For domestic violence asylum seekers, new hope in new policies

Blaine Bookey of UC Hastings’ Center for Gender & Refugee Studies explains the law

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In December 2015, a woman named Milagro, living in El Salvador, caught the attention of a violent man. He got her phone number and told her he would kill her grandmother if she didn’t leave her boyfriend and submit to him. Fearing for her grandmother’s life, Milagro took up with the man. That’s when it all started. For several months, she was regularly physically and emotionally abused and tortured. Among the horrors Milagro withstood, she was beaten continuously for four hours, burned with a hot iron and her hands were dislocated.​​

She filed a report with the El Salvador police, but nothing was done. When she couldn’t take it anymore, Milagro escaped and made her way to the United States. But her journey toward refuge has been long and complicated, especially after arriving at the U.S. border and requesting asylum.

Milagro’s story of domestic violence is not new or unusual. Instead, it’s a sad commentary on our society that many of us are familiar with survivors like Milagro. There are also enough dramatizations of partner violence on TV and in movies, including the most recent Netflix drama “Maid,” to drive the point home.

But the added complication for women fleeing domestic violence in their home countries and seeking safety in the United States is that they are then thrown into a vortex of immigration proceedings that are arcane and often confusing, adding to their trauma.

According to Blaine Bookey, legal director of the Center for Gender and Refugee Studies at Hastings College of the Law, there are three types of “fear-based reliefs” that have their origins in the 1980 Refugee Act and the torture convention of the 1990s. Asylum seekers at the border or already in the United States are given U.S. legal status if they can show proof of a “well-founded fear” on the grounds of race, religion, nationality, political opinion or membership in a particular social group. The latter refers to a group of people who share some characteristic that distinguishes them from society at large, including linguistic background or sexual preference. It is important to note that persecution based on gender is not specifically on that list. So most often, women’s claims are retrofitted to the social group category, noted Bookey.

One necessary condition for asylum is that if the persecutor is not affiliated with the government, then the applicant must show that her home government is unwilling or unable to protect her. “This is an onerous burden for asylum seekers to establish,” observed Bookey.

It doesn’t help that the rules for asylum change depending on who occupies the White House.

In 2018, Jeff Sessions, the U.S. attorney general at the time, undid many of the protections in place for women trying to escape gender violence in their home countries.

Bookey explained that Miss A-B, a Salvadoran woman who endured 15 years of brutal domestic violence, initially had been granted asylum, but Sessions reversed the court’s decision. In the Matter of A-B decision, Sessions declared that women escaping domestic violence “generally” should not receive asylum, since it was a “private” matter, rather than a human rights violation, and therefore cannot be grounds for refugee protection. With this reversal, Sessions essentially “refused to recognize that women’s rights are human rights,” commented Bookey.

In June, Attorney General Merrick Garland overturned Sessions’ decision restoring asylum protections for women and others escaping gender and gang violence. The reversal of that 2018 decision means that there will be new consideration of asylum cases with individualized deliberation, said Bookey. “It has had a real impact on individual lives,” she added.

One of the other obstacles to women being granted asylum is the “total politicization of immigrant courts,” said Bookey. The Trump administration stacked the courts with immigration restrictionists who denied asylum claims more often than not.

Take the case of Judge Nathan N. Aina of the San Francisco Immigration Court, appointed in 2016, who heard a total of 233 asylum claims from 2016 to 2020. Of these, he denied 224 claims and granted a mere nine, which is a denial rate of 96.1% and a grant rate of 3.9%. In comparison, the nationwide denial rate at the time was 66.7 percent. And then there’s Judge Valerie A. Burch, also appointed in 2016, who heard a total of 153 asylum claims in San Francisco and denied 96 of them, which works out to about 62.7%, closer to the national average, according to Transactional Records Access Clearing House, a non-partisan project of Syracuse University tracking immigration data. These rates of denial reflect the policies and practices of an immigrant-wary administration.

The good news for Milagro is that after a long legal battle, she was finally able to win her asylum claim in August 2021. She looks forward to a future without violence, she said, gratefully acknowledging the efforts of her lawyer, Marta Victoria Canossa. It was fortuitous that her case was heard last year.

Looking ahead, fixes to asylum regulations are being considered, said Bookey. In his executive order dated Feb. 2, President Biden ordered the Department of Justice and Department of Homeland Security to review policies and issue regulations to ensure that our asylum standards are in line with international treaty obligations. Consequently, efforts are underway to codify and recognize women’s claims under the social group grounds, Bookey explained. But what is harder to reconcile is the meaning of “nexus,” which asks why the asylum seeker in particular was targeted. An applicant must demonstrate that the persecution was because of gender, which can be very difficult to establish.

“Advocates have asked the Biden administration to clarify the meaning of nexus, which has been applied restrictively to deny protection,” Bookey said.

This will make it easier to prove nexus without having to get into the mind of the persecutor, a tough task for anyone who has been brutalized.

Jaya Padmanabhan is a journalist, author and director of programs at Ethnic Media Services. Twitter: @jayapadmanabhan.

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