By William Fisher
In what some government critics are citing as an egregious example of public foot-dragging and bureaucratic inefficiency in immigration rule-making, the woman at the center of one of America’s longest-running asylum disputes may now be in further jeopardy.
The case involves the asylum claim of Rodi Alvarado, who fled Guatemala in 1996 after suffering more than a decade of brutal domestic violence in a situation where neither the police nor the courts responded to her pleas for protection.
Professor Karen Musalo, Ms. Alvarado’s long-time attorney and director of the Center for Gender and Refugee Studies at the University of California, Hastings, told IPS that a recent action by U.S. Attorney General Michael Mukasey could actually make Ms. Alvarado’s plight even more tenuous. “It could change the course of protection of women asylum seekers across the country,” she said.
The twists and turns in Ms. Alvarado’s plea for American asylum since she fled to the U.S. place it in the pantheon of the more Byzantine and difficult-to-explain immigration cases.
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. Neither gender nor domestic violence are currently considered grounds for asylum.
In 1996 Ms. Alvarado was granted asylum by an immigration judge in San Francisco. In 1999 the Board of Immigration Appeals (BIA), the highest immigration tribunal in the country, reversed her grant of asylum and ordered her back to Guatemala. This decision mobilized thousands of women’s rights advocates, who successfully persuaded then Attorney General Janet Reno to intervene. Reno proposed a regulation that would have allowed battered women to be considered members of a social group, and thus potentially eligible to be granted asylum.
Reno vacated the BIA’s decision in January 2001, and ordered the BIA to reconsider the case once regulations the Justice Department (DOJ) had proposed in 2000 were finalized.
More than three years passed and no regulations were finalized. In 2004, then Attorney General John Ashcroft took jurisdiction over the case, and ordered lawyers for Ms. Alvarado and the Department of Homeland Security (DHS) to brief the case. Though the DHS itself recommended that Ms. Alvarado be granted asylum, Attorney General Ashcroft did not rule on the case but sent it back to the BIA with the same order that his predecessor Janet Reno had – that the BIA reconsider the case once the regulations proposed in 2000 were issued as final.
With the 2000 election of President George W. Bush, the Sept. 11, 2001 terrorist attacks, and the current and continuing anti-immigration sentiment in the U.S., drafting of new rules languished. Opponents said they would lead to a surge in claims, an assertion disputed by advocates.
Musalo told IPS: "Both the DHS and the DOJ have to reach consensus on the regulations and issue them jointly, since both agencies have jurisdiction over asylum. It is a little kept secret that the delay is due in no small part to the DOJ, which does not agree with the DHS. The DOJ has expressed the position that such claims cannot be recognized. The DHS expressed an opposing position in the brief it filed in February 2004" in the Alvarado case.
The proposed new regulations were generally seen as a positive legal development, which recognized claims such as Ms. Alvarado’s,” Musalo told IPS. But as of today, they have not been issued in final form. Spokespersons for both the DHS and the DOJ declined to comment to IPS on their apparent failure to reach consensus.
The case took yet another arguably more discouraging turn last month. In a surprise move on September 25, Attorney General Mukasey issued a decision ordering the BIA to reconsider the case. In so doing, he removed the requirement that the BIA await the issuance of proposed regulations.
This means that the BIA can immediately begin to consider the Alvarado decision -- as well as many others also on hold awaiting a BIA decision in the Alvarado case.
Musalo told IPS that Mukasey’s removal of the requirement that Reno initially put in, and that Ashcroft also included in his order -- that the BIA should wait to decide the case until the new regulations were finalized – could have serious negative implications for Alvarado. She said that “without the requirement of those regulations, the BIA can just apply its own precedent -- which has been increasingly restrictive. Mukasey said the BIA doesn't have to wait for the new regulations to decide the case -- which is very troubling to us.”
“Though we are glad to see some movement in the case, I am worried that that the current Attorney General is less sympathetic than his predecessors to the protection of women asylum seekers who flee brutal forms of persecution in countries where their governments will not protect them,” she told IPS.
Domestic violence is recognized as a legitimate basis for refugee protection by the United Nations High Commissioner for Refugees, as well as by countries around the world – including Canada, the United Kingdom, Australia and New Zealand; however its acceptance in the U.S. has been controversial.
The DHS says it will not press for Ms. Alvarado's deportation regardless of how much longer it may take the agency to finalize the new regulations. Meanwhile, Ms. 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. For a number of years, she has been working as a housekeeper at a convent in San Francisco.
Mrs. Alvarado's case 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.
