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Asylum ruling has helped fewer domestic-violence victims than hoped

WASHINGTON » In an awful way, Araceli Bonilla was fortunate.

If a U.S. immigration judge had heard the Honduran woman’s tale of repeated beatings and hospital visits, death threats and psychological trauma just a few months earlier, the court probably wouldn’t have been able to help her.

She still has the scars on her arm from where her partner burned her with a cast-iron grill, below her eyebrow where his ring caught her eye and on the finger he almost cut off with a kitchen knife.

A ruling last year by the nation’s highest immigration court gave some victims of domestic violence, like Bonilla, a way to remain in the country legally.

“I feel like I won the lottery,” Bonilla said. She won permission to stay in November 2014.

Many asylum experts saw the August 2014 case, known as A-R-C-G after the initials of the woman involved, as a leap forward for those fleeing “femicide,” the rampant gender-based violence in much of Latin America. But a year after the ruling, applicants face broad disparities in the courts.

A review of recent decisions in domestic-violence asylum cases led advocates to say that outcomes continue to be influenced by courts’ locations and whether applicants have lawyers.

Roughly 2 in 5 reported domestic-violence decisions have been denied since the A-R-C-G case, according to preliminary data compiled by the Center for Gender & Refugee Studies at University of California Hastings College of the Law.

The government does not report the immigration judges’ decisions on domestic-violence cases, making it harder to track how cases fare across the country. The Center for Gender & Refugee Studies houses the largest repository of gender-based asylum cases.

The center has collected nearly 90 decisions that involved domestic violence since A-R-C-G. Although the sample isn’t large, patterns have emerged showing the significance and limitations of the decision, according to a report by the center titled “Gender-Based Asylum Post-Matter of A-R-C-G” to be published this week in the Southwestern Journal of International Law.

Out of more than 1,600 asylum cases involving partner violence in which attorneys have sought the center’s assistance, there have been 89 decisions. While 43 were granted either asylum or some similar form of relief, 35 were denied and the rest were sent back to court.

“I don’t mean to diminish what is going on, but it hasn’t been so pronounced,” said Blaine Bookey, co-legal director at the center and author of the report. “A-R-C-G was really such a positive advancement in recognizing domestic violence as a basis for asylum. But it still leaves a lot untold.”

The interpretation of the law has significant policy implications.

Next month, U.S. Immigration and Customs Enforcement plans to start a large-scale effort to round up hundreds of families who entered the U.S. illegally and have been ordered removed from the United States by an immigration judge.

If the women fleeing poverty and violence in Central America — many of them mothers traveling with young children — qualify as bona fide refugees, they may be entitled to special protections. And thousands continue to be held in family detention centers that the Obama administration resurrected last year to discourage future migration.

At the family immigration center in Dilley, Texas, about half of the roughly 500 mothers being held claim they are victims of domestic violence, said Brian Hoffman, an Ohio immigration attorney who is leading the CARA Family Detention Pro Bono Project.

The majority are from Guatemala, Honduras and El Salvador, having arrived since last year as part of a surge of more than 100,000 migrant families fleeing poverty and violence in Central America.

U.S. immigration officials didn’t respond to specific questions about implications of the A-R-C-G decision, but they said each application was adjudicated on a case-by-case basis depending on the particular facts and applicable laws and regulations.

The U.S. government’s challenge of determining who is a real refugee and who is simply trying to enter illegally is getting more complicated as conditions for women in Central America worsen.

The region has long struggled with gender-based violent crime that goes unpunished. According to a 2014 report by the organization Small Arms Survey, an independent research group in Geneva, more than half of the 25 countries with the highest femicide rates are in Latin America. El Salvador has the highest rate; Guatemala has the third-highest; Honduras the seventh-highest.

The Office of the United Nations High Commissioner for Refugees warned in October that women from Central America will continue to flee their countries because of escalating violence against them, including domestic violence.

Its report documents thousands of women from what’s known as the Northern Triangle who are fleeing a tide of gender-based violence by transnational gangs.

Some groups are concerned that the U.S. court’s decision has weakened the asylum program created to protect the persecuted.

While domestic violence certainly should be condemned, the immigration court’s decision is an inappropriate way to address a worldwide problem, said Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a Washington research institute that supports tighter controls on immigration.

“It has the potential to over the long term dilute the meaning of asylum,” Vaughan said. “Anyone fleeing an uncomfortable or dangerous or upsetting or difficult circumstance could then qualify for asylum.”

The A-R-C-G decision by the nation’s highest immigration court last year was supposed to resolve nearly two decades of court battles over whether battered women formed a social group subject to persecution and thus had standing to seek asylum under U.S. immigration laws. The Board of Immigration Appeals in Falls Church, Va., ruled that a Guatemalan mother of three who was beaten and raped by her husband would receive asylum based on domestic violence.

Bookey, of the Center for Gender & Refugee Studies, said the A-R-C-G opinion was too narrowly written. It applies to a specific social group: “married women in Guatemala who are unable to leave their relationship.”

But, Bookey said, what if a refugee is not from Guatemala, but another Central America country where cultural views of women are similar? And what if the couple involved is not married but share their lives as if they are, as is common in rural areas of Central America?

