Musalo told us: "Both the DHS and the DOJ have to reach consensus on the regulations and issue them jointly, since both agencies have jurisdiction over asylum. It is a little kept secret that the delay is due in no small part to the DOJ, which does not agree with the DHS. The DOJ has expressed the position that such claims cannot be recognized. The DHS expressed an opposing position in the brief it filed in February 2004" in the Alvarado case.
The proposed new regulations were generally seen as a positive legal development, which recognized claims such as Ms. Alvarado's," Musalo told IPS. But as of today, they have not been issued in final form. Spokespersons for both the DHS and the DOJ declined to comment on their apparent failure to reach consensus.
The case took yet another arguably more discouraging turn last month. In a surprise move on September 25, Attorney General Mukasey issued a decision ordering the BIA to reconsider the case. In so doing, he removed the requirement that the BIA await the issuance of proposed regulations.
This means that the BIA can immediately begin to consider the Alvarado decision -- as well as many others also on hold awaiting a BIA decision in the Alvarado case.
Musalo told us that Mukasey's removal of the requirement that Reno initially put in, and that Ashcroft also included in his order -- that the BIA should wait to decide the case until the new regulations were finalized - could have serious negative implications for Alvarado. She said that "without the requirement of those regulations, the BIA can just apply its own precedent -- which has been increasingly restrictive. Mukasey said the BIA doesn't have to wait for the new regulations to decide the case -- which is very troubling to us."
"Though we are glad to see some movement in the case, I am worried that that the current Attorney General is less sympathetic than his predecessors to the protection of women asylum seekers who flee brutal forms of persecution in countries where their governments will not protect them," she told us.
Domestic violence is recognized as a legitimate basis for refugee protection by the United Nations High Commissioner for Refugees, as well as by countries around the world - including Canada, the United Kingdom, Australia and New Zealand; however its acceptance in the U.S. has been controversial.
The DHS says it will not press for Ms. Alvarado's deportation regardless of how much longer it may take the agency to finalize the new regulations. Meanwhile, Ms. Alvarado remains in legal limbo. Though she can remain in the U.S. that is only a partial victory since she cannot be reunited with her children, who remain in Guatemala. For a number of years, she has been working as a housekeeper at a convent in San Francisco.
Mrs. Alvarado's case created a firestorm of bipartisan criticism of U.S. Government immigration policies. Advocates for women and immigration rights had hoped Alvarado's situation would already have led to a change in U.S. policy to recognize asylum cases filed by victims of domestic violence.
The issue of immigration judges has been further complicated by the recent revelations of partisan political influence in the DOJ during the tenure of former Attorney General Alberto Gonzales. One of Gonzales' key aides, Monica Goodling testified to Congress that she recommended the appointment of immigration judges based on their conservative political credentials.
Fairness and common sense ought to tell us that domestic violence is a hideous crime whether it happens in Guatemala or in America. In America, however, we pride ourselves on being a nation of compassion. Well, what happens to the compassion when government lawyers spend eight years trying to make what appears to be a simple rule-change - and then come up with zilch?
What happens is that we lose our confidence in Government - which is a lot about what the current presidential election is about.
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