Fear of persecution: as the Department of Justice seeks to restricts gender-based asylum claims, what will happen to women escaping domestic violence.(report)

It was midsummer and Rosa Sanchez * found herself staring down the barrel of a revolver. Her common-law husband, Manuel Ortega, had decided to pay her a visit at the family home in Guatemala. Just as he had done countless times before, Ortega lashed out at Sanchez, calling her names. "Worthless whore" was among his favorites. Grasping the revolver, Ortega jammed it down Sanchez's throat, breaking her teeth. Next he turned the gun at the family cat and shot it dead, all while Sanchez's two children watched. He then shot at Sanchez three times bur missed. Only when neighbors threatened to call the police did Ortega leave, but not before vowing that he would return to finish Sanchez off.

That day would never come. Fearing for her life, Sanchez packed her belongings, including her entire savings of $25, grabbed her children, and escaped to Mexico. Once there, she met another kind of resistance, this time from the Mexican authorities who refused to help her on grounds that she was "only a victim of domestic violence." She had heard these words before from the Guatemalan authorities. They, too, had said that they would not protect her.

Sanchez eventually found herself at the doorstep of a nonprofit that provides battered women with referral and legal services. They believed Sanchez had solid grounds to file for asylum. The lawyers who would eventually take on her case pro bono agreed.

For over three months, Sanchez's lawyers worked to prove that the harm their client was subjected to in her native Guatemala met the definition of persecution. If they failed, Sanchez would be deported back to Guatemala, where she would likely be the victim of more attacks. But proving that she had a legal right to stay would be difficult.

To be eligible for asylum, an applicant must demonstrate that they can't return to their native country due to a "well-founded" fear of persecution on grounds of race, religion, nationality, political opinion, or membership in a particular social group. Gender is not a recognized category in the United States, though other countries, including Britain, Australia, Sweden, Ireland, Canada, and New Zealand all allow gender-based asylum claims.

During the Clinton administration, it appeared that the U.S. was making headway to begin recognizing gender-based claims. In fact, the INS had proposed regulations that would allow gender to be recognized within the social group classification and that would also allow domestic violence to be used as a claim for asylum.

Unfortunately, the proposed gender regulations were never finalized. During the Bush administration, the INS was reorganized and all such relevant matters began to involve the Department of Justice and the newly created Department of Homeland Security. The joint jurisdiction means that Attorney General John Ashcroft, who has spearheaded numerous anti-immigrant measures, now has a hand in controlling the gender regulations.