(Above, Inset: l-r): Marta Victoria Canossa, Ortega, Canossa and Associates, an immigration attorney in Los Angeles; and Blaine Bookey, Legal Director, Center for Gender and Refugee Studies, University of California Hastings College of Law. (Siliconeer/EMS)

 

Whether there is new hope for immigrant women who are seeking asylum in the United States as victims of domestic violence. For many women victims, migration is the main survival strategy but the likelihood of finding protection in the U.S. is lower than ever. Last summer, Attorney General Merrick Garland reversed Trump administration’s decision to close the door to asylum seekers on domestic violence grounds. Has that changed the odds and what are the visa options for abused women in the United States? Speakers – Milagro, a Salvadoran woman who recently won asylum on domestic violence grounds; Marta Victoria Canossa, Ortega, Canossa and Associates, an immigration attorney in Los Angeles; and Blaine Bookey, Legal Director, Center for Gender and Refugee Studies, University of California Hastings College of Law ­­– present their views on whether the attorney general’s decision to reverse the ban, and what are the visa options for asylum seekers at an Ethnic Media Services briefing, Oct. 29.

“Women are subject to gender violence including domestic violence at alarming rates in countries around the world. That has only been exacerbated by the pandemic, and women show up in the United States, at our border, or in the interior, in search of protection,” said Bookey.

Describing what forms of protection are available to women who are fleeing these harms; how do their claims fit in; what were the recent developments of the Trump administration; and now the Biden administration; and some of the obstacles that still remain in these cases, Bookey said, “Fear-based relief or humanitarian protections, stem from the 1980 Refugee Act which established a way for refugees to gain status in the United States, either through our overseas refugee processing program where people can apply for refugee status abroad or our domestic asylum system for those who are at the border, or are already in the United States.
“People may be eligible for asylum if they can show that they have what’s known as a well-founded fear, basically a certain level of fear of harm for reasons of one of these five protected grounds of their race, religion, nationality, political opinion, or membership in a particular social group. This is a very onerous burden for asylum seekers that they have to establish that they have this fear that it’s for a specific reason that their government won’t protect them.

“Since the 90s there has been wide recognition that women’s claims should fit within this broader refugee framework, coming from the UN Refugee Agency directly.”

Many countries including the United States starting in the 1990s adopted guidelines on how women’s claims could fit in with the refugee convention.

“A woman might be harmed because of her political opinion, her feminist views, not to be subject to male domination,” said Bookey.

During the Trump administration, in 2018, Trump’s attorney general Jeff Sessions issued a decision that undid that 2014 precedent and also tried to undermine the availability of asylum for all women fleeing domestic violence.

“The grant rates for asylum seekers from Central America in particular, and Mexico, dropped significantly. This decision did have a huge impact on a lot of people and took the law back to the dark ages, before women’s rights were recognized as human rights,” said Bookey.

A campaign promise made by President Biden, and every other frontrunner for the Democratic nomination, said in their platform that they would restore protections for domestic violence survivors seeking asylum. A major victory was scored in June this year, when Attorney General Garland overturned that earlier precedent, bringing the country back to where the law was before, but a lot has shifted since then.

“We’ve seen many cases where a woman had been denied and her case was up on appeal at the Court of Appeals, where now the Department of Justice is agreeing to send those cases back to the agency for another consideration of their case without this presumption that was established by Jeff Sessions, to deny all of these cases with no individualized consideration. This has had a real impact in people’s lives already,” said Bookey.

The remaining obstacles – is the total politicization of the Immigration Courts – the Trump administration staffed the immigration courts with restrictionist judges, who were almost exclusively prosecutors before, with incredibly high denial rates for women. The second is – lack of access to council for asylum seekers – where people were forced to remain in Mexico while their cases went through. Those cases had an even lower rate of counsel and we’ve seen study after study show that access to council has a huge impact on whether someone can finally get the protection that they deserve because the legal standards are so complicated and the evidence that’s required is also so high. Third – detention – is incredibly traumatizing and very difficult for people to be able to litigate and win their cases from detention, pointed Bookey.

