Change Comes To Asylum Seeking: Obama Adds Domestic Abuse To List Of Valid Reasons

NY Times:

In an unusually protracted and closely watched case, the Obama administration has recommended political asylum for a Guatemalan woman fleeing horrific abuse by her husband, the strongest signal yet that the administration is open to a variety of asylum claims from foreign women facing domestic abuse.

The government’s assent, lawyers said, virtually ensures that the woman, Rody Alvarado Peña, will be allowed to remain in the United States after battling in immigration court since 1995.

Immigration lawyers said the administration had taken a major step toward clarifying a murky area of asylum law and defining the legal grounds on which battered and sexually abused women in foreign countries could seek protection here.

After 14 years of legal indecision, during which several immigration courts and three attorneys general considered Ms. Alvarado’s case, the Department of Homeland Security cleared the way for her in a one-paragraph document filed late Wednesday in immigration court in San Francisco. Ms. Alvarado, the department found, “is eligible for asylum and merits a grant of asylum as a matter of discretion.”

An immigration judge’s order granting the asylum is still required, but Ms. Alvarado’s lawyer, Karen Musalo, said that since the government had raised no new opposition, it was highly likely that the judge would approve her claim.

Ms. Musalo, director of the Center for Gender and Refugee Studies at Hastings College of the Law at the University of California, said Ms. Alvarado’s “has been the iconic case of domestic abuse as a basis for asylum.”

Jayne Fleming, a lawyer specializing in asylum at the San Francisco office of the law firm Reed Smith, called the recommendation “a giant step forward.” Advocates and immigration judges, Ms Fleming said, “now have some pretty solid guidelines from D.H.S.”...

Homeland Security Department officials were cautious in assessing the implications of the administration’s recommendation. The department “continues to view domestic violence as a possible basis for asylum,” a department spokesman, Matthew Chandler, said. But such cases, Mr. Chandler said, continue to depend on the specific abuse. The department is writing regulations to govern claims based on domestic violence, he said ...

The large legal question in the case is whether women who suffer domestic abuse are part of a “particular social group” that has faced persecution, one criteria for asylum claims. In a separate asylum case in April, the Department of Homeland Security pointed to some specific ways that battered women could meet this standard.

In a recent filing, Ms. Alvarado’s lawyers argued that her circumstances met the requirements that the department had outlined in April. Now the department has agreed, in practice making the case a model for other asylum claims.

In a declaration filed recently to bolster Ms. Alvarado’s argument that she was part of a persecuted group in Guatemala, an expert witness, Claudia Paz y Paz Bailey, reported that more than 4,000 women had been killed in domestic violence there in the last decade. These killings, only 2 percent of which have been solved, were so frequent that they earned their own legal term, “femicide,” said Ms. Paz y Paz Bailey, a Guatemalan lawyer. In 2004 Guatemala enacted a law establishing special sanctions for the crime.

“Many times,” she said, violence against Guatemalan women “is not even identified as violence, is not perceived as strange or unusual.”