Friday, July 31, 2009
Friday, July 17, 2009
DHS Reverse Policy on Asylum Applications for Victims of Domestic Violence
As the New York Times reported July 16, 2009, the Obama Administration, announced in a Supplemental Brief submitted to the Board of Immigration Appeals, a 180 degree reversal from the prior position taken by former Attorney General MuKasey on the question of whether the government recognizes claims for asylum from victims of domestic violence. All of these claims fall under the protection category of "Membership in a Particular Social Group."
The BIA in 1999 issued a precedent decision in Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008), which has not conclusively decided the issue of whether asylum claims can be based upon domestic violence.
However, for the first time, the attorneys for the Department of Homeland Security have articulated two scenarios that they acknowledge would fall within the criteria of a grant of asylum. In the brief submitted to the BIA, the DHS attorney states, "the Department will offer here alternative formulations of 'particular social group' that could, in appropriate cases, qualify aliens for asylum or withholding of removal." Pg. 5.
The government brief continues and holds, "that the particular social group in asylum and withholding claims based on domestic violence is best defined in light of the evidence about how the respondent's abuser and her society perceive her role within the domestic relationship." Pg. 14. DHS puts forward two possible formulations of the social group, "Mexican women in domestic relationships who are unable to leave" or as "Mexican women who are viewed as property by virtue of their positions within a domestic relationship." Id.
The change by the Obama Administration is dramatic and will potentially open the door to women who have suffered domestic violence at the hands of the abusive spouses. Many thanks to Karen Musalo from the Center for Gender and Refugee Studies at UC Hastings School of Law in San Francisco, California.
The BIA in 1999 issued a precedent decision in Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008), which has not conclusively decided the issue of whether asylum claims can be based upon domestic violence.
However, for the first time, the attorneys for the Department of Homeland Security have articulated two scenarios that they acknowledge would fall within the criteria of a grant of asylum. In the brief submitted to the BIA, the DHS attorney states, "the Department will offer here alternative formulations of 'particular social group' that could, in appropriate cases, qualify aliens for asylum or withholding of removal." Pg. 5.
The government brief continues and holds, "that the particular social group in asylum and withholding claims based on domestic violence is best defined in light of the evidence about how the respondent's abuser and her society perceive her role within the domestic relationship." Pg. 14. DHS puts forward two possible formulations of the social group, "Mexican women in domestic relationships who are unable to leave" or as "Mexican women who are viewed as property by virtue of their positions within a domestic relationship." Id.
The change by the Obama Administration is dramatic and will potentially open the door to women who have suffered domestic violence at the hands of the abusive spouses. Many thanks to Karen Musalo from the Center for Gender and Refugee Studies at UC Hastings School of Law in San Francisco, California.
Tuesday, July 14, 2009
VAWA Appeal to Vermont Service Center
Just received notice from the Vermont Service Center that our office's recently submitted I-290 AAO Appeal of a denied VAWA self-petition will be reopened.
No reason given in the notice, but I suspect that it was the argument made that it is not permitted under the statute to use the testimony of the abuser as forming the basis of denying the VAWA claim. This is an impermissible use and constitutes a Breach of Confidentiality under IIRIRA § 384
Furthermore, any breach of these confidentiality laws can be prosecuted under the same statute. “Anyone who willfully uses, publishes, or permits information to be disclosed in violation of this section . . . shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more that $5,000 for each violation.” 8 U.S.C. § 1367(c); IIRAIRA § 384(c).
No reason given in the notice, but I suspect that it was the argument made that it is not permitted under the statute to use the testimony of the abuser as forming the basis of denying the VAWA claim. This is an impermissible use and constitutes a Breach of Confidentiality under IIRIRA § 384
Furthermore, any breach of these confidentiality laws can be prosecuted under the same statute. “Anyone who willfully uses, publishes, or permits information to be disclosed in violation of this section . . . shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more that $5,000 for each violation.” 8 U.S.C. § 1367(c); IIRAIRA § 384(c).
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