Although Trump-era policies have been reversed, the likelihood of finding protection in the United States is lower than ever.
By: Jenny Manrique Peninsula 360 Press
After escaping the abuse and persecution that an active Mara 18 gang member subjected her to for months in her native El Salvador, Milagro won her asylum case in the United States last August, becoming one more immigrant victim of domestic violence.
She crossed the Mexican border in 2015 after escaping from her kidnapper, who repeatedly raped her and threatened to kill her family. My life was always in danger, I filed a complaint (in El Salvador) but my case was not resolved and they did not help me in any way," said Milagro during a press conference organized by Ethnic Media Serviceswhich looked at how immigrant victims of domestic violence struggle to find protection in the United States.
The woman, who agreed to share her story without publishing her last name, was about to get married when the gang member, obsessed with her, began harassing her via telephone, saying that he would have her "by hook or by crook".
From then on, the repeated rapes began, which included threats with weapons, burning with a clothes iron, and beatings all over her body. Her rapist even fractured her hands.
The last time he beat me for four hours, he wanted to kill me, he told me he was going to cut me into little pieces and leave my body half where my grandmother and half where my uncles and aunts live," she said. After Milagro escaped, the gang member kept looking for her in all the nooks and crannies of her city, so she decided to leave the country.
When I crossed (the border) I told them (immigration officials) that my life was in danger, that if I returned they were going to kill me, wherever I was he was looking for me? Thanks to God and to the lawyer I made it (the asylum), but it was a long struggle?
Almost five years after filing her case (December 2016), she received the status and with it, the path to legal residency in the country. Today she is the mother of a girl and is pregnant with a boy, and although she is in a stable and healthy relationship she says that ?there is still that trauma that one cannot get rid of. It is like a big burn and a scar remains, even if you want to erase it, you can't?
The Refugee Act of 1980 allows individuals to apply for refugee status abroad or asylum status at the border or within the United States. They may be eligible if they demonstrate what is known as a "well-founded fear," that is, that the persecution is due to their race, religion, nationality, political opinion, or membership in a particular social group.
Marta Victoria Canossa, an immigration attorney with the Los Angeles-based firm Ortega, Canossa & Associates, who is handling Milagro's case, stressed that it is important for immigrant victims of domestic violence to file their case within the first year of entering the United States.
It is very difficult for an abused woman to go to a U.S. embassy and request asylum, even for those who already have family members here in the U.S. or who already have an application pending," she said. This lack of resources at the embassy level forces women to enter by filing their claim at the Mexican border. If they do not do so as soon as they cross, they have a year to do so?
Advocates have found the reports issued every year by the State Department on the situation of countries in Latin America, which highlight the problems faced by immigrant victims of domestic violence in finding help from their own governments, to be useful in supporting these cases.
VAWA and U Visaoptions for immigrant victims of domestic violence
Other women suffer domestic violence within the United States, and they have two options: they can file their case through the Violence Against Women Act (VAWA), which has been in effect since 1984, or apply for a U visa.
VAWA is available to people married to lawful permanent residents or U.S. citizens," Canossa said. Under the law, which also covers men, applicants are not required to file a police report: their own statement or that of witnesses, and other support such as pictures and text messages, are sufficient. ? Right now, approval is taking 21 to 28 months, but they can also apply for work permits while they wait," Canossa said.
The application under VAWA must be made while the person is still married to the abuser or within two years after the divorce.
As for the U Visa, this relief is available to victims of domestic violence who are undocumented or were not married to U.S. citizens. However, it requires a police report which "is sometimes a challenge when the person is in a jurisdiction where the police do not want to cooperate".
The other difficulty is that waits for the U Visa exceed 5 years, during which time the person does not receive a work permit.
Sessions vs. Garland
The road to these protections has been a long one. Beginning in the 1990s, guidelines were adopted on how the claims of immigrant victims of domestic violence might fit under the Refugee Convention. One reason often argued in domestic violence cases is that the woman might be harmed because of her political or feminist views, such as not being subject to male domination," explained Blaine Bookey, legal director of the Center for Gender and Refugee Studies at the University of California Hastings College of the Law.
In other cases, different forms of gender-based violence have been recognized as persecution. These include female genital cutting, sexual violence, forced marriages, honor killings and also domestic violence. On the latter, there was much resistance until a few years ago.
?In 2014, the Justice Department's Board of Immigration Appeals issued a decision that explicitly recognized domestic violence as a basis for asylum,? Bookey said. ?But in 2018, Trump's attorney general, Jeff Sessions, issued a decision undoing that precedent, using the case of our client, Ms. AB.?
AB is a Salvadoran woman who endured 15 years of brutal domestic violence. Her partner's brother was a police officer and used that position to intimidate her, forcing her into exile, leaving her three young children behind. Although AB was eligible for asylum, Sessions rejected that decision and sought to undermine the availability of asylum for immigrant victims of domestic violence and any form of harm by a non-governmental actor.
In many cases, gender-based violence is perpetrated by family members or others in the community," Bookey said. ?So this 2018 AB decision was incredibly damaging. Grant rates for asylum seekers from Central America, particularly in Mexico, dropped significantly.?
After a long campaign by women's advocacy groups, last summer, Attorney General Merrick Garland reversed the Trump administration's decision to close the door to asylum seekers for being victims of domestic violence.
It was an incredibly important victory. Cases where a woman had been denied asylum and had gone to the court of appeals, have a new consideration before the Department of Justice?
But obstacles remain: the politicization of immigration courts, an aftermath of the Trump era, has caused judges to deny more than 90% of domestic violence cases. And the lack of access to counsel for asylum seekers leaves many without the ability to sustain their case.
We need laws of action that are clearer to expand the meaning of a particular social group," Canossa said. It has been a slow process and we need more support from the courts and feminist groups," he concluded.
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