Almost a year ago, I drew this cartoon. The subject was abused women who apply for asylum in the United States; Janet Reno changed the US’s asylum rules to include battered women, but left office before finalizing her changes, and Ashcroft was considering changing them back. The particular case at issue was the case of Rodi Alvarado, a woman fleeing an abusive husband in Guatimala.
At the time, I wrote “Of course, the administration hasn’t officially made its decision yet; it could be that they’ll decide to be humane, in which case this cartoon will be wrongheaded and a bit embarrassing. But that’s some egg I’d be pleased to have to wipe off my face.”
It’s too soon to know for sure, but it looks possible that I’ll be wiping my face soon. From The New York Times (via Diotima):
Department [of Homeland Security] officials have passed along their recommendations in a 43-page legal brief to Attorney General John Ashcroft, who will make the final decision. The officials have urged Mr. Ashcroft to allow the department to put in place rules governing such cases and have called for Rodi Alvarado Peña of Guatemala, whose case gave rise to the recommendations, to be granted asylum.
Justice Department officials say Mr. Ashcroft is still considering the issue, which has been roiling the immigration courts since a small but growing number of such cases began appearing in the 1990’s. Some Justice Department officials indicated that Mr. Ashcroft had initially opposed such rules, but a former senior administration official familiar with the issue said he believed that Mr. Ashcroft would approve the proposal, given the considerable pressure from conservative groups and the Homeland Security Department.
More than 36 Democrats in Congress, as well as leaders of conservative-minded groups like Concerned Women for America, and World Relief, an arm of the National Association of Evangelicals, have urged government officials to rule in favor of Mrs. Alvarado and women like her. [Feminist and lefty groups have also been speaking out about this – and have been doing so for years – but you’d never know that from reading the Times story. -Amp]
That’s great news. And – wonder of wonders – I agree with the Concerned Women for America, who wrote Ashcroft that giving “refuge to such a woman as this is exactly what our asylum policy exists for, and to turn her away would be an act of pointless cruelty.” Exactly right.
It’s nice as well that some Conservative groups are on the right side of this issue; with this administration, the pressure from Conservative groups is the pressure that counts.
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I wrote what I thought was a pretty good post on this issue last year, so I’ll be all self-promoty and stick in a link to it here..
Although I can see the emotional appeal of the measure, it does not really fit within the existing legal framework for asylum. In order to receive asylum, one must demonstrate that one qualifies for refugee status by establishing that he is “an alien who is unable or unwilling to return to his home country ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'” Castellano-Chacon v. I.N.S., 341 F.3d 533, 541 (6th Cir. 2003) (quoting relevant statute). Any regulation promulgated by an executive branch office must, of course, fit within the existing statutory framework. See generally Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
The proposed battered women measure is premised on the notion that they are a “particular social group,” which stretches that term of art beyond any legally useful meaning. See Gomez v. I.N.S., 947 F.2d 660, 663-64 (2d Cir. 1991) (“The phrase ‘particular social group’ has been defined to encompass ‘a collection of people closely affiliated with each other, who are actuated by some common impulse or interest.’ A particular social group is comprised of individuals who possess some fundamental characteristic in common which serves to distinguish them in the eyes of a persecutor—or in the eyes of the outside world in general.”) (internal citations omitted). “Possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular group.” Id.
That is, if “particular social group” is broad enough to encompass battered women, then it is so broad as to effectively include any proposed group (e.g., battered or neglected children, the poor, the homeless). This would effectively turn asylum law into a sort of international welfare program. It’s not that these cases are not sympathetic, but the battered women proposal does not comport with asylum law’s historical raison d’etre. Asylum law exists to allow entry of those who are subject to governmental persecution or who are victimized by governmental sanction of persecution by private actors. Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir. 1993). This is a standard that battered women will, on a whole, seldom meet. Cf. Ali v. Reno, 237 F.3d 591, 598 (6th Cir. 2001) (denying such an asylum claim but noting that, under the Convention Aginst Torture, “a situation in which the authorities ignore or consent to severe domestic violence” might lend itself to an asylum claim).
The foregoing observation concerning the necessity of the complicity of the government highlights why battered women in particular really do not qualify for asylum on the basis of battering. As the Board of Immigration Appeals put it:
Mazariegos v. Office of U.S. Attorney General, 241 F.3d 1320, 1325 (11th Cir. 2001) (quoting B.I.A.) (emphasis added).
The persecution faced by battered women can in no meaningful sense be portrayed as country-wide. The persecution at issue is the result of a single individual: the victim’s spouse. Domestic violence is an issue that can and should be addressed internally by the country of origin not by immigration policy. If one embraces your position, Ampersand, I can see little reason why a substantial portion of the world’s female population would not be eligible for asylum. Given our own country’s manifest inability to fully deal with our own internal domestic violence problems, it might be inadvisable to attempt to solve the remainder of the world’s similar difficulties.
I really enjoy reading your posts. However, I have one very very nit-picky thing to correct (sorry!): Guatemala is spelled w/ an “e” not an “i”.
Thanks!
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