Change Planned in Asylum Rules on Domestic Abuse

The U.S. Justice Department is expected to propose groundbreaking new rules today easing the way for victims of domestic violence to gain asylum in the United States.

The move would represent a major victory for women’s groups, immigrant advocates and others who have waged a national campaign to make it easier for women to win claims alleging persecution based on gender.

“It makes refugee law in the United States consistent with the international understanding that women’s rights are human rights and women’s rights are universal,” said Deborah Anker, a Harvard Law School expert on asylum.

Canada, Australia, New Zealand and Britain have already moved to provide greater protection to battered women filing gender-based claims for asylum, experts say.

A critic denounced the change as the latest example of expanding the definition of asylum beyond a traditional reading based strictly on government repression. In recent years, asylum seekers have filed claims alleging persecution based on gender prejudice, sexual orientation and clan membership.

“The intent of the political asylum law was to protect people from political persecution,” said Ira Mehlman of the Federation for American Immigration Reform, which contends that broadened definitions draw fraudulent asylum seekers. “Now it’s protecting people from a whole variety of misfortunes that might befall them.”

However, officials in the Immigration and Naturalization Service--the Justice Department branch that evaluates asylum cases--say the new rules are fair and will not open any floodgates. Applications from victims of domestic violence are not expected to number more than several hundred annually, according to officials and attorneys.

The new rule, in essence, allows domestic violence victims to be considered members of a “social group,” an important designation in immigration law.

Under U.S. statutes, asylum applicants must show that they cannot return to their homelands because of persecution or fear of persecution arising from at least one of five categories--race, religion, nationality, political opinion or membership in a particular social group. Most gender claims arise under the last category.

Homosexuals and women with gender-related claims won asylum claims during the 1990s as persecuted members of specific social groups. However, federal officials stress that all applicants must still meet the high standard of proving they face persecution if sent back to their homelands.

“We have simply not seen a dramatic increase in the number of applications from persons following decisions by the Department of Justice to recognize a new particular social group,” said Kelly Ryan, an INS attorney who helped draft the new language.

The proposed rules are scheduled to be published today in the Federal Register, the official chronicle of regulatory business. Interested parties will have 45 days to comment before a final rule is considered.

The new rules attempt to eliminate considerable confusion and clarify conflicting interpretations that have emerged in recent years as claims of gender-related persecution have become more common. The INS in 1995 issued guidelines to assist officers evaluating such matters.

Before that milestone move, advocates say, women fleeing persecution based on gender had little chance of success; their problems were largely viewed as personal or family matters.

The following year, a decision by the Board of Immigration Appeals--an administrative body that reviews immigration court rulings--bolstered the case for gender-based claims. The board approved an asylum petition by a young woman who said she could not go home because she faced female genital mutilation, a ritual still practiced in some parts of Africa.

However, last year a sharply divided board issued a decision that many regarded as a retreat: It reversed an immigration judge’s grant of asylum to a Guatemalan woman, Rodi Alvarado, who, records showed, had been brutalized for more than 10 years by her husband, a former soldier. She finally fled and now lives in San Francisco.

The board did not dispute that Alvarado had suffered terribly. But the panel rejected the judge’s ruling that the persecution was based on social group membership. Alvarado is appealing in federal court.

The new Justice Department rules, once made final, experts said, would have the effect of overturning the board ruling in the case of Alvarado and easing the barrier for others alleging persecution based on domestic abuse.