“All of these things are still in place and very much part of the U.S. immigration architecture that keeps people from getting protection. It has a particularly negative impact on women who are seeking asylum, but the most egregious policies of the Trump administration are still being carried out by this administration that are having a huge impact on women and also are just completely cutting off access to the U.S. asylum system for anybody who’s coming to the U.S. seeking safety right now. A recent memo from the Department of Homeland Security   was issued, terminating the MPP program, which will hopefully be upheld and we won’t see this MPP or the remaining Mexico program see the light of day again,” said Bookey.

Canossa, an immigration attorney in Los Angeles, said “as an attorney, what CGRS doing is amazing. Every attorney with a client that is applying for asylum based domestic violence or based on the woman’s inability to leave the relationship because that is how we make our case during these days should be going to Center for Gender and Refugee Studies. They offer something that makes the case stronger.”

For abused women seeking refuge in the United States, their options depend on where the domestic violence occurred. If the domestic violence occurred in their home country, these women have the opportunity to seek asylum withholding or removal or protection of their CAT the Convention Against Torture. The abused women must apply for relief within the first year since they entered the United States for withholding a removal.

Withholding removal is for those who did not apply for asylum within the first year since their entry. This foreign relief has a higher standard, so it is important for immigrants fleeing domestic violence to meet that one-year deadline for asylum, because withholding removal doesn’t take the abused woman to a residency. It doesn’t take them to a citizenship.

“Practically speaking, it is very difficult for an obvious woman to go to an American embassy and request asylum or protection from the United States. Even for those who have family already in the United States. Even for those who have parents already in the United States. Even for those who have applications pending, petitions pending, so this lack of resources at the embassy level contributes to the influx of women representing their claim at the Mexican border,” said Canossa.

When domestic violence occurres inside the United States, women have two main options – they can file a self-petition through VAWA, the Violence Against Women Act.

It also helps men who are abused, it’s not exclusive to women.

For any abused person, VAWA is a very good option but it’s only available to those married to legal permanent residents of the United States or citizens of the United States.

Applicants are not required to have filed a police report, and can support the case with other types of evidence like their own declarations, witness declarations, pictures, text messages.

“If I find a person who’s married to a citizen, was a victim of domestic violence, this would be my first the two-goal type of relief that I would recommend they file for, because it’s much quicker to get new visas and there are no quotas. At this time though, it is taking from 21 to 28 months to get approval for these cases, but for immigration, this is still a good option for clients and what we usually go for because they can also apply for work permit while they wait,” said Canossa.

Milagro, a Salvadoran woman, a victim of abuse, talked about her ordeal and her path to getting an asylum granted by the United States. It took her five years.

Seema Gupta from Siliconeer asked, “So all of this is available only to women or is it independent of the victim sex?”
The answer was a “Yes. It’s available to men as well. There are many cases. So much for asylum, but for VAWA and U-Visa, there have been several cases for men. They get granted if they are supported with evidence,” said Canossa.

When asked if the victims who are waiting on their case judgement get a work permit, Canossa said that in some cases the victims did get work permits, at the discretion of the judge, “It is not fair.”

There’s a strong move to punish women who fight back, or women who want abortion for example, do our speakers feel there’s a strong support for expanding asylum for women victims?

“I think our laws, as they exist now, would protect women in the circumstances that were mentioned, and should protect women,” said Bookey, replying to the question.

“I think there is a movement. At this point, it’s been very slow,” said Canossa.

“We need actually laws. Laws that will be more clear, because right now we’re trying to expand the meaning of a particular social purpose, and what political opinion is, and that skill moves too slowly, because there are forces that are keeping it from moving it, like the government, like when they give up a case, and so we cannot expand the law,” said Canossa.