Some of my former students will remember the domestic-violence asylum case, Matter of R-A-, which had been pending in a sort of limbo state since January 2001. The R-A- case presents the issue of whether an immigrant may obtain asylum in the United States on the basis of her well-founded fear that she will suffer severe domestic violence if she is returned to her country, violence from which her country will not protect her. This week, Attorney General Michael Mukasey issued a decision directing the Board of Immigration Appeals to reconsider the case.
The procedural history of the case is extraordinarily convoluted, even by immigration law standards. The petitioner, R-A-, was granted political asylum by the Immigration Court in 1996, but the (now-defunct) Immigration and Naturalization Service appealed, and the decision granting R-A- refugee status was reversed by the Board of Immigration Appeals in 1999. Subsequently, in 2001, Attorney General Janet Reno issued an order vacating the Board of Appeals’ decision and directed the Board to stay reconsideration pending anticipated approval of a new rule governing such matters. However, that proposed new rule has never become final, not even after Attorney General John Ashcroft ordered the Board to “reconsider the decision in light of the final rule” in 2005.
The underlying facts of the case are undeniably horrifying. The nature and extent of the violence experienced by R-A- was detailed in the original decision of the Board of Immigration Appeals and summed up by the Center for Gender and Refugee Studies at UC-Hastings, in its web page about her case:
[The petitioner’s husband] raped and sodomized [her], broke windows and mirrors with her head, dislocated her jaw, and tried to abort her child by kicking her violently in the spine. Besides using his hands and his feet against her, he also resorted to weapons—pistol-whipping her, and terrorizing her with his machete.
[The petitioner’s] repeated attempts to obtain protection failed. The police and the courts refused to intervene because it was a “domestic” matter. When she ran away, [her husband] found her and beat her unconscious. He told her that she could never get away from him, because he would “cut off her arms and legs, and . . . leave her in a wheelchair, if she ever tried to leave him.”
In its 1999 decision, the Board of Immigration Appeals explained that Guatemala failed to protect R-A- from this violence:
The respondent’s pleas to Guatemalan police did not gain her protection. On three occasions, the police issued summons for her husband to appear, but he ignored them, and the police did not take further action. Twice, the respondent called the police, but they never responded. When the respondent appeared before a judge, he told her that he would not interfere in domestic disputes. Her husband told the respondent that, because of his former military service, calling the police would be futile as he was familiar with law enforcement officials. The respondent knew of no shelters or other organizations in Guatemala that could protect her.
Nonetheless, though expressing sympathy for the petitioner’s plight, the Board concluded she did not fit the definition of a “refugee”:
It is not possible to review this record without having great sympathy for the respondent and extreme contempt for the actions of her husband. The questions before us, however, are not whether some equitable or prosecutorial authority ought to be invoked to prevent the respondent’s deportation to Guatemala. Indeed, the Service has adequate authority in the form of “deferred action” to accomplish that result if it deems it appropriate. Rather, the questions before us concern the respondent’s eligibility for relief under our refugee and asylum laws. And, as explained below, we do not agree with the Immigration Judge that the respondent was harmed on account of either actual or imputed political opinion or membership in a particular social group.
Reasonable minds can differ about this question, whether victims of domestic violence should receive protection as refugees. But most everyone agrees that immigration cases should be resolved in a more timely and orderly fashion than this one has been. Indeed, Attorney General Mukasey refers to the need to resolve this legal limbo in his new decision:
I have been advised that the Board has been holding not only the case of the particular alien who is the subject of the Matter of R-A- decision, but also a growing number of similar cases involving aliens who have alleged that they were victims of domestic violence in their home countries. [footnote omitted] The stay order has prevented the Board from acting on these cases. In light of these developments and the fact that the proposed rule cited by Attorney General Reno never has been made final, I have decided to lift the stay so that the Board can revisit the issues in Matter of R-A- and related cases and issue new decisions. Accordingly, the Board should now proceed as it sees fit with its reconsideration of Matter of R-A- and the other cases . . . .