US Attorney General Draws Attention to Gender-Based Asylum
A Look Forward to 2009: Recent Decisions Could Affect Women and Girls Fleeing Female Genital Mutilation and Domestic Violence
Over the course of four days in September, the US Attorney General, Michael Mukasey, has opened the door for the Board of Immigration Appeals to fundamentally alter a woman’s ability to claim asylum in the United States based on gender-based persecution. The Board of Immigration Appeals, a part of the Department of Justice and the highest immigration court in the country, is responsible for deciding cases that become the national standard for when someone is eligible for asylum. As the head of the Department of Justice, the Attorney General can direct the Board to refer a case to him, allowing him to hand down his own decision. It is through this process that the Attorney General has issued two decisions, one related to female genital mutilation (FGM) and one related to domestic violence, which are likely to impact the ability of Tahirih’s clients to make asylum claims and to remain in the United States.
On September 22, 2008, the Attorney General issued a decision effectively ordering the Board to redecide Matter of A-T-. The Board’s decision, now in question, is devastating for women who have been victims of FGM. In A-T-, the Board found that a twenty-eight year old woman from Mali was not eligible for asylum based on the FGM, which she had suffered in the past, because the procedure would not be performed on her again in the future. The Board also concluded that the FGM she endured was not related to her fear of being forcibly married to her cousin, if she returned to Mali. The Attorney General ordered the Board to reconsider their decision. In his own decision, the Attorney General chastised the Board and properly concluded that FGM can, and frequently is, performed more than once on a woman and that the harm which an asylum applicant fears in the future does not have to be identical to the harm which she has already suffered.
Recently, Alice*, a Tahirih client, was granted asylum on facts very similar to those in A-T-. Alice, a forty-two year old woman from Burkina Faso, was circumcised first at the age of five in a brutal ceremony. She was taken to a small village with fifty other girls and then held down by four women while she was cut with a scalpel. Alice was cut again when she was fifteen years old. Because of these procedures, she suffered emotional and physical harm, including two miscarriages and two stillborn births, and she feared that her own daughter would fall victim to the same procedure. The US government granted Alice asylum, allowing her and her daughter to remain in the United States. As directed by the Attorney General, the Board should correct their mistakes in the Matter of A-T- decision in order for other women like Alice to also be eligible for asylum in the future.
Three days after his decision in Matter of A-T-, on September 25, 2008, the Attorney General issued a second decision ordering the Board to decide an asylum case based on domestic violence, known as Matter of R-A-. The applicant in that case, Rodi Alvarado Pena, came to the United States from Guatemala fleeing a decade of severe abuse by her husband, a former soldier. In 1999, the Board denied asylum to Ms. Alvarado, and her case has bounced back and forth between the Board and multiple Attorneys General for nine years, awaiting the finalization of regulations that are in favor of gender-based asylum. With his September 25 decision, Attorney General Mukasey ordered the Board to issue a final decision in the case “establishing a uniform standard nationwide.” This decision will determine if and when a woman is eligible for asylum because of domestic violence. Because the Board’s last decision in the case concluded that domestic violence was not a form of persecution, and because the gender-based asylum regulations are still not final, advocates are fearful that the new decision will deny protection to women fleeing domestic violence.
Again, only weeks after the Attorney General issued a decision in R-A-, Marie,* a Tahirih client, had her case granted by an immigration judge on facts nearly identical to those in Ms. Alvarado’s case. Our client, a thirty-six year old woman, also fled more than a decade of abuse in Guatemala by her common law husband who, like Ms. Alvarado’s abuser, was also a former soldier. The immigration judge concluded that the abuse Marie suffered in Guatemala was, in fact, persecution, and granted her case, allowing her to stay in the United States. If the Board follows their previous decision in Matter of R-A-, which the Attorney General’s opinion permits them to do, women like Ms. Alvarado and our client Marie, could be deported to countries where they face unspeakable violence and where their own governments and police will not protect them.
Advocates anticipate that the Board will announce new decisions in Matter of A-T- and Matter of R-A- before the end of the year, determining whether Tahirih clients and other women like them who have suffered female genital mutilation and domestic violence will find protection in the United States in 2009.
*Names have been changed to protect privacy. Photography by Sergio Pessolano
