BATTERED, RAPED AND VEILED : The New Sanctuary Seekers : WOMEN INCREASINGLY ARE ASKING FOR ASYLUM FROM GENDER-BASED ABUSE, FORCING THE U.S. TO RE-EXAMINE ITS IMMIGRATION POLICY

A short, shy woman of 25 with dark hair, Aminah will not tell me her last name or where she is from. She will only say that she is from West Africa. Initially, she cancels several interviews with me, telling her lawyer she’s sick. The attorney suspects a case of nerves. When we finally do talk by phone, the young African woman speaks softly, hesitatingly. When Aminah (her name and others in her account have been changed) was a child, her father arranged for her to marry Abdul, a man 11 years her senior. Aminah’s mother is from an Islamic tribe that practices arranged marriages. Families promise their daughters to men frequently in exchange for money or property.

Though Aminah’s father died when she was 9, her family felt honor bound to uphold his agreement. Aminah knew nothing about it until, at 14, she was told she couldn’t enter high school because she was to marry. She was shocked--Abdul had stayed at Amihan’s home when he was attending school in her village. She considered him a brother.

“Becoming his wife felt wrong. I didn’t love him,” says the young woman. “I felt and still feel that a marriage should be based on love.” Aminah had seen her sisters enter arranged marriages to men who later physically abused them. Determined to become a lawyer like her uncle, she persuaded her family to delay the marriage so that she could continue school. In 1986, when she was 16, she began seeing a young man named Omar.

A year later, Aminah still refused to marry Abdul, and her mother and sisters began to beat her. “They slapped me with their hands, and when I fought back, they hit met with sticks or shoes,” she says. “Every time they beat me I would miss the next day of school because my body hurt so badly.”

Yet, Aminah went on seeing Omar. “We fell in love and decided we wanted to get married, but we knew my family would never agree,” she says. “While his family would have supported our marriage, within my culture, one family cannot accept a woman into their home without the permission of her family.”

Aminah’s mother took her to the police, who informed Aminah that she must marry Abdul or be incarcerated. But Abdul looked less appealing than ever: he had married. (Polygamy is common in Aminah’s country.) “His wife said he went out at night and drank. He would come back changed and beat her. She said he was an alcoholic,” Aminah says. Horrified, the young woman continued to resist the marriage despite pressure from both her family and the police.

The family grew more outraged when Aminah gave birth to Omar’s daughter in 1989. Aminah gave her to Omar’s family to raise after her mother rejected the baby. “It hurt very badly, but I knew I had to for her own sake,” she says. Aminah’s mother continued to press the marriage to Abdul, finally turning her over to the police.

“I was put in a large cell with other women. Many were prostitutes,” recalls Aminah. “During the day, we were taken in a big truck to the main police station where we were made to clean the toilets.”

Ill and frightened, she gave in to her mother’s wishes. Her family set a wedding date and Abdul delivered money for the dowry. Then, in the summer of 1992, when Aminah’s sister was about to take her to buy a wedding dress, Aminah slipped out of the house with the money intended for the dress. She reached a cousin who helped her get a U.S. visa and bought her a plane ticket to New York.

Last fall, the Immigration and Naturalization Service discovered that Aminah’s visa had expired when she went to pick up a package at the airport. The agency began deportation proceedings. With no children, parents or spouse who are U.S. citizens, Aminah cannot legally stay in the country. But in a hearing this February, Aminah’s lawyer, Nancy Kelly, will ask an immigration judge to grant her client political asylum. Kelly, who works with Harvard Law School’s Women Refugees Project, points out that the African woman’s family abused her with the help of the police and says there is no way Aminah can return to the country.

“If I go back, my mother would make me marry that man. That life would be very hard because he’s abusive,” says Aminah, her voice shaking. “And because I refused him, I know he will take it out on me by hitting me.”

She now lives with her sister in Massachusetts and is looking for a job. She would like to join Omar in Europe but can’t get legal status there because the two never married. If she gets asylum, Aminah can retrieve her daughter from Omar’s family and avoid her family’s demands. “There is no way I can return to the country without my family knowing, and there is no place for me to stay.”

