Mixed Messages on Asylum

Attorney General Michael Mukasey recently took action in two cases involving women who are seeking asylum in the United States. One is positive, and the other deeply concerns advocates for women asylum-seekers who are fleeing gender-based violence in their home countries.

Mukasey sent the cases of Alima Traore from Mali, and Rody Alvarado Peña from Guatemala, to the Board of Immigration Appeals (BIA) to reconsider – for very different reasons. The BIA is the highest authority in the immigration court system.

Alima Traore

Mukasey vacated the BIA’s earlier ruling denying asylum to Traore, calling the decision flawed. He said the immigration courts have been wrong to conclude that, because Traore’s genitals were cut when she was a child, she cannot suffer further harm from genital mutilation.

It is unusual for such a high-ranking official to get involved in an immigration case of this kind. The Attorney General’s action means the Board of Immigration Appeals will reconsider Traore’s case.

Traore is seeking asylum in the United States because she fears genital mutilation and forced marriage to a first cousin if she is forced to return home to Mali. She has lived in the U.S. since 2000, attending college and studying nursing here.

The Board of Immigration Appeals ruled earlier in her case, concluding that, since her genitals were cut as a child, the “reprehensible” act could not be repeated. Mukasey’s order directly challenges that reasoning, “The Board based its analysis on a false premise: that female genital mutilation is a one-time act that cannot be repeated on the same woman… As several courts have recognized, female genital mutilation is indeed capable of repetition.”

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) commended the Attorney General’s action. “Female genital mutilation is a barbaric practice that is widely regarded as a human rights abuse,” he said. “I hope the Board of Immigration Appeals will carefully reconsider its prior decision in this case and reject its own prior reasoning. That reasoning ignored the long-lasting implications this practice can have on those who suffer it and who face life in a society that condones it. I believe all Americans can understand why someone victimized by this practice would fear returning to a society where it was allowed to happen. It is not enough to say that this practice is cruel; our policies must reflect these principles as well.”

Rody Alvarado Peña

Attorney General Mukasey cancelled the stay that has allowed Rody Alvarado Peña to live in the United States for more than a decade. But in doing so, Mukasey failed to follow the lead of Attorneys General Janet Reno and John Ashcroft, both of whom asked the U.S Department of Homeland Security (DHS) and U.S. Department of Justice (DOJ) to finalize regulations affecting victims of violence seeking asylum in the U.S. as part of resolving Alvarado Peña’s case.

Rody Alvarado Peña came to the United States from Guatemala in 1995 after suffering vicious abuse at the hands of her husband for more than a decade. She received no protection from Guatemalan courts and police. She was granted asylum in 1996, but in the years since, immigration courts have made conflicting rulings that left her in limbo.

In February 2004, DHS announced its support for Alvarado’s claim to asylum, but then-Attorney General John Ashcroft sent her case back to the Board of Immigration Appeals, ordering it to reconsider the case once the regulations were final. They have not been finalized in the years since.

The regulations Mukasey ignored could provide clarity and direction to immigration courts in deciding these cases. Without them, advocates fear that the Board of Immigration Appeals will decide this and other cases against asylum-seekers, sending them home to face grave and sometimes lethal danger.

Karen Musalo, Director of the Center for Gender and Refugee Studies at the University of California, Hastings, who is Alvarado Peña’s attorney, told the Inter Press Service News Agency, “Though we are glad to see some movement in the case, I am worried 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 their countries where their governments will not protect them.”

Both Traore and Alvarado Peña are living in the U.S. while they await further rulings from the Board of Immigration Appeals.

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