Woman from Guatemala Granted Asylum after Years of Domestic Violence and a Seven-Year Immigration Proceeding

Tuesday, July 17, 2012

Department of Homeland Security agrees that women fleeing domestic violence can be eligible for asylum

Los Angeles, CA — An immigration judge in Los Angeles today granted asylum to Ms. N-S-, who fled to the U.S. from Guatemala to escape years of severe physical and sexual abuse by her common-law husband. The grant is a symbolic victory for the hundreds of women who apply for asylum each year after fleeing domestic abuse in their home countries, because the Department of Homeland Security (DHS) agreed that she should be given asylum.

For years, Ms. N-S-‘s husband brutalized her with rapes, beatings, slashing her with a machete, and even shooting her in the legs. She filed police reports, but despite being aware of the severity of the abuse, the police did not respond. Ms. N-S-‘s husband insisted that she was his property, and told her he would kill her if she ever left him. After a particularly severe beating and rape that resulted in a three-day hospitalization, she fled to the U.S.

Daniel Sharp, legal director of the Central American Resource Center (CARECEN) in Los Angeles, represented Ms. N-S-. Mr. Sharp successfully argued that the husband’s severe abuse constituted persecution and that the Guatemalan government was unable or unwilling to protect Ms. N-S-. Mr. Sharp showed that her fear was well-founded, presenting numerous reports showing the pervasive violence and murder of women in Guatemala and documenting that crimes against women there are committed with impunity. Evidence of the severity of the situation for women in Guatemala includes a 2007 condemnation by the U.S House of Representatives calling on the Guatemalan government to address the situation. Mr. Sharp states, “Ms. N-S- is incredibly deserving of the asylum status she was granted today. She endured unthinkable trauma in Guatemala, followed by more than seven years of uncertainty in the U.S. and separation from her children.”

There is nothing in the Immigration and Nationality Act (INA) or its regulations that allows or prevents asylum grants based on domestic violence, and there are no published cases to provide guidance. While some judges grant asylum in DV cases, others are less persuaded, and many explicitly note the lack of guidance. As a consequence, many of these women remain in limbo, with no way to regularize their immigration status.

When Ms. N-S- first filed her application for asylum, DHS argued that she was not eligible. The Immigration Judge agreed and denied her application. Ms. N-S- appealed the denial to the Board of Immigration Appeals (BIA). The BIA, however, in the absence of clear government regulations, has not issued a decision stating whether victims of domestic violence are eligible for asylum. Ms. N-S-‘s case therefore remained pending for years, along with countless other women’s cases, while the Board decided what to do. The only reason her case moved forward is that DHS changed its position and agreed she was eligible for asylum. Ms. N-S- spent years in limbo, away from her children and with her life on hold, because the U.S. government has not made it explicit that victims of domestic violence can be eligible for asylum.

Professor Karen Musalo, director of the Center for Gender & Refugee Studies (CGRS) in San Francisco, states, “Under a proper interpretation of the law, women like Ms. N-S- qualify for asylum.  However judges have been resistant, and it often takes a DHS acknowledgement – as happened in this case – for women to be granted the protection to which they are entitled.”  In a few high-profile cases – including that of Rody Alvarado – who was represented by Prof. Musalo --  DHS has explicitly argued that victims of domestic violence can be eligible for asylum, but without regulations or a precedential decision from the BIA, other women like N-S- will remain in limbo, never knowing when they may be forced to return to a country that cannot protect them.

“DHS agreeing to asylum in this case is a significant victory for Ms. N-S-, but only a symbolic victory for the many other women who have suffered domestic abuse and whose cases still are pending,” Prof. Musalo said. Mr. Sharp of CARECEN noted, “While working towards resolution of this fundamental human rights issue, CARECEN and community-based organizations around the country are grateful for the technical assistance and national leadership of CGRS.”

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The mission of CARECEN is to empower Central Americans by defending human and civil rights, working for social and economic justice and promoting cultural diversity. The vision of CARECEN is for the Los Angeles region to become a place where Central Americans and all other communities can live in peace, with dignity, and enjoy economic well-being, social justice, and political empowerment.

About the Center for Gender & Refugee Studies

The Center for Gender & Refugee Studies protects the fundamental human rights of refugee women, children, LGBTQI individuals, and others who flee persecution in their home countries. CGRS provides legal expertise and training; engages in impact litigation, policy development, research, and in-country fact-finding; and uses international human rights tools to advance refugees’ human rights and address the root causes of their persecution.