U.S. to consider asylum for battered woman (Plea to Ashcroft)

[Whoa_Nelly]

WASHINGTON - The Department of Homeland Security on Thursday asked Attorney General John Ashcroft to grant asylum to a Guatemalan woman who had been repeatedly beaten and raped by her husband for a decade.

The request will determine whether battered women are eligible to receive sanctuary in the United States. The case could have far-reaching repercussions for women who live in countries where domestic violence goes unpunished.

Ashcroft has the authority to allow Rodi Alvarado, 36, to stay in the country and set a precedent for other abused women who come to America seeking refuge.

<snip>
Asylum experts said Homeland Security's endorsement of Alvarado's asylum claim would make it far harder for Ashcroft to reject the plea.

more...
http://www.mercurynews.com/mld/mercurynews/news/politics/7993441.htm

Such mixed-up messages are sent out to women by this Misadministration. Asylum for battered women, but should they get pregnant and seek to have or have an abortion, AssCrack will come after them to put them in prison.

[zbdent]

1. Likely ruling: "If you are pregnant, your fetus will be protected

by the US asylum; you, as the incubator, are just here to insure the safe delivery of the fetus."

[iverglas]

2. Canada does

Sometimes the implementation is problematic, but the principle is accepted.

Press release from the Immigration and Refugee Board, a year ago:
http://www.cisr.gc.ca/en/news/press/2003/0301_e.htm

The Immigration and Refugee Board, A World Leader

OTTAWA, March 4, 2003 — The Chairperson of the Immigration and Refugee Board, Jean-Guy Fleury, is pleased to announce that March 2003, marks the 10th anniversary of the issuance of the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

A decade ago, the IRB was a pioneer in developing Guidelines. Other countries such as the United States, Australia and the United Kingdom used the Canadian model to develop their own guidelines on women asylum claimants fearing gender-related persecution.

“In the spirit of the International Women's Week, these Guidelines acknowledge that women experience different forms of persecution than men, and that they experience it differently. The IRB has contributed greatly to Canada's international reputation as a leader in refugee determination”, said Mr. Fleury.

The Guidelines encourage and promote consistency in dealing with refugee claims made by women fearing gender-related persecution. They were first issued in 1993 by the former IRB Chairperson, Nurjehan Mawani, because of the IRB's conviction that a fair and effective refugee determination system should be gender inclusive and that Guidelines were the best method of achieving that goal.

"Canada was the trail-blazer in developing an asylum process that takes proper account of gender-related persecution. The IRB's Guidelines were the first of their kind, and led other countries to recognize the importance of devoting special attention in their asylum systems to the plight of refugee women", said Ruud Lubbers, United Nations High Commissioner for Refugees.

The Guidelines were the result of a multi-facetted long lasting and continued effort within the IRB to ensure that the IRB decision-making process was reflective of the rights of refugee women.

In the case of a woman abused by a private individual (e.g. spouse), she would still have to meet the test that the authorities of her country of nationality/residence were "unable or unwilling" to protect her, which applies to anyone persecuted by a non-state agent.

The Guidelines are here, for anyone who might want to bookmark them for reference:
http://www.cisr.gc.ca/en/about/guidelines/women_e.htm
(there are no copyright issues for the press release or Guidelines)

The introduction:

UPDATE

The definition of a Convention refugee in the Immigration Act does not include gender as an independent enumerated ground for a well-founded fear of persecution warranting the recognition of Convention refugee status. As a developing area of the law, it has been more widely recognized that gender-related persecution is a form of persecution which can and should be assessed by the Refugee Division panel hearing the claim. Where a woman claims to have a gender-related fear of persecution, the central issue is thus the need to determine the linkage between gender, the feared persecution and one or more of the definition grounds.

<a claimant must have a well-founded fear of persecution on the ground of race, religion, nationality, membership in a particular social group or political opinion>

Most gender-related refugee claims brought forward by women raise four critical issues which these Guidelines seek to address:

1. To what extent can women making a gender-related claim of fear of persecution successfully rely on any one, or a combination, of the five enumerated grounds of the Convention refugee definition?

2.Under what circumstances does sexual violence, or a threat thereof, or any other prejudicial treatment of women constitute persecution as that term is jurisprudentially understood?

3. What are the key evidentiary elements which decision-makers have to look at when considering a gender-related claim?

4. What special problems do women face when called upon to state their claim at refugee determination hearings, particularly when they have had experiences that are difficult and often humiliating to speak about?

...

The guidelines specifically address the problems that women may have in proving the state's inability or unwillingness to protect, in the case of persecution by non-state agents:

2. Decision-makers should consider evidence indicating a failure of state protection if the state or its agents in the claimant's country of origin are unwilling or unable to provide adequate protection from gender-related persecution.24 If the claimant can demonstrate that it was objectively unreasonable for her to seek the protection of her state, then her failure to approach the state for protection will not defeat her claim. Also, the fact that the claimant did or did not seek protection from non-government groups is irrelevant to the assessment of the availability of state protection.25

When considering whether it is objectively unreasonable for the claimant not to have sought the protection of the state, the decision-maker should consider, among other relevant factors, the social, cultural, religious, and economic context in which the claimant finds herself. If, for example, a woman has suffered gender-related persecution in the form of rape, she may be ostracized from her community for seeking protection from the state. Decision-makers should consider this type of information when determining if the claimant should reasonably have sought state protection.

In determining whether the state is willing or able to provide protection to a woman fearing gender-related persecution, decision-makers should consider the fact that the forms of evidence which the claimant might normally provide as "clear and convincing proof" of state inability to protect, will not always be either available or useful in cases of gender-related persecution.

For example, where a gender-related claim involves threats of or actual sexual violence at the hands of government authorities (or at the hands of non-state agents of persecution, where the state is either unwilling or unable to protect), the claimant may have difficulty in substantiating her claim with any "statistical data" on the incidence of sexual violence in her country.

In cases where the claimant cannot rely on the more standard or typical forms of evidence as "clear and convincing proof" of failure of state protection, reference may need to be made to alternative forms of evidence to meet the "clear and convincing" test. Such alternative forms of evidence might include the testimony of women in similar situations where there was a failure of state protection, or the testimony of the claimant herself regarding past personal incidents where state protection did not materialize.

.