The issue of immigration judges has been further complicated by the recent revelations of partisan political influence in the DOJ during the tenure of former Attorney General Alberto Gonzales. One of Gonzales’ key aides, Monica Goodling, testified to Congress that she recommended the appointment of immigration judges based on their conservative political credentials.
Saturday, October 11, 2008
Judge Rebukes Bush -- Again
By William Fisher
In what appears to be another stunning legal rebuke to President George W. Bush’s policies in the “global war on terrorism,” a federal judge has blocked the government from blacklisting a Muslim-oriented charity to give the group a chance to defend itself after its assets were frozen almost three years ago.
In response to a request filed by the American Civil Liberties Union (ACLU), the ACLU of Ohio and several civil rights lawyers on behalf of KindHearts for Charitable Humanitarian Development, Inc., Judge James G. Carr last week blocked the government from branding the organization as a ‘specially designated global terrorist’ "without first affording KindHearts with constitutionally adequate process," including notice and a meaningful opportunity to contest the basis for such a designation.
The judge ruled that the government’s proposed action prior to a judicial review will cause KindHearts to “suffer serious and irreparable injury in the form of loss of reputation and goodwill.”
Hina Shamsi, staff attorney with the ACLU National Security Project, said, "We are gratified that the judge recognized the importance of independent judicial review of the government's actions towards KindHearts. His decision also serves the public's interest in ensuring that government action, including in the name of national security, is subject to the constitutional requirements of due process."
Lawyers for the Ohio-based charity charged that it was effectively shut down without due process – “without notice of the basis for the freeze, hearing, finding of wrongdoing, or meaningful opportunity to respond to the freeze.”
They say the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) froze the group’s assets more than 31 months ago “based simply on the assertion that KindHearts was ‘under investigation’. OFAC has since threatened to brand KindHearts as a ‘specially designated global terrorist’ based on classified evidence, again without providing KindHearts with a reason or meaningful opportunity to defend itself.”
One of the lawyers representing the charity, Professor David Cole, a constitutional law expert at the Georgetown University Law Center, told IPS, "The legal regime employed in the name of cutting off terror financing gives the executive branch a ‘blank check’ to blacklist disfavored individuals and groups, imposes guilt by association, and lacks even minimal attributes of fair process.”
He said, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he says.
Other observers believe that the campaign against charities that conduct programs in Muslim areas is part of a larger suspicion of Arabs and other Muslims. Samer Shehata, professor of Arab Politics at Georgetown University, told IPS that what he termed 'Islamophobia' “produces an environment that is fundamentally at odds with what the U.S. is supposed to be about; our values for treating everyone fairly and not discriminating on the basis of skin color, race, religion, gender, etc.”
He adds, “This is damaging certainly for all Americans and it is also damaging for the reputation of the U.S. overseas. One of the questions I hear the most whenever I am in Egypt and other parts of the Middle East is: how is it like now in the U.S. for Arabs? Have you been the victim of discrimination, bigotry, abuse?”
Since 9/11, the government has shut down dozens of charitable groups, but only three have ever been charged and brought to trial for supporting terrorist causes. None has been convicted.
“OFAC’s authority to shut down a charity based on secret evidence, without any notice of wrongdoing, any probable cause, any opportunity to defend itself or any judicial review violates fundamental due process guarantees,” said Hina Shamsi, staff attorney with the ACLU National Security Project.
“KindHearts is asking for nothing more than its day in court before the government takes the draconian action of unilaterally designating it a terrorist and inflicting irreparable harm on the charity’s most valuable asset, its reputation.”
Under the International Emergency Economic Powers Act (IEEPA) and an executive order, the president assumed the power to impose economic sanctions on any organization or individual he or the Treasury secretary designates a “specially designated global terrorist” (SDGT). A provision of the Patriot Act goes further and authorizes OFAC to freeze an organization’s assets without designating it an SDGT or even finding any wrongdoing.
According to the ACLU’s complaint, both the authority to designate SDGTs and to freeze assets “pending investigation” violate the First, Fourth and Fifth Amendments because they give the government the virtually unfettered ability to shut down an organization even if it has no intent to engage in or support criminal activity.
The organization’s lawyers claim KindHearts’ founders established the charity in 2002 – after the government shut down a number of Muslim charities – with the express purpose of providing humanitarian aid abroad and at home in the United States in full compliance with the law.
“Since its assets were frozen more than two and a half years ago, KindHearts has repeatedly asked the government for the legal and factual basis for OFAC’s actions and for a meaningful chance to defend itself,” said Fritz Byers, an Ohio attorney on the case. “The government’s failure to respond has left KindHearts in limbo, unable to fulfill its humanitarian mission. It is in the interest not only of KindHearts, but also the public, for there to be independent judicial scrutiny of the government’s actions in this case.”
