A 16-year-old Mexican girl who says she endured a lifetime of abuse from her father is not entitled to asylum in the United States under current immigration laws and must be returned home, a federal immigration appeals board ruled last month in overturning a judge's asylum grant.
The June 17 decision by a three-judge Board of Immigration Appeals (BIA) panel demonstrates again the panel's reluctance to read too broadly the laws governing asylum. But some advocates argue that it offers another example of the immigration system's insensitivity toward the special problems of children and women who flee to the United States seeking protection.
The Justice Department in recent years has recognized that both unaccompanied minors and adult women may suffer unique forms of persecution in foreign countries that qualify them for asylum. Just last year, in wrestling with the special circumstances posed by minors, the Immigration and Naturalization Service (INS) adopted guidelines recognizing "the inherent vulnerability of children." Minors, the guidelines state, are often "at the mercy of adults who may inflict harm without viewing it as such, sometimes to such a degree of severity that it may constitute persecution."
An administrative judge, after hearing evidence of domestic abuse in Mexico and the failure of police to address it, granted asylum to the Mexican girl. The judge determined that she was part of a "social group" entitled to protection under U.S. asylum law. The law provides for asylum to be granted only to foreigners who can prove they face persecution in their homelands because of race, religion, political affiliation, national origin or social group.
The appeals panel rejected the judge's determination, although it did not question the girl's account of long-term parental abuse.
The panel decision, which was not published and is not considered a legal precedent, came one week after the full board overturned an asylum grant to Rodi Alvarado Pena, a Guatemalan woman who said she fled to the United States after she was raped and pistol-whipped by her husband. Asylum rights activists say the two rulings undercut the system's ability to protect the vulnerable.
"We now may be entering the dark ages for the adjudication of gender- and aged-based persecution cases," Wendy Young, staff attorney for the Women's Commission for Refugee Women and Children, said last week of the two BIA decisions.
INS officials said last week it is premature to conclude there is a developing trend that restricts the rights of persecuted women and children. The officials, who spoke on condition that they not be named, said that area of the law is complex and outcomes may vary depending on the facts of the case.
The latest decision heightens the controversy over the board's reluctance to add protections for children and women who are victims of domestic violence rather than political, ethnic or religious persecution. The board's action comes as officials in Canada, Britain and other countries have expanded their laws to include such protections, and it cited an earlier BIA decision.
Young said the Justice Department is "sending mixed signals" on the protections it will offer abuse victims. "The department issued gender and children guidelines, but the issues addressed in those guidelines are now being ignored in these decisions," she said.
The Mexican girl, whose name was not revealed in documents reviewed for this report, used a relative's passport to enter the United States last year and was detained in Los Angeles. She told authorities that from the time she was 3 years old her father had beaten her with whips, tree branches, his fists and a hose. The beatings caused her to be knocked unconscious, she said, and left her with scars and a dislocated elbow.
Often, she contended, the beatings occurred when she tried to intervene in beatings her father was inflicting on her mother. She said her mother told her not to turn to the police.
At issue in the recent cases is the extent to which U.S. asylum law--which derives from international agreements reached in Geneva in 1951--protects foreign citizens from persecution. The law offers refuge to people who have a well-founded fear of being persecuted back home because they fall into the five categories.
The new decision highlights the conflicts within the Justice Department over how liberally to interpret asylum law. In 1995, the INS first issued guidelines intended to establish a policy that recognizes forms of persecution suffered specifically by women, including rape and domestic abuse. Guidelines dealing specifically with children were issued in October.
In 1997, the BIA issued a precedent-setting ruling, granting asylum to a Togo woman named Fauziya Kasinga who said she faced female genital mutilation if forced to return home. The BIA determined that she was part of a "social group" of female tribe members who oppose genital mutilation.
But the BIA, in both of its recent rulings, said that it did not interpret the INS guidelines--which are not binding on the BIA--as resolving the issue of whether women or minors could be considered a "social group" entitled to asylum under the law.
In Alvarado's case, the full board refused to identify the social group as women, or even--as the immigration judge had done--as Guatemalan women living under male domination. Officials did not contest Alvarado's testimony that she was raped and beaten unconscious by her husband, and that Guatemalan police would not intervene.
Jane Kroesche, Alvarado's attorney, said this week that she was hoping to persuade Attorney General Janet Reno to intervene and overturn the BIA decision. Such intervention is rare. The law permits the INS commissioner, the BIA board or its chairman to ask for such a review; the attorney general also could undertake the review on her own.
Kroesche also is preparing to appeal to the 9th Circuit Court of Appeals. That circuit covers the westernmost states, and any decision there would cover only that region; Reno, on the other hand, could change policy nationwide.
The Alvarado decision affects all pending asylum cases. Even before the Alvarado case, INS officials had been cautious about granting asylum in domestic violence cases if no additional factors, such as a woman's religion or politics, were involved.
Attorneys representing asylum seekers said they feel discouraged.
"I've got two women with incredibly strong facts whose cases the INS has been sitting on," said Nancy Kelly of Greater Boston Legal Services Corp., who helped write the gender guidelines enacted by the INS. Kelly fears that the Alvarado case "will only make it more difficult to win these cases."
CAPTION: Unlike the Mexican girl, Fauziya Kasinga of Togo gained asylum as part of a "social group" covered by the law.