US Court Sets Precedent by Ruling Guatemalan Domestic Violence Victim Can Seek Asylum

2014 903 asyl st(Image: Nick Kenrick)The top U.S. immigration court ruled this week that women from other countries fleeing domestic violence and fearing for their lives can now legally seek asylum in the United States.

The Board of Immigration Appeals issued its decision in the case of Aminta Cifuentes, a Guatemalan woman whose husband repeatedly raped and beat her, and who burned her with paint thinner. Cifuentes was able to prove to the court, through documentation, that the Guatemalan government also failed to protect her from her abuser.

The immigration court noted in its decision that women domestic violence victims in the country constituted a “particular social group,” which is one of five legally protected grounds for qualifying for refugee status. Foreigners can also apply for asylum if they can prove a “well-founded fear of persecution” based on race, religion, nationality, and political opinion.

The court further noted in its decision that Guatemala has “a culture of machismo and family violence,” that “spousal rape remains a serious problem,” and that Guatemala’s “National Civilian Police often failed to respond to requests for assistance related to domestic violence.”

“It becomes clear with this decision what women’s organizations have been saying for many years regarding the state’s inability to protect women’s lives. Even if it was possible to move forward in the legislative and institutional fields, violence against women in all its forms continues being a serious problem for women in this country,” Ada Valenzuela, president of the board of directors of the National Union of Guatemalan Women (UNAMG), told teleSUR English.

UNAMG is a Guatemalan feminist organization that was founded in 1980 amid one of the most violent periods during the country’s bloody 36 year civil war. In addition to genocide, it has been documented that the Guatemalan state used femicide, violence that specifically targets women, as a tool of repression and terror in its counterinsurgency campaign. Some of the acts of gender-based violence included rape, sexual mutilation, and forced abortions.

“Against this background, this may be an important step for women who have not found any answers from the Guatemalan State or any Central American States,” added UNAMG’s Valenzuela.

“From a political standpoint it is an acknowledgment that violence against women does not constitute a ‘private’ problem – as the immigration court has previously understood it – but a social and political issue that affects many women who do not get a response from the state.”

A Step Forward

“This is a really important legal precedent, but there are still a lot of factors lined up against women who may try to make this legal argument,” Aviva Chomsky, a professor of Latin American history at Salem State University told teleSUR English.

She said that women like Cifuentes, who entered the United States without documentation in 2005, face many hurdles and may not be as fortunate as she was. For example, other women may not be fortunate enough to have access to legal representation.

Meanwhile, many others may not be able to acquire documentation proving the incapacity of their respective governments to protect them, or even state complicity. Karen Musalo, a legal adviser in the Cifuentes case, explained to teleSUR English that these are prerequisites for acquiring asylum.

“The applicant for asylum has the ‘burden of proof’ to establish all of the required elements of his or her claim. When an individual is persecuted by a ‘non-state actor’ – such as in this case where the persecutor was her husband – she is required to show that her government is ‘unable or unwilling’ to protect her,” said Musalo, a professor and director of the Center for Gender and Refugee Studies at the University of California’s Hastings College of the Law.

According to Grahame Russell, director of the Canadian and U.S.-based NGO Rights Action, one shortcoming of this development is that it does nothing for women in Guatemala, where impunity, corruption and violence, especially gender violence, are the norm. Guatemala has one of the highest femicide rates in the world.

However, while the impact will more or less be felt mainly inside U.S. borders, the court decision will still make an impact on people’s lives, he added.

“The decision of the court will strengthen the hand of advocacy groups, human rights groups, lawyers, and legal aid clinics who are fighting for women who are trying to stay in the United States because they fear for their lives,” said Russell, who has been working with communities in Guatemala for more than 25 years.