Asylum

by Shaker EastSideKate, a feminist teacher/scholar/mother/partner/derbygirl from Upstate New York.

[I'd like to totally undercut my credibility by mentioning that I hadn't heard of this particular case prior to today. I'd be grateful to hear from folks with knowledge of asylum policies. I'm especially interested to hear how the US compares to other nations.]

I ran across an absolutely better-than-bad, and in many ways good [trigger warning for descriptions of domestic violence] story in the New York Times this morning. The Obama administration has recommended that the US grant political asylum to Ms. Rody Alvarado Peña, who entered the country after escaping from an abusive husband in her native Guatemala (background here). According to the Times, activists are hopeful that Alvarado's case will set a precedent for abused women seeking asylum, and that it will ultimately lead to a coherent, humane asylum policy. If a federal immigration judge goes along with the administration's recommendation, Ms. Alvarado will be allowed to stay in the US, rather than being sent back to a potentially deadly situation. This is good news.

Not to be a buzzkill, but this story reminds me of something Angela Davis brought up a couple of weeks ago when she was giving a lecture out here. She mentioned the understandable happiness that many New Yorkers were feeling when Governor Paterson signed a measure that prohibited the shackling of pregnant prisoners during delivery. Clearly, the legislation in question was good, but a couple of things come to mind.

First, it's shocking that action from the legislature and Governor was a prerequisite to treating women like people. Second, New York became the sixth state to ban this practice (the Federal Bureau of Prisons did so last year). I'm pretty sure this doesn't call for an "in your face, Jersey!," ya' know? Third, Davis said (a quick scan of the internet didn't produce any links) that this piece of legislation had languished in Albany for 9 years, presumably because somebody was concerned about the cons of not shackling pregnant prisoners.

Back to Ms. Alvarado's case. She's been in the United States for fourteen years. She's also been in-and-out of immigration court for most of that time. While Ms. Alvarado has been living in limbo, her two children have grown up in Guatemala. As in the case of prison shackling, nobody (as far as I know) is debating the veracity of Ms. Alvarado's story. The hand-wringing has been about whether the government should actually care enough to intervene. The US doesn't have a policy in place that allows victims of domestic violence to seek asylum here. This case also doesn't appear to be about whether we might, you know, create such a policy. Rather, Ms. Alvarado's case turns on the issue of whether we can interpret existing statutes that protect politically persecuted classes to include her. (And only her.)

America's policy towards battered women (or at least those who are being battered by spouses in foreign countries) appears to be getting better. As a result of slow deliberations, the U.S., according to the Times' headline "May be Open to Asylum for Spouse Abuse." Certainly, this is a step in the right direction, but also cause for us to consider our government's hesitancy. I see two big stumbling blocks.

First, American society writ large seems to be concerned that people might actually want to come live here. Which people? For lack of a more nuanced way of putting it, plenty of Americans seem worried that poor brown people or other folks who totally don't deserve the awesomeness that we have built for ourselves with our own hands and Godandthebibleandpickuptrucksamen are going to start coming here. Thus, we put would-be immigrants in the position of having to defend their right to live here. In the case of Ms. Alvarado, this means that rather than simply saying that she wants to be here, she has to give us a good reason.

Moreover, someone, somewhere, gets to pass judgment (I believe the person in question is often called a judge, for obvious reasons) on whether that reason really is "good" (not in a philosophical sense, of course, but rather in the sense that it jives with how someone chooses to interpret the laws and policy that someone else has chosen to make).

Second, our distrust of certain foreigners and our concern that folks might actually be able to claim asylum has led to painfully deliberate policy. Ms. Alvarado and women like her can only claim asylum if someone in the American government decides that abused women are a politically persecuted class. The fact that the U.S. government may actually recognize that abused women constitute a politically persecuted class is interesting in its own right (and is yet another reason for a half-hearted parade). By the way, do you smell the lawyers yet? Fourteen years worth of lawyers?

Obviously, there is an appeals process in place, ostensibly to protect applicants against whom the government has ruled. Still, it is Ms. Alvarado who is on trial here, not her abusive husband. While in theory, our asylum policy is set up as tedious to minimize the number of people sent back to dangerous situations, as far as I can tell, the reality is just the opposite. Using this case as a benchmark, it appears (shockingly, I know) as though the American immigration system functions to minimize the chances that the wrong people might accidentally end up legally living in the United States. How else does one explain fourteen years and counting?