Chris McGreal, Guardian (Manchester), July 24, 2009
The Obama administration has moved to grant political asylum to foreign women who suffer severe physical or sexual abuse from which they are unable to escape because it is part of the culture of their own countries.
The decision, made evident in a court case involving a battered women from Mexico, ends years of dispute over the issue which saw the Bush administration stall moves toward recognising domestic violence as legitimate grounds for asylum made during Bill Clinton’s tenure.
The department of homeland security has told an immigration court that it regards the woman, identified only as 42-year-old LR, as potentially having grounds to apply for political asylum because she feared she would be murdered by her common-law husband who repeatedly raped her at gunpoint and tried to burn her alive when he discovered she was pregnant.
Karen Musalo, a lawyer and director of the Centre for Gender and Refugee Studies at the University of California who is representing a second woman involved in a similar asylum case, said that the move is a significant shift in policy that opens the way for physically and sexually abused women to seek the same protection that those fleeing female genital mutilation are already offered.
“There has been so much controversy and back and forth on this over many years. This finally opens the door to these women to seek protection,” she said.
But women who apply for asylum will still face significant obstacles.
“These are not easy cases to prove,” said Musalo. “LR must prove that in Mexico violence against women is pervasive and that there is a societal perception that this is acceptable. Then she has to prove that the Mexican government is unable or unwilling to protect her, and on top of that she has to show that there is nowhere in Mexico where she can be safe from her abusers.”
LR stands a good chance of meeting the criteria. According to court papers, her husband, who seduced her when he was her physical education teacher at school, forced her to have sex by holding a gun or machete to her head. He broke her nose on one occasion and, when he discovered she was pregnant, doused her bed with kerosene as she was sleeping and set it alight.
But when she reported the assaults to the police they dismissed them as a “private matter”. A judge she appealed to for help attempted to seduce her.
“In Mexico, men believe they have a right to abuse their women because they are like a possession,” LR said in the court submission.
The struggle to have domestic violence categorised as grounds for asylum has long centred on another women, Rody Alvarado from Guatemala, who has been represented by Musalo.
For many years, the US government said battered women did not qualify because they could not show persecution on specific grounds such as race or political opinion. That position was eroded in 1996 in a key ruling over female genital mutilation.
Until then the courts held that the women were victims of cultural oppression and that was not grounds for asylum because they were not members of a persecuted group under US law.
“The harm that women suffer is often a harm that is a cultural norm or accepted within a culture or required by the religion and so some adjudicators had taken the position that can’t be persecution as required by refugee law because it’s a cultural or religious requirement,” said Musalo. “Female genital cutting fell in to that category but the board of immigration said it doesn’t matter that it’s a cultural rite–if it’s a violation of human rights and objectively an egregious harm, it’s persecution.”
Opposition to admitting battered women has in part come from politicians who argue that it will open the floodgates. Musalo said similar objections were made over the admission of women fleeing female genital mutilation.
But, she said, there was not significant increase in claims. More than 29,000 people won asylum in the US last year on a variety of grounds.