In what appears to be another stunning legal rebuke to President George W. Bush’s policies in the “global war on terrorism,” a federal judge has blocked the government from blacklisting a Muslim-oriented charity to give the group a chance to defend itself after its assets were frozen almost three years ago.
In response to a request filed by the American Civil Liberties Union (ACLU), the ACLU of Ohio and several civil rights lawyers on behalf of KindHearts for Charitable Humanitarian Development, Inc., Judge James G. Carr last week blocked the government from branding the organization as a ‘specially designated global terrorist’ "without first affording KindHearts with constitutionally adequate process," including notice and a meaningful opportunity to contest the basis for such a designation.
The judge ruled that the government’s proposed action prior to a judicial review will cause KindHearts to “suffer serious and irreparable injury in the form of loss of reputation and goodwill.”
Hina Shamsi, staff attorney with the ACLU National Security Project, said, "We are gratified that the judge recognized the importance of independent judicial review of the government's actions towards KindHearts. His decision also serves the public's interest in ensuring that government action, including in the name of national security, is subject to the constitutional requirements of due process."
Lawyers for the Ohio-based charity charged that it was effectively shut down without due process – “without notice of the basis for the freeze, hearing, finding of wrongdoing, or meaningful opportunity to respond to the freeze.”
They say the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) froze the group’s assets more than 31 months ago “based simply on the assertion that KindHearts was ‘under investigation’. OFAC has since threatened to brand KindHearts as a ‘specially designated global terrorist’ based on classified evidence, again without providing KindHearts with a reason or meaningful opportunity to defend itself.”
One of the lawyers representing the charity, Professor David Cole, a constitutional law expert at the Georgetown University Law Center, told IPS, "The legal regime employed in the name of cutting off terror financing gives the executive branch a ‘blank check’ to blacklist disfavored individuals and groups, imposes guilt by association, and lacks even minimal attributes of fair process.”
He said, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he says.
Other observers believe that the campaign against charities that conduct programs in Muslim areas is part of a larger suspicion of Arabs and other Muslims. Samer Shehata, professor of Arab Politics at Georgetown University, told IPS that what he termed 'Islamophobia' “produces an environment that is fundamentally at odds with what the U.S. is supposed to be about; our values for treating everyone fairly and not discriminating on the basis of skin color, race, religion, gender, etc.”
He adds, “This is damaging certainly for all Americans and it is also damaging for the reputation of the U.S. overseas. One of the questions I hear the most whenever I am in Egypt and other parts of the Middle East is: how is it like now in the U.S. for Arabs? Have you been the victim of discrimination, bigotry, abuse?”
Since 9/11, the government has shut down dozens of charitable groups, but only three have ever been charged and brought to trial for supporting terrorist causes. None has been convicted.
“OFAC’s authority to shut down a charity based on secret evidence, without any notice of wrongdoing, any probable cause, any opportunity to defend itself or any judicial review violates fundamental due process guarantees,” said Hina Shamsi, staff attorney with the ACLU National Security Project.
“KindHearts is asking for nothing more than its day in court before the government takes the draconian action of unilaterally designating it a terrorist and inflicting irreparable harm on the charity’s most valuable asset, its reputation.”
Under the International Emergency Economic Powers Act (IEEPA) and an executive order, the president assumed the power to impose economic sanctions on any organization or individual he or the Treasury secretary designates a “specially designated global terrorist” (SDGT). A provision of the Patriot Act goes further and authorizes OFAC to freeze an organization’s assets without designating it an SDGT or even finding any wrongdoing.
According to the ACLU’s complaint, both the authority to designate SDGTs and to freeze assets “pending investigation” violate the First, Fourth and Fifth Amendments because they give the government the virtually unfettered ability to shut down an organization even if it has no intent to engage in or support criminal activity.
The organization’s lawyers claim KindHearts’ founders established the charity in 2002 – after the government shut down a number of Muslim charities – with the express purpose of providing humanitarian aid abroad and at home in the United States in full compliance with the law.
“Since its assets were frozen more than two and a half years ago, KindHearts has repeatedly asked the government for the legal and factual basis for OFAC’s actions and for a meaningful chance to defend itself,” said Fritz Byers, an Ohio attorney on the case. “The government’s failure to respond has left KindHearts in limbo, unable to fulfill its humanitarian mission. It is in the interest not only of KindHearts, but also the public, for there to be independent judicial scrutiny of the government’s actions in this case.”
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