In one case Bookey studied, an immigration judge denied the application of a Salvadoran woman because she wasn’t married to her accused abuser even though the couple had been together 15 years and had five children. In another, the judge denied a woman’s application because she got a divorce. The ex-husband continued to stalk and abuse her.

“You know you’re mine,” he continued to tell her, according to her case file.

Bonilla met her future partner during her first trip to the United States. He had migrated from El Salvador. They were both working at a restaurant outside Washington. He was a cook. She was a server.

She liked the attention he gave her. He was sweet, worked hard and promised to help provide for her and her children from a previous relationship.

Life seemed good at first, and they had two more children. But he had a temper. He could be controlling. He didn’t like it when she stood up for herself. He once nearly knocked her out, she said, hitting her in the head with his cellphone when she asked him not to come home drunk.

The next day he promised not to hurt her again.

“It was a lie,” she said.

When her mother got sick, she returned to Honduras to help. He joined her there. He sometimes locked the children and her in the house so she couldn’t leave. In 2012, he grabbed a cast iron grill off the hot stove where she was cooking tortillas and pressed it into her arm. She called the Honduran police.

“They didn’t care,” she said. “They said he was the father of my kids.”

The surge of unaccompanied minors and families from Central America that began last year has increased the backlog to nearly half a million cases in immigration court. To receive asylum in the United States, applicants must prove they have well-founded fears of persecution because of “race, religion, nationality, membership in a particular social group or political opinion.”

Which applicants are most likely to prevail often depends on judges’ backgrounds, where in the country the cases are heard in whether they have lawyers, according to data from the Transactional Records Access Clearinghouse at Syracuse University.

Judges at the immigration court in Miami near the Krome detention center denied over 92 percent of asylum requests from 2009 to 2014, while half of the judges at the New York immigration court granted 80 percent of asylum requests, according to TRAC.

Felix Villalobos, an immigration attorney with the Texas-based Refugee and Immigrant Center for Education and Legal Services, said it was much harder to win an immigration case in a conservative state such as Texas, where views on immigration could be tougher. He wants the Supreme Court to take up the domestic-violence issue to establish more clear rules on when asylum is appropriate.

“People should be outraged, because our justice system is supposed to be a system that is predictable,” Villalobos said. “When you have absolutely no idea which way it could go, that shows that something is wrong.”

If an applicant doesn’t have a lawyer, she has little chance of success, according to the data. Just 1.5 percent of women traveling with children who did not have lawyers were allowed to stay, according to TRAC. Those who got lawyers were able to stay in the country more than 26 percent of the time.

Lilian Oliva Bardales had a lawyer. But she was still deported to Honduras earlier this year after eight months of living in a Texas family detention center with her 4-year-old son.

Like Bonilla, Oliva fled Honduras because of an abusive former partner. He pulled a gun on her, raped her and threatened to take away their son.

One judge who heard her case didn’t think she qualified for A-R-C-G because she was no longer with her partner, according to one of her lawyers.

Desperate and scared, Olivia cut her wrists in the detention center. She and her son were deported six days later. They stayed with relatives who lived in Tegucigalpa, hours from her mountainous village. She didn’t let anyone there know she was back, even her parents. She was worried that her son’s father would find out she had returned.

This fall, she fled again, this time to Europe.

“I had to leave. I couldn’t keep hiding,” she said in an interview from Europe.

Her new lawyer, Bryan Johnson, has since won an appeal to have the case reopened in the United States. An appeals court said she could be eligible for protection under the A-R-C-G case.

For Hoffman, A-R-C-G may not be perfect, but it has made the path for domestic-violence victims a lot easier.

Every Sunday night, a new group of volunteer lawyers and law students gathers near the Dilley family detention center to go over the case files of mothers and children inside.

Often over spaghetti dinners, they watch a slide show and role-play different legal scenarios. Much of their time is focused on the A-R-C-G case.

“The clients really don’t need a lot of legal advice,” Hoffman said. “Whereas for the gang-recruitment-type cases you have to really probe: ‘Why was your son targeted? Was it because you’re a single mom? Was it because you are an evangelical Christian?’ But with these domestic-violence cases, because of A-R-C-G, you just need to establish you were trapped in the relationship.”

Bonilla made her most recent trip to the United States from Honduras with her eldest daughter in March 2014.

She considered going to another country, such as El Salvador or Mexico. But she said the protection for women was not the same. Also, two of her children are U.S. citizens.

They were stopped by the Border Patrol and taken to a family detention center in Pennsylvania. They lived inside for eight months while her case went through the courts.

Bonilla’s daughter testified that Bonilla’s partner would force her and her siblings to kneel on grains of rice while he beat their mother.

“The children would try to hide,” Bonilla said in an interview. “They would beg me to leave him.”

Her lawyer, Jacquelyn Kline, said Bonilla likely wouldn’t have been able to stay in the country without approval. But Kline has other clients with almost the same story who were denied because they weren’t married.

“That’s one of the frustrations,” Kline said. “It’s so dependent on who you have as a judge.”

Bonilla received a type of deportation relief similar to asylum for those who had previously been in the country illegally. She got a job cleaning homes around Washington.

She still worries about money and paying the rent. But now, at least, she thinks her children’s father can’t reach her.

“Here,” she said, “I feel protected.”

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(Brittany Peterson contributed to this report.)

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©2015 McClatchy Washington Bureau

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