[Congressional Record Volume 146, Number 111 (Tuesday, September 19, 2000)]
[Senate]
[Pages S8752-S8753]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DOMESTIC VIOLENCE CASES IN THE ASYLUM PROCESS
Mr. LEAHY. Mr. President, I would like to speak today about two
critically important immigration issues--expedited removal and the
treatment of domestic violence victims in our asylum process. They both
arose in a case recently brought to my attention. Two months ago, Ms.
Nurys Altagracia Michel Dume fled to the United States from the
Dominican Republic. She was fleeing from the man with whom she had
lived for the past 11 years, a man who had raped her numerous times,
forbade her even to leave the house, and, shortly before she left,
bought a gun, held it to her head, and threatened to kill her. This was
not the first time he had threatened her life.
She arrived here on July 17, and she was subject to expedited removal
because, in her haste to escape from her abusive partner, she traveled
without a valid passport. She expressed her fear of returning to the
Dominican Republic. After three days of confinement, she was accorded a
credible fear interview. At this crucial interview, at which she would
have to discuss the fact that she had been raped, she was interviewed
by two male employees and was not represented by counsel. Under their
narrow interpretation of what may constitute ``credible fear of
persecution,'' based on their interpretation of a Board of Immigration
Appeals decision, Matter of R-A-, the INS took the position initially
that Ms. Michel should be sent back to the Dominican Republic. Under
their interpretation any asylum claims based on a fear of domestic
violence would be barred. So even though they believed that Ms.
Michel's partner might kill her if she were forced to return to her
native country, they nonetheless made a legal judgment that her claim
was invalid.
I cannot believe that even those supporters of the expedited removal
process who forced it into law in 1996 could have intended for this
matter to be resolved in this way or for questions of law to be
resolved in INS officers at a credible fear hearing. I brought this
case to the attention of the INS by way of a letter on August 28. The
Lawyers' Committee for Human Rights, Congresswoman Carolyn Maloney, and
others wrote, as well. I am glad to report that Ms. Michel was accorded
a second credible fear interview. At this second interview, Ms. Michel
was found to have a credible fear of persecution, and will now have the
chance to raise an asylum claim.
Despite this reprieve, however, Ms. Michel's case reveals yet again
the serious flaws in expedited removal. A woman who told a compelling
history about the danger she faced if returned to her country was only
able to receive an asylum hearing after the intervention of highly
capable counsel and Members of both Houses of Congress. That it is not
an effective or just system. If Ms. Michel's case had not come to the
attention of the Lawyers' Committee, she would likely already be back
in the Dominican Republic. If she had been forced back, I shudder to
think what might have happened to her.
People who flee their countries to escape serious danger should be
able to have asylum hearings in the United States without having to
navigate the procedural roadblocks established by expedited removal. I,
again, call upon the Senate to consider S. 1940, the Refugee Protection
Act, a bipartisan bill I introduced last fall with Senator Brownback
and five other Senators of both parties. This bill would restrict the
use of expedited removal to times of immigration emergencies, and
include due process protections in those rare times when it is used.
Expedited removal was originally instituted in the 1996 Anti-
Terrorism and Effective Death Penalty Act (AEDPA). Under expedited
removal, low-level INS officers with cursory supervision have the
authority to ``remove'' people who arrive at our border without proper
documentation, or with facially valid documentation that the officer
simply suspects is invalid. No review--administrative or judicial--is
available of the INS officer's decision, which is rendered after a so-
called secondary inspection interview. ``Removal'' is an antiseptic way
of saying thrown out of the country.
Expedited removal was widely criticized at the time of its passage as
ignoring the realities of political persecution, since people being
tortured by their government are quite likely to have difficulties
obtaining valid travel documents from that government. Its adoption was
viewed by many--including a majority of this body--as an abandonment of
our historical commitment to refugees and a misplaced reaction to our
legitimate fears of terrorism.
When we debated the Illegal Immigration Reform and Immigrant
Responsibility Act later the same year, I offered an amendment with
Senator DeWine to restrict the use of expedited removal to times of
immigration emergencies, which would be certified by the Attorney
General. This more limited authority was all that the Administration
had requested in the first place, and it was far more in line with our
international and historical commitments. This amendment passed the
Senate with bipartisan support, but it was removed in one of the most
partisan conference committees I have ever witnessed. As a result, the
extreme version of expedited removal contained in AEDPA remained law,
and was implemented in 1997. Ever since, I have attempted to fix the
problems with expedited removal.
The Refugee Protection Act is modeled closely on the 1996 amendment
that passed the Senate, and I have been optimistic that it too would be
supported by a broad coalition of Senators. It allows expedited removal
only in times of immigration emergencies, and it provides due process
rights and elemental fairness for those arriving at our borders without
sacrificing security concerns. But even as the Refugee Protection act
has gained additional cosponsors during this session, it has been
ignored by the Senate leadership. Indeed, despite my requests, the bill
has not even received a hearing.
Meanwhile, in the three and a half years that expedited removal has
been in operation, we already have numerous stories of valid asylum
seekers who were thrown out of the country without the opportunity to
convince an immigration judge that they faced persecution in their
native lands. To provide just one example, ``Dem,'' a Kosovar Albanian,
was summarily removed from the U.S. after the civil war in Kosovo had
already made the front pages of America's newspapers. During
[[Page S8753]]
his interview with the INS inspector who had unreviewable discretion
over his fate, he was provided with a Serbian translator who did not
speak Albanian, rendering the interview a farce. Instead of being
embraced as a political refugee, he was put on the next plane back to
where his flight had originated. We only know about his story at all
because he was dogged enough to make it back to the United States. On
this second trip, he was found to have a credible fear of persecution
and he is currently in the midst of the asylum process.
One of the most distressing parts of expedited removal is that there
is no way for us to know how many deserving refugees have been
excluded. Because secondary inspection interviews are conducted in
secret, we typically only learn about mistakes when refugees manage to
make it back to the United States a second time, like Dem, or when they
are deported to a third country they passed through on their way to the
U.S. This uncertainty should lead us to be especially wary of
continuing this failed experiment.
And now we must even be concerned about the conduct of credible fear
interviews. When aliens subject to expedited removal express a fear of
returning to their home country, the law requires that they be referred
for a credible fear hearing. If their fear is found to be legitimate,
they are then allowed to make a claim for political asylum. These
interviews are not designed to make judgments about legal questions,
but simply to determine whether a person may have a valid asylum claim.
This process failed Ms. Michel, and we must now worry that it is
failing other refugees.
I am also concerned about the underlying legal issue in the case of
Ms. Michel and other victims of domestic violence. Last year, the Board
of Immigration Appeals denied the asylum request of a Guatemalan woman
who faced likely death at the hands of her husband if she were forced
to return home. In that decision, Matter of
R-A-, the BIA decided that victims of domestic violence did not qualify
as a ``social group'' under our asylum laws. The Attorney General
currently has this very decision under review. It is my hope that she
will reverse it.
Last year I sent a letter to the INS Commissioner supporting the
asylum claim of Ms. R-A. In that case, the INS did not dispute her
account of horrific abuse, including her claims that her husband raped
and pistol-whipped her, and beat her unconscious in front of her
children. Nor did the INS dispute that law enforcement authority in her
native Guatemala told her that they would not protect her from violent
crimes committed against her by her husband. Based on this evidence, an
immigration judge determined in 1996 that she was entitled to asylum,
but the INS appealed that ruling and convinced the BIA to reverse it.
That decision is currently on appeal in the Ninth Circuit Court of
Appeals, but that court has stayed its consideration of the matter
pending the Attorney General's own review.
Evidence of domestic violence is sadly all too common in our asylum
system. Last year, I also encouraged the INS to grant asylum to a 16-
year-old girl from Mexico who sought asylum in the United States after
fleeing from a father who had beaten her since she was three years old,
using whips, tree branches, his fists, and a hose. Apparently, the girl
attempted to intervene when her father was beating her mother. Again,
local law enforcement failed to protect the girl, and she fled to the
United States. As in R-A-, an immigration judge granted her asylum
request, but the INS appealed, and the BIA reversed it.
These BIA decisions came only two years after its decision that
Fauziya Kasinga--who faced female genital mutilation if forced to
return to her native Togo--was protected by our asylum laws. In making
this decision, the BIA found that potential victims of genital
mutilation constituted a ``social group.'' I agree with this decision,
and I believe that women fearing domestic violence must certainly also
so qualify. This is especially true where--as is the case for Ms.
Michel and many other women--the asylum applicants come from nations
where law enforcement officials often turn a blind eye to claims of
domestic violence.
Of course, the problems faced by women around the world go beyond
domestic violence. Another stark example of the ways in which women
applicants may be insufficiently protected by our asylum laws comes
from the case of Ms. A-, a Jordanian woman seeking asylum in the United
States after fleeing the prospect of a so-called ``honor killing'' in
Jordan. I wrote the Attorney General in February--along with a
bipartisan group of six other Senators--to support her asylum
application. Ms. A- had fallen in love with a Palestinian man who asked
her to marry him. Her father forbade the marriage, however, because he
was Palestinian and had a low-paying job. Ms. A- was at that point
faced with the possibility that she might be pregnant and the certainty
that her future husband, whoever he might be, would know that she was
no longer a virgin, a fact that would bring shame and dishonor upon her
family and potentially justify her murder at her family's hands under a
widely-practiced Jordanian custom. She fled to the United States and
married this man.
In June 1995, her sister informed her that their father had met with
their nuclear family, uncles and cousins to demand that they kill A-
wherever they might meet her. The State Department reported that there
were more than 20 ``honor killings'' in Jordan in 1998, and speculated
that the actual number was probably four times as high. Making matters
even worse, these killings are typically punishable by only a few
months' imprisonment.
Despite the very close resemblance between these facts and the facts
in Kasinga, both an immigration judge and the BIA found that Ms. A- was
ineligible for asylum. The INS has agreed to stay further proceedings
in the case while the Attorney General reviews the matter.
The existence of these problems in our asylum system shows that there
is still work to be done, both by this Congress and in the executive
branch. I call upon the Senate to use some of the time we have
remaining to address the problems in our expedited removal system, and
upon the Attorney General and the INS to be vigilant that victims of
rape and other forms of serious domestic abuse not be returned to their
countries under expedited removal. And I renew my call to the Attorney
General that we reevaluate our position on asylum eligibility for
victims of severe domestic violence from nations that do not take
domestic violence seriously. Finally, I encourage all of my colleagues
to sign on to a letter that Senator Landrieu and I are circulating that
would ask the Attorney General to overturn R-A- and reaffirm our
commitment to human rights and women's rights.
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