depending on which court hears a case. Some cases have been on hold for years awaiting clarification of national policy.
"After all the misery that survivors of domestic abuse have suffered, the failure to offer them asylum based on international standards puts them at risk of being returned to face anew the very abusers they fled," said Meghan Rhoad, researcher in the women's rights division at Human Rights Watch. "The US needs to make clear once and for all that it will honor these standards."
Studies by the World Health Organization and the United Nations have shown domestic violence to be widespread around the world. Insufficient government regulation and enforcement in many countries offer women inadequate protection against domestic abuse, including marital rape, physical, psychological, and sexual abuse, and, in some cases, murder.
The regulations proposed by the US Department of Justice in December 2000 provide principles for deciding asylum cases that are based on domestic violence, and clarify that gender can form the basis of a "particular social group," one of the five grounds of persecution in determining whether asylum should be provided under the international and US definitions of refugee status. The others are race, religion, nationality, and political opinion.
"In the eight years that these regulations have been pending, domestic violence survivors have faced uncertain futures and the US has fallen behind the international community in addressing gender-based persecution," said Rhoad. "New regulations are needed to ensure that the criteria for asylum do not exclude survivors of state-tolerated domestic violence."
In the most important test case, which has been pending for 10 years, Attorney General Michael Mukasey in September 2008 ordered the Board of Immigration Appeals (BIA) to decide the asylum claim of Rodi Alvarado, who experienced more than 10 years of brutality by her husband in her native Guatemala while her appeals for intervention by the Guatemalan police and courts went unanswered. The BIA is the administrative board that sets precedent for immigration courts around the country.
The board had previously denied Alvarado asylum, but both Attorney General Janet Reno of the Clinton administration and Attorney General John Ashcroft of the Bush administration ordered the board to wait for the new regulations to be finalized and then to reconsider its decision according to those rules. Attorney General Mukasey's order, however, means that the board can reconsider the case without the new regulations, raising concerns that it will again deny Alvarado's claim. This could set a precedent for a number of cases that have been on hold pending a final decision in the case, as well as for future asylum claims brought by survivors of domestic violence.
In September, Attorney General Mukasey also took the positive step of ordering the board to reconsider its decision to deny asylum to a survivor of female genital mutilation (FGM), finding the decision flawed. Human Rights Watch called on the current administration, which has not acted on these guidelines for eight years, not to pursue gender-related asylum cases in its last weeks in office, and on the board not to rule on the Alvarado or FGM cases until new regulations are finalized.
Human Rights Watch urged the Obama administration to promulgate and finalize new regulations on gender-related asylum claims as a matter of priority. In doing so, it should follow the guidance of the United Nations High Commissioner for Refugees and the precedent decision in Matter of Acosta 19 I&N Dec. 211 (1985) on the definition of membership in a particular social group for the purpose of determining refugee status - to recognize that gender is an immutable characteristic that may constitute a particular social group, so that women persecuted in whole or part because of their gender may be eligible for asylum.