The Obama Administration did the right thing on immigration last week, addressing demands from two key political constituencies feeling somewhat jilted since Inauguration Day, liberal women's groups and LGBT voters. On the women's front, the Justice Department is set to issue a long-awaited decision on gender based asylum claims. Separately, in a major shift aimed at ending stigma against people with HIV/AIDS -- a stigma rooted in Jesse Helms' era anti-gay bias -- the Obama Administration, is declassifying HIV infection as a health related ground of inadmissibility for visitors to the United States.
On the asylum side, the Justice Department's decision relates to a case pending before DHS and the Immigration Court's since 1995, Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008). Ms. Alvarado is a native of Guatemala who suffered years of brutal abuse at the hands of her husband, and ex-Guatemalan army soldier. Her story was the subject of a PBS Documentary, Destination America.
As explained by Prof. Karen Musalo, Ms. Alvarado's attorney and Director of the Center for Gender and Refugee Status at UC Hastings Law:
Despite her repeated attempts to obtain protection from the [Guatemalan authorities], the police and the courts refused to intervene. When she ran away, her husband found her and beat her unconscious. Desperate to save her life, Ms. Alvarado finally fled to the United States, leaving her two children with relatives.
In 1996, a San Francisco immigration judge granted Rodi asylum. But the immigration service chose to appeal . . . In June 1999, the BIA reversed the decision of the immigration judge, and ordered that Ms. Alvarado be deported to Guatemala. The decision in Matter of R- A- led to denials of asylum protection to women fleeing a broad range of serious human rights violations, including trafficking for prostitution, gang rape and honor killing, as well as domestic violence.
In January 2001, then-Attorney General Janet Reno responded to a nationwide campaign of outrage and concern by overturning the BIA's decision. She ordered the BIA to issue a new decision in Rodi's case after the issuance of proposed Department of Justice regulations on the subject of gender asylum. Those regulations have never been finalized by the Bush Administration. In January 2005, Attorney General Ashcroft remanded Matter of RA back to the BIA.
In September 2008, Attorney General Mukasey certified Matter of R-A- to himself and issued a decision ordering the BIA to reconsider it, removing the requirement that the BIA await the issuance of proposed regulations. This decision meant that the BIA could immediately begin to consider Matter of R-A-, as well as many other cases that had been placed on hold pending a decision in Matter of R-A-. However, because the case was litigated prior to the BIA decisions requiring an asylum applicant to establish the social visibility and particularity of the social group to which she belongs (see In re C-A-, 23 I. & N. Dec. 951 (BIA 2006), In re A-M-E- & J-G-U, 24 I. & N. Dec. 69 (BIA 2007), In re S-E-G-, 24 I. & N. Dec. 579 (BIA 2008)).
In July 2009, the Department of Homeland Security, which had originally opposed asylum in R-A-, submitted argument in a separate case, In re L-R-, (BIA 2009). That case involved a Mexican woman fleeing domestic violence. The DHS in its L-R- brief demonstrated a marked evolution in its gender persecution analysis:
DHS accepts that in some cases, a victim of domestic violence may be a member of a cognizable particular social group and may be able to show that her abuse was or would be persecution on account of such membership. This does not mean, however, that every victim of domestic violence would be eligible for asylum . . . The evidence in this case at least raises the possibility that [the persecutor] believes that women should occupy a subordinate position within a domestic relationship and that, in his eyes, the female respondent remains in this subordinate position in the relationship even though she has physically separated from [the persecutor]. The evidence further suggests that [the persecutor] believes that abuse of women within such a relationship can therefore be tolerated, and that social expectations in Mexico reinforce this view . . .
Accordingly, a valid social group could comprehend "Mexican women in domestic relationships who are unable to leave" or "Mexican women who are viewed as property by virtue of their positions within a domestic relationship."
Now, applying this same analysis to R-A-, the San Francisco Immigration & Customs Enforcement Office of Chief Counsel, in a one-page pleading to the Immigration Court, has assented to a grant of asylum for Ms. Alvarado. The Court's favorable decision (and final resolution) is expected shortly.
Building on the positive news in R-A-, the Obama Administration last week issued new rules declassifying HIV/AIDS as a bar under INA s. 212(a)(1)(A) to visitors and immigrants coming to the United States. Clearly a vestige of anti-gay prejudice, the ban, which has been in place since 1993, has prevented any international conference related to HIV/AIDS research from taking place on U.S. soil.
Repeal of the HIV exclusion has been a long time coming, particularly in light of the United States' fringe status on this issue, one of only among twelve countries in the world imposing such a ban. Its repeal has been hailed by the international community, and now China and the Ukraine are considering following suit.
What do these two developments portend? Not exactly "Change", but maybe an evolution in attitude within the White House, DHS and DOJ, recognizing America's isolation on these issues within the international community. We can only hope these values trickle down to the agency level. Now, the Obama Administration could have made a bigger splash, implementing sweeping regulations on gender-based persecution, or working to end the ban on gay partners as spouses under the Defense of Marriage Act. That he opted to approach these problems piecemeal is further indication of Obama's governing style, to pursue change slowly, in hopes that policy can shape values, and nudge the Nation along accordingly.
As for the political calculus, these policy choices were initiated under the Bush Administration, required no Congressional approval, cost the Administration nothing politically, and dovetail with efforts to mend Obama's sometimes challenged relationship with progressive women's groups, immigrants and LGBT voters. It sounds like a no-brainer.
