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This article was originally published on December 11, 2008.

Over the course of four days in September 2008, then-U.S. Attorney General Michael Mukasey 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 issued two decisions, one positive development related to female genital mutilation (FGM) and one negative development 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.

Female Genital Mutilation as Grounds for Asylum

On Sept. 22, 2008, the Attorney General issued a positive decision welcomed by advocates that effectively ordered the Board to redecide Matter of A-T-. The Board’s decision, now in question, was 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 criticized 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 Alice and her daughter to remain in the United States. As directed by the Attorney General, the Board should correct their mistaken reasoning in the Matter of A-T- decision in order for other women like Alice also to be eligible for asylum in the future.

Domestic Violence as Grounds for Asylum

Three days after his decision in Matter of A-T-, on Sept. 25, 2008, the Attorney General issued a second negative decision widely criticized by advocates that lifted a long-imposed injunction on the Board and ordered the Board to move forward 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 two prior Attorneys General for nine years. The case had been subject to an injunction, awaiting the finalization of regulations that would have provided critically needed guidance to the Board on how to analyze gender-based asylum claims, particularly those based on domestic violence. With his September 25th decision, Attorney General Mukasey ordered the Board to issue a final decision in the case without the benefit of these helpful regulations, instead relying on its own less favorable judicial decisions for precedent to establish ”a uniform standard nationwide.” The Board’s decision in R-A- 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 the domestic violence Ms. Alvarado suffered was not a form of persecution, and because regulations are still not final, advocates are concerned that the new decision will result in a blanket denial of asylum protection to women fleeing domestic violence.

Again, only weeks after the Attorney General issued his 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.

The Board’s new decisions in Matter of A-T- and Matter of R-A- will determine whether Tahirih clients and other women like them who have suffered similar harms will find protection in the United States in 2009. Tahirih is advocating in partnership with other organizations and a broad spectrum of political allies to prevent the regression of gender-based asylum and ensure protection for women and girls who manage to flee the persecution they suffer and demand justice.

Tahirih, for example, is participating in a national working group that works to appeal adverse gender-based asylum decisions and to explore possible legislative remedies to address systemic failures of protection; leading efforts to draft legislation to recognize asylum claims by parents who fear that their daughters will face gender-related persecution on the family’s return to their home country; and creating public education and advocacy materials to build support for gender-based asylum reforms.

Tahirih is also participating in another select national working group to outline and advocate for more general asylum reforms needed to overhaul the system and offer true justice to all those fleeing persecution; other working group members include the UN High Commissioner for Refugees, the Center for Gender and Refugee Studies, the Women’s Refugee Commission, the Hebrew Immigrant Aid Society, and Human Rights First. This working group met with the Transition Team for the new Administration in December 2008 to present its proposals and is preparing materials for legislative outreach to the 111th Congress, as well.

*Names have been changed to protect client safety and privacy.

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