Aminah’s story is incredible, difficult for a westerner to fully comprehend. But does it warrant political asylum? That’s the new question for refugee advocates and immigration officials. Moved by abuses such as the systematic rape of women in Bosnia, and by the fact that more and more women like Aminah are seeking sanctuary because of gender-related problems, authorities have been re-evaluating the experiences women suffer. In 1991, the United Nations High Commissioner for Refugees advised countries to recognize gender-based persecution when it issued guidelines to protect refugee women. The European Parliament has called upon member countries to grant asylum to women persecuted for violating the moral or ethical rules of their societies. Last year, Canada became the first, and thus far the only, country to adopt guidelines that specifically address the claims of female refugees.

Under the Canadian guidelines, women who fear persecution for failing to obey gender-biased laws and those persecuted for opposing discrimination against women are eligible for asylum. But the new definition of political oppression doesn’t stop there. Women who flee domestic violence after authorities fail to help are also eligible, as well as those who refuse to participate in certain traditions, such as arranged marriages and veiling.

“The Canadian guidelines are groundbreaking because they recognize the role gender plays in women’s lives around the world, and their experience of persecution,” says Regan Ralph of the Women’s Rights Project, a watchdog group started by New York-based Human Rights Watch in 1990.

Now the United States is grappling with the issue. Under existing international law, refugees seeking asylum must show a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a social group. In an unprecedented ruling last December, a U.S. appellate court in Philadelphia recognized gender as a social group and feminism as a political opinion under immigration rules. Last spring, the INS agreed to review how its policies affect women after it received a proposal from Harvard’s Women Refugees Project, backed by 36 refugee and human-rights groups. After extensive consultations with such groups and legal experts, the agency plans to issue guidelines covering women’s claims next month. “The idea is to increase sensitivity to women as applicants,” says Gregg Beyer, INS director of asylum.

Asylum as it’s known now developed after World War II in response to the fact that thousands of Jews and others persecuted under the Nazi regime had been denied entry by officials enforcing immigration restrictions. Under the United Nations 1951 Convention Relating to the Status of Refugees and a later protcol in 1967, countries agreed to protect refugees who could prove persecution. Those applying for asylum in the United States must show that they have suffered persecution, not merely random violence, and that the persecution was by government officials or that those authorities were unwilling to intercede, among other criteria.

Because most asylum applicants are male, persecution has been defined almost solely by men’s experiences, which tend to involve public activities such as organizing and demonstrating against the government. While women participate in such activities, they also suffer abuses that men do not, often at the hands of people with no official government connection. Their husbands abuse them and authorities deny help. They are raped or beaten by soldiers who want to terrorize communities or intimidate the women’s politically active husbands. They are incarcerated or beaten in the streets for refusing to follow official mandates they consider sexist, such as veiling. Or, as Aminah’s case, they are abused in the name of custom--arranged marriages, genital mutilation, bride burnings. However, unlike the traditional public acts of oppression, many of these practices are performed not by the state, or an invading army, but by the girls’ own family--mothers, aunts, sisters. They have thus been viewed as personal or cultural, rather than as political matters warranting asylum.

In 1987, Sofia Campos-Guardado was visiting her uncle, who worked in a cooperative formed under El Salvador’s controversial land reform program, when two men and a woman attacked his family. The three killed the men and raped the women while shouting political slogans. When Sofia applied for asylum, a U.S. appellate court in New Orleans denied her request. It ruled that because the attack resulted from her uncle’s political views and not hers, her rape was not political. The rapist’s threats were deemed personal.

“The kinds of things that happen to women, such as rape, genital mutilation and battering, are often not committed by state (officials) and so they’re not considered human-rights issues,” says Pamela Goldberg of the City University of New York Law School at Queens College.

Adds attorney Kelly: “In the past, you’d take a strong women’s case and turn it into a weak man’s case because that fit the way the law was interpreted. Now, we’re trying to show that what happens to women is different but qualifies.”

