LEGAL HUBRIS

By William Fisher

Shortly before he left office, former Attorney General John Ashcroft told employees at the Department of Justice (DOJ) that America is “a freer nation than before because our families can live peacefully in their communities, our wives, daughters and mothers can travel the streets safely, and our children are turning away from illegal drugs.”

But it would be difficult to convince Rodi Alvarado that she is “freer”.

Mrs. Alvarado is a Guatemalan refugee who is at the center of a 10-year debate over whether battered women can successfully gain asylum in the U.S. Her case had been in the hands of Mr. Ashcroft, who said two years ago he would decide her fate. But just before he stepped down, he passed the responsibility to his successor, Alberto Gonzales, former White House Counsel.

Ashcroft decided neither to grant nor deny asylum to Alvarado. He said a decision should await new regulations from the Department of Homeland Security (DHS), which supervises most immigration matters. The DHS says its new regulations would make domestic abuse a valid legal basis for asylum-seekers. The government started working on such regulations many years ago, long before the DHS was created.

The DHS says it will not press for Mrs. Alvarado’s deportation regardless of how much longer it may take the agency to finalize the new regulations. Meanwhile, Mrs. Alvarado remains in legal limbo. Though she can remain in the U.S., that is only a partial victory since she cannot be reunited with her children, who remain in Guatemala.

Mrs. Alvarado’s husband, a former soldier in the Guatemalan military, brutally beat her over a period of 10 years while the Guatemalan police and courts ignored her repeated attempts to get help. When she ran away, her husband found her and beat her unconscious. Finally, in 1995, she fled to the U.S. in search of safety. She now works as a housekeeper at a convent in San Francisco.

Mrs. Alvarado’s case has created a firestorm of bipartisan criticism of U.S. Government immigration policies. Advocates for women and immigration rights had hoped Alvarado's situation would already have led to a change in U.S. policy to recognize asylum cases filed by victims of domestic violence. Clinton Administration Attorney General Janet Reno proposed such a change in her final hours in office in 2001.

With the change in administrations and the Sept. 11, 2001, attacks, the proposal languished. Opponents have said new asylum rules would lead to a surge in claims, an assertion disputed by advocates.

Under U.S. law, asylum applicants have to show they can't go home because they face persecution because of religion, race, nationality, political opinion or membership in a particular social group. The regulation proposed by Reno would have allowed battered women to be considered members of a social group.

The Harvard Law School’s Immigration and Refugee Clinic Women’s Refugee Project, which filed a ‘friend of the court’ brief in the Alvarado case, said, “While we are disappointed that Attorney General Ashcroft did not follow the full recommendation of the Department of Homeland Security, and grant Mrs. Alvarado permanent asylum as he absolutely should have, we are encouraged that a basic regulatory framework -- at least in proposed form -- has been established which may allow for a principled approach to this issue." Nancy Kelly and Deborah Anker of Harvard said in a joint statement. "It is critical that women victims of violence be treated fairly and evenhandedly under U.S. law."

A coalition of organizations signed the Women Refugees Project's amicus brief and have supported Alvarado's efforts to obtain asylum. These organizations include the Center for Refugee Studies, Human Rights First and the Family Violence Prevention Fund, as well as Amnesty International-USA, the National Immigration, the Project of the National Lawyers Guild, the Women's Commission for Refugee Women & Children, and the Women’s Division of Human Rights Watch.

The Refugee Project says there is broad, bipartisan support for granting asylum to Alvarado, including from many conservative organizations and Republican
officeholders such as Concerned Women for America, World Relief, and U.S.
Republican Senators Sam Brownback of Kansas, Mike DeWine of Ohio, and Susan Collins and Olympia Snow of Maine.

Mrs. Alvarado’s case could well be complicated by political environment created by the ongoing congressional controversy over immigration and asylum. Last week, the House of Representatives passed the so-called REAL I.D. act. The bill would block states from issuing driver's licenses to illegal immigrants, restrict asylum , and complete a controversial border fence between San Diego, California, and Tijuana, Mexico. The White House said in a policy statement issued hours before debate began that the bill would "strengthen the ability of the United States to protect against terrorist entry into and activities within the United States."

But immigration advocates, groups supporting civil and privacy rights, and state government organizations opposed the bill. They said it would make it harder for those fleeing persecution to seek asylum in this country and would endanger public safety and national security by denying driver's licenses to millions of illegal immigrants.

The REAL-ID bill now goes to the U.S. Senate, where it is likely to face stiff bipartisan opposition. Sensenbrenner introduced a similar bill in the last session of Congress as part of the intelligence reorganization legislation designed to implement the recommendations of the 9/11 Commission, but immigration provisions were largely stripped from the final bill by the Senate as a compromise to assure passage of the broader legislation.