[Congressional Record (Bound Edition), Volume 146 (2000), Part 13]
[Senate]
[Pages 18419-18420]
[From the U.S. 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.

[[Page 18420]]

  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 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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