Meanwhile, scores of refugee women in the United States are waiting for officials to decide their fates. They are hiding, evading deportation, frightened for their lives. Will they tell their stories to the judge? Perhaps. When they do speak, the stories that emerge are portraits of pain steeped in centuries-old discrimination and tradition.

One of the first gender cases to command attention in the west came as Canada was developing its guidelines. Its immigration board had denied asylum to Nada (a pseudonym), who fled Saudi Arabia in 1991 after being beaten by religious police for refusing to veil. Lawyer Marie-Louise Cote appealed her case on humanitarian grounds, launching a massive publicity campaign supported by refugee and women’s groups worldwide. However, Amnesty International’s Canadian branch and the U.N. refugee group in Ottawa refused to back her.

The U.N. group says intervention didn’t appear warranted in Nada’s case.

“Amnesty has a very specific and focused human-rights mandate,” Alex Neve of Amnesty in Canada explains, “and that mandate focuses on detention and detention-related human-rights concerns.

The response is not surprising. Human-rights organizations have only recently begun to focus on women’s issues. Domestic abuse, forced prostitution and bride burning have “been seen as family problems, private problems, accepted as the norm and not challenged,” says Ralph of the Women’s Rights Project.

Immigration Minister Bernard Valcourt rejected Nada’s petition, stating that imposing Canadian values on other countries would be “imperialist” and would open immigration floodgates. But last year, responding to public pressure, he reversed his decision. Two months later, the Immigration and Refugee Board, an independent tribunal, issued the gender guidelines.

Consideration of similar guidelines for the United States comes amid debate over abuses in the asylum program. With nearly 400,000 cases pending, the asylum backlog has skyrocketed, partly because asylum provides a way for people with no other claim for residency to stay in the country. Applicants are generally given a work authorization and allowed to remain until their cases are heard. Appeals can take years. Those denied asylum often stay illegally. Some observers say that gender guidelines will only exacerbate such problems.

“Expanding the definition throws kerosene on an already blazing administrative mess,” says Dan Stein of the Federation for American Immigration Reform, a Washington, D.C. based group that advocates a moratorium on most immigration and has been consulted about the INS guidelines. “When you have 100 million people who tomorrow would love to live in this country, you cannot set up an asylum system with such broad-based criteria without opening (the system) to massive abuse.”

Earlier this year, George High, executive director of the Center for Immigration Studies in Washington, D.C., wrote to INS asylum director Beyer arguing against U.S. development of gender guidelines. “Recognizing that mistreatment of women is a worldwide phenomenon--something by no means limited to the Third World--one can only question whether the advocates of gender-based asylum claims realize the massive claims they are inviting upon the United States,” he protested.

In fact, asylum is a small piece of the immigration pie--145,000 people filed such claims last year, while about 900,000 immigrated legally under other programs. And in its first year with the guidelines, Canada recognized 3509 gender claims. Of these, it decided 150 cases, with 105 granted asylum, including women fleeing arranged marriages, forced sterilizations and sexual violence.

Members of Canada’s immigration board have also ruled for domestic abuse victims in cases where officials failed to protect these women. Advocates discount critics’ fears that U.S. guidelines in this area would open asylum to every abuse victim, noting that women need to clearly demonstrate that authorities failed to protect them.

That critical and difficult-to-prove link was evident in the case of an Ecuadorean woman whose husband repeatedly attacked her. The police had laughed when the woman pleaded for help, saying she must have done something wrong. “There is a vast difference between a matrimonial home and a torture chamber,” the Canadian panel stands in no different situation than a person who has been arrested, detained and beaten because of his political opinions.”

INS officials say they don’t know if their guidelines will include domestic violence, although Beyer says they “have to address government inability or unwillingness to protect women making certain claims.”

It is difficult for many people to view domestic abuse as a basis for asylum, Kelly acknowledges. “It happens so much here that people think it’s not persecution,” she says. “But here, at least theoretically, women have recourse.”

The issue of domestic violence is at the tip of a larger controversy: When do cultural mores become political oppression and who decides?

