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Building Case for Abuse

August 8, 2008

A Texas state judge has openly questioned Costa Rica’s decision to grant asylum to Chere Lyn Tomayko on grounds that her ex-boyfriend abused her in the U.S.

Judge William Harris, who awarded Tomayko and her ex-boyfriend, Roger Cyprian, joint custody over their daughter Alexandria 12 years ago, said Costa Rican Public Security Minister Janina del Vecchio did not have enough evidence to give Tomayko refugee status.

“I wish I had that ability” to make decisions with little evidence, Harris told The Tico Times. “I could save the taxpayers of Texas a lot of time. I wouldn’t need these juries. I could just listen to one party and say ‘They’re right, and the other side is wrong.’”

The case, the first time Costa Rica has granted refugee status on the grounds of domestic violence alone, raises a thorny question now stumping immigration offices around the world: How much evidence of abuse is enough to warrant granting refugee status?

Stephen Legomsky, a law professor at WashingtonUniversity in the U.S. city of St. Louis, Missouri, said asylum seekers rarely have witnesses to back their claims.

“That means an awful lot depends on whether the adjudicator simply believes your story,” he said.

Tomayko fled to Costa Rica with Alexandria in 1997, five months after Harris’ order. In 2000, a federal grand jury in Texas indicted her on charges of international parental kidnapping. Arrested by Interpol in 2007, Tomayko was set to be extradited in July, but del Vecchio’s decision allowed her to stay.

In seeking asylum, Tomayko said Cyprian abused her, Alexandria and Chandler, Tomayko’s daughter from a previous relationship. Cyprian said the accusations are false, but Tomayko’s daughters back her up.

As evidence, Tomayko provided a police report from 1994, when she was engaged to Cyprian and building a house with him. Cyprian got angry one day about a shelf she had built in the closet. Tomayko told police Cyprian grabbed her by the throat, slammed her down on the trunk of her car and choked her in front of Alexandria, then 4. When Tomayko, breathless, got in her car to drive away, Cyprian reached in and pulled her engagement ring off her hand.

Cyprian refutes the story.

Tomayko also presented the ministry with a sworn statement by Chandler describing the abuse, as well as a letter from Costa Rican psychologist Heidy Hernández, who concluded that Alexandria, now 19, has chronic post-traumatic stress disorder caused by events in her childhood.

These documents, obtained this week from Tomayko’s court file, may not be the only evidence she presented to the ministry. (She declined to comment on her asylum application.)

But the police report, the sworn statement and the psychologist’s note are sufficient to grant asylum, said Legomsky and Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California’s HastingsCollege of the Law in San Francisco.

At least 12 countries have recognized domestic violence as grounds for asylum, including the United States, Canada, Spain, Ireland, Germany, the United Kingdom, New Zealand, Australia, Hungary, Argentina, Ecuador and Romania, according to William Spindler, spokesman for the United Nations High Commissioner for Refugees.

Tomayko’s case placed Costa Rica squarely on that list. Never before had Costa Rica granted asylum based solely on domestic violence claims, said Immigration Director Mario Zamora.

Once del Vecchio interpreted international law as protecting abuse victims, she had to assess Tomayko’s story. Under U.N. norms, an asylum seeker must show a “well-founded fear” of persecution, and that the home country was unwilling or unable to provide protection.

Whether Tomayko presented evidence that the U.S. was unable or unwilling to protect her remains unclear, however.

Last year, 1,026 U.S. citizens applied for asylum around the world and only 10 were successful, said Spindler. The U.N. does not keep records on the reasons asylum was granted, he said.

Making a case may be especially hard for domestic violence victims from the U.S. Even del Vecchio acknowledged that the U.S. has “efficient mechanisms to protect victims of family violence.” And women can flee their pursuers by moving to a different state, Legomsky added.

But laws protecting victims may not be properly enforced, and women may be afraid to seek help, said Musalo. In any case, under U.N. standards, countries can grant refugee  status based solely on the applicant’s word.

“A person can prove their case with testimony alone if they are …credible and consistent,” Musalo said. “And here (Tomayko) has got a lot more than testimony.” Those norms, though, seem to befuddle Judge Harris. He said he awarded joint custody because Texas law presumes contact with both parents is in the child’s best interests.

Harris never believed Tomayko’s claims of abuse, which he said she raised only after the custody hearing ended.

“(Del Vecchio) has an