POLITICAL ASYLUM PROTECTION FOR VICTIMS OF GENDER VIOLENCE AND OTHER FORMS OF PERSECUTION

by Jared Feldman

 

During many periods of our history, the American Jewish community has benefited greatly from the United States’ refugee protection policies.  Millions of Jews have found safe haven in this country – including individuals displaced following the Holocaust and refugees from the former Soviet Union and other parts of the world.  This positive experience has been tempered by periods of American history when the doors were shut to refugees, leading to tragedies such as the return of the St. Louis and its 900 Jewish passengers to Nazi-controlled Europe in 1939.

 

Informed by this history and our tradition’s teachings of the importance of welcoming the stranger (ger), redeeming the captive (piddyon shevuyim) and saving life (pikuach nefesh), our community has supported the U.S. political asylum system.  Political asylum is a central component of U.S. humanitarian policy that each year provides protection for tens of thousands of individuals who have suffered persecution or have a well-founded fear of persecution based on their religion, race, nationality, political opinion, or social group.  [The standard for asylee status and refugee status are the same; asylees apply for status after arriving in the United States, while refugees have applied for and been granted refugee status prior to entering the U.S.]  For example, in 2003 more than 26,000 individuals were granted status as asylees, among them approximately 3,050 individuals from the former Soviet Union and Iran – the two principal sources of Jewish refugees. 

 

In recent years, one particularly compelling category of asylum seekers has been women escaping gender-based persecution.  These women have fled their homelands out of fear of extreme forms of domestic violence, sexual assault, forced prostitution, “honor” killings, female genital mutilation, and other persecution.  These asylum claims are usually presented as arguments that the woman was harmed because of her membership in a social group and tend to be very complex in nature.  As a result, immigration and federal courts have ruled on a number of important cases, affecting the overall scope of asylum protection offered to women. 

 

Reforms in the asylum system, including the requirement of timely processing of asylum applications and the ending of automatic work authorization for applicants, have been disincentives for the filing of frivolous asylum applications.  These changes had the effect of reducing the annual number of approved asylum applications from 147,000 in FY1995 to 37,938 in 1999.

 

In 1996 Congress enacted legislation that has greatly reduced due process protections for asylum seekers.  This legislation imposed a one-year time period (or “filing deadline”) within which individuals fleeing persecution could apply for asylum.  It also established an expedited removal system that has required migrants arriving at U.S. ports of entry without proper documentation to be mandatorily detained, at least until they demonstrate a credible fear of persecution and are permitted to present their asylum claim before an Immigration Judge.   These individuals often arrive in difficult physical and emotional conditions without a support network in this country to assist in finding lawyers and preparing their claim.  The expedited removal system does not take into account the special circumstances of rape victims, torture survivors, or other traumatized asylum seekers who, because of their psychological condition, may not be able to immediately articulate their fear to a uniformed immigration official.  As a result, these individuals could be sent back to their countries or persecution without having opportunities to fully present claims for asylum.

 

U.S. law also imposes grave hardships on individuals who are granted asylum.  Legislation enacted in 1990 limits the number of asylees to 10,000 per year who can adjust their immigration status to that of lawful permanent residents (green card holders).  This policy is wholly inconsistent with rules for refugees who are adjudicated under the same standard but are admitted from abroad where no annual limitation exists.  Because of this adjustment cap, asylees may wait as long as 16 years to get green cards.  While in immigration limbo, these victims of persecution face many restrictions on their abilities to seek employment, education and family reunification, and are prevented from moving ahead towards full assimilation into American society. 

 

The JCPA believes that:

  • The U.S. political asylum system is a vital source of protection for thousands of victims of persecution who turn to the United States with hope for a new and secure future, including Jewish asylum applicants from the former Soviet Union, Iran, and elsewhere, and women fleeing “honor” crimes and other gender-based violence.
  • While homeland security concerns require the evaluation and, in some instances, modification of immigration programs, it is inappropriate to play on people’s justifiable fears of terrorism to undermine important mechanisms in our country’s humanitarian programs.  It is particularly inappropriate to argue for dramatic restrictions on asylum on the basis of old cases in which applications were made prior to the 1995 asylum reform regulations, in which asylum was not granted, or where there is no concrete evidence of a terrorist act as proof that asylum must be dramatically restricted.  In fact, U.S. law specifically prohibits a grant of asylum to anyone who has been convicted of a particularly serious crime, including any of the broad range of crimes designated as aggravated felonies under the immigration laws, and constitutes a danger to the community; has committed a serious nonpolitical crime abroad; is or may reasonably be considered to be a danger to the security of the United States; or has engaged in terrorist activity.  Additionally, the Immigration and Nationality Act provides that “asylum cannot be granted until the identity of the applicant has been checked against all appropriate records or databases maintained by the Attorney General and by the Secretary of State…to determine any grounds on which the alien may be inadmissible to, or deportable from, the United States, or ineligible to apply for or be granted asylum.” 
  • Asylum seekers should continue to receive protection from the United States, and that Congress and the Administration should work together to improve the climate for the adjudication of their claims.  Specifically, the Departments of Justice and Homeland Security should provide greater protection to and access to resources for women fleeing domestic violence, sexual assault, forced prostitution, honor killings, female genital mutilation, and other types of gender-based persecution.  Additionally, other reforms that should receive strong consideration are proposals to eliminate the arbitrary annual caps on adjustment of status for asylees and on full asylum for victims of coercive population control; to eliminate the one year filing deadline and allow asylum claims to be judged on their merits; to provide greater access to parole for asylum seekers who can demonstrate to an Immigration Judge that they are not dangers to the community or flight risks; and to provide all applicants with full opportunities to present their claims to an Immigration Judge instead of deporting them without a hearing through the expedited removal system. 
  • Congress and the Administration should continue to seek additional legal protection mechanisms to assist vulnerable migrants – such as women and children – as has been done through the Violence Against Woman Act (VAWA). 

 

The community relations field should:

  • Work in coalitions to ensure that the public receives accurate information about both the humanitarian needs served by the U.S. refugee and asylum programs and about any possible issues for reform are fully appreciated by the public;
  • Work to promote greater refugee or asylee protection for women, religious practitioners and other victims of violence and persecution;
  • Oppose efforts to misrepresent the impact of the asylum system on national security as a justification for efforts to reduce protection for asylum seekers; and
  • Support the reform of any factually-supported and legitimate problems with the asylum system that are identified.

About the Author


Jared Feldman