Nurjehan Mawani, chairwoman of the Canadian tribunal and an immigrant from Kenya with long experience in refugee work, rejects the notion that the Canadian guidelines reflect a form of cultural imperialism. “This is not simply a matter of imposing Western standards on other countries,” she stated in issuing the guidelines. “It is a matter of respecting internationally accepted human-rights standards.”

Female genital mutilation graphically underscores Mawani’s point. The World Health Organization estimates that more than 80 million women and girls, mainly in Africa and Asia, have been genitally mutilated. Though scholars say Islam doesn’t mandate female genital mutilation, adherents of the practice often view it as a moral or religious requirement. It is used to reduce women’s sexuality, to create an appearance of virginity and as a rite of passage for girls. Performed by people with no medical knowledge and with no anesthesia, the mutilation can cause hemorrhaging, infertility and death.

One who survived is Khadra Farah. She applied for political asylum in Canada, fearing that she would lose her two children to her ex-husband if forced to return to her native Somalia, where men automatically retain custody rights. She wants to protect her daughter from the trauma she experienced when she was 8.

“One afternoon,” she attests in her affidavit, “a group of women, including my mother and aunts, gathered at our house so that they could circumcise me and my cousin... I was told that it is a common thing and that it would enhance my chances of getting married to a good man... Two pairs of women grabbed my legs and spread them wide open... Then, another lady started to get a new blade and took the cover off it... I felt the pain and started to scream. She cut off my clitoris with the blade and I screamed more... She continued slicing away my labia minor, at which point I lost consciousness. Subsequently, she scraped raw the walls of my vulva and bound them together with thorns. She placed a stick between the raw walls of my vulva so that I would have barely sufficient means to expel my bodily waste... My legs were left tied together for 10 days... though this event took place over 20 years ago, I can still easily visualize the scene and feel the pain and trauma all over again when I start to talk about it.”

In May, Canada granted Farah’s family asylum. Farah is believed to be the first woman to receive asylum in the West with a claim of genital mutilation, but she is not likely to be the last. Three years ago, the French Commission for Refugee Appeals ruled that the threat of female circumcision could constitute persecution. Beyer says it is “certainly possible” that the INS considerations will address it.

In Portland, Ore., Immigration Judge Kendall WArren in March suspended the deportation of Lydia Oluloro to Nigeria, where she had suffered the same mutilation at age 4, ruling that a threat of mutilation existed for her two U.S. citizen daughters. “Although it attempts to respect the traditions and cultures of other societies, as to this practice the court concludes that it is cruel and serves no known medical purpose,” stated the judge, allowing Oluloro to stay in the country permanently.

Warren’s decision broke new ground but didn’t set a precedent for asylum cases, as another Nigerian named Eunice Deshields recently learned when she asked Warren to reopen her case so she could seek asylum are different, and Warren rejected Deshields’ motion, noting that in asylum cases, one must fear for one’s self, not another. Deshields has appealed, arguing that the threat of mutilation to the daughter can constitute persecution for the mother, a position the U.N. group recently recognized.

Is genital mutilation truly persecution? Oluloro’s attorney says his client initially accepted female genital mutilation as part of her culture, but her views changed as the case developed. Are lawyers discovering fears or developing them? David V. Beebee, district director of the INS Portland office, points out that Deshields made her claim for asylum after her daughter was born--and also after other appeals to stay here failed. He fears her case could encourage women living here illegally to have children so as to shield them from deportation. “I think it’s reasonable to assume to assume that we will see a pattern of behavior develop over time as the genital mutilation argument becomes more widely known. Any illegal alien female from any country that practices genital mutilation (could use it) as a method for staying in the U.S. permanently,” he says.

Stein and other critics of the pending guidelines consider these women and their stories perfect examples of the pitfalls of redefining political oppression.

“What we see here is somewhat quixotic and utopian effort to employ our asylum process to register political objections to broad-based cultural norms and standards with which we disagree,” says Stein. “If the basis of a claim rests on habit, custom and convention in another society, that is not the basis for asylum. There’s no way to limit those kinds of claims. We are not going to change Nigerian cultural norms and standards by letting every woman who fears clitoridectomy not go back to Nigeria. We can’t use immigration to change the world.”

Those who work with refugees seeking asylum consider such fears of widespread abuse of the system unfounded. Even with new INS guidelines, women refugees will still face an almost Darwinian survival process--with only the fittest getting far enough to even make a claim. Often responsible for children, and with few financial resources, women are far less mobile than men; in some countries, they aren’t allowed to travel on their own. Although women compose the majority of the world’s refugees, they constitute only 30% of asylum applicants in the United States.

Once in this country, women seeking asylum face another series of hurdles in the application process. Under the new guidelines, women applicants who have sensitive claims would have female asylum officers and can be interviewed privately. For the first time, all INS officers would receive rape trauma awareness training. But these procedures wouldn’t apply to the immigration courts, which also hear asylum claims in deportation proceedings and are run by the Executive Office of Immigration Review, an agency independent of the INS. With justices in black robes and attorneys serving as cross-examiners, immigration courts can be intimidating. “Women who have been rape victims are being asked to appear at a hearing that is frequently adversarial, often before male examiners who are not sensitive, and tell stories of terrible trauma,” says Stephanie Marks of the New York-based Lawyers Committee for Human Rights, which provides pro bono representation for refugees.

Women raised to be submissive often find the very process of talking to officials daunting. Many fear their families will discover the abuse they suffered--in many cultures rape is still considered the woman’s fault and ruins her chances for marriage. Those who do talk find their manner of communication often misunderstood. The male model for credibility--direct eye contact, a straightforward manner--doesn’t fit rape victims or women taught to be deferential. Female refugees from conservative cultures where women barely speak to unfamiliar men often find it impossible to reveal the graphic details of sexual abuse even the most sensitive male examiners.

The asylum case of a Salvadoran woman named Maria illustrates just how callous the system can be. In 1990, a California counselor recommended that examiners for Maria be female, stating: “Examination must be carried out with the utmost delicacy and understanding to avoid the emotional breakdown of this witness.” The judge declined to substitute himself. Sobbing uncontrollably, Maria testified for three hours with her hands over her face, recounting before a male interpreter, two male attorneys and her husband how she was raped by five Salvadoran guerrillas. The immigration judge clipped his fingernails as she spoke, but granted her asylum.

In Miami, dozens of women are seeking asylum alleging abuse by the Haitian army. Some have recently won their cases. Others have been unable to testify before male judges and face significant credibility problems as they appeal. A 27-year-old Haitian named Marie could barely tell her story to her female attorney. Marie’s husband painted presidential campaign pictures of Jean-Bertrand Aristide. In April, 1992, police abducted him and took turns raping Marie, who was pregnant. “They said, ‘You have a little Aristide inside of you and we should stick our hand in and pull him out,”’ she told attorney Cecilia M. Olavarria last spring. Marie never saw her husband again.

During her interview with Olavarria, Marie became so hysterical that the lawyer had to call a rape hot line for help. But I’ve been told that Marie wants to talk to me and when she arrives at the attorney’s office, she greets me with a hug. She wears a black print dress with a white collar. Her year-old daughter is decked in layers of pink and white lace. Marie leans her head on one shoulder and then another. I mention Haiti. With a sharp jolt, she suddenly collapses forward onto the table, as if struck very hard.

Cradling her head in her arm, she moans: “Every time I remember those things, it hurts.”

The U.S. Coast Guard took Marie to Guantanamo Bay Naval Station after stopping her boat. Haitians there taunted her about the rapes, harassment that continues in Miami. “They ask my boyfriend: ‘What are you going to do with the military’s leftover?”’ groans Marie. “Sometimes I feel like I want to run. I left the baby sleeping one day and walked out of the apartment. I walked and walked, thinking and talking to myself.”

Taken home by a neighbor, Marie found her daughter tottering beside an open window. “She’s losing it and she’s not getting any help,” sighs paralegal Yolene Charles, who’s translating. Marie tells me she wants help and part of her wants to tell her story. Of the son and stepson left in Haiti. Of the cave she hid in. Of the four men in blue uniforms who tied her up and raped her one by one, saying: “This is Aristide and this is Aristide” as her 12-year-old stepson watched. Marie says she will kill herself if she has to face them again.

“Sometimes I dream I’m in Haiti and I wake up screaming. I always see myself in the middle of the military,” she says, slumping in her seat. “I have lost my interieur. I am praying to God to get it back.”

For women’s stories to be fully heard, changes will have to extend far beyond legal interpretations of asylum law to a greater awareness of women’s experiences in the world. Documentation supporting applicants’ testimony is critical in asylum cases, but women’s problems have often been invisible to human-rights monitors. As a result, reports on women’s status in many countries are scarce, making it difficult for female applicants to substantiate their stories.

Mariam, a black woman in her early 20s, is a member of the Sudanese Women’s Union, an organization promoting women’s rights. Omar Bashir’s extremist Islamic regime outlawed the SWU after he came to power in 1989, severely limiting women’s activities. Defying the laws, Mariam (not her real name) and other women met in underground SWU cells to organize. They also refused to veil.

“I had no other choice. I am deeply committed to women’s rights and to improve their situation,” explains the young woman in Arabic to her attorney, Khadija Amsrouy, who translates on a conference call.

Security forces arrested Mariam in 1990 at an SWU demonstration. It was the first of five incarcerations. Imprisoned for periods ranging from several days to more than a month, the law student was deprived of food, water and sleep. “You had to stand up all the time and they would come and watch you. If you were tired and wanted to sit or were starting to fall asleep, they would burn you with metal iron bars. They’d say: ‘This is what you get when you want to be a feminist.”’

Mariam fled Sudan and is living with a relative outside of New York. Being granted asylum is the only way she can stay here legally. So far the only people she’s talked to here about her experience are Amsrouy, who works for the New York law firm Debevoise and Plimpton, and a psychiatrist Amsrouy took her to after she lost 20 pounds and appeared on the verge of a breakdown. Mariam says she feels better. But the past still haunts her. “I cannot sleep and even when I sleep I have very bad nightmares. It’s always a repetition of what happened to me in Sudan. I relive that experience again and again,” she says. “I cry a lot.”

Mariam now waits for her INS interview. Her case appears strong because her persecution is directly related to activities in a political organization, although feminism has only recently been recognized as a political stance. Her attorney is worried, however, that since watchdog groups have produced little evidence verifying the existence of the SWU, it will be difficult to back up Mariam’s story.

“The SWU is a very important organization in Sudan but there was almost nothing on it,” complains Amsrouy. “If she were a man we would have much more documentation.”

Adds Canadian refugee lawyer Marie-Louise Cote: “A country that’s repressive toward women probably won’t have any data on the status of women. So it becomes a Catch-22.”

For years, human-rights groups have focused on documenting more traditional forms of political persecution. Now the question is: Are women’s rights human rights? Women are not, generally, the soldiers, the guerrillas, the politicians. Their actions, their struggles have not by and large been the concern of world courts, of international aid. Women have operated primarily in the private sphere of the home, and family life and social mores have been considered off limits to outside scrutiny. The international community has been willing to pressure a country over its system of racial segregation, but thus far there have been no embargoes based on the systematic oppression of women.

Canadian and now U.S. initiatives to reinterpret asylum law reflect on emerging international consciousness that the personal can indeed be the political. The initiatives also send a significant message, making it clear, as Nurjehan Mawani puts it, that “human rights are human rights and universal and indivisible, that torture is torture and rape is rape.”

Still, it will be years before significant legal precedents are set. “We’re getting more wins lately,” Kelly says, “but this could all be knocked off its feet by a bad circuit-court decision.”

In the best of circumstances, Mariam and Aminah and Marie will overcome the obstacles to tell their stories and will be heard. But they are just a few, and there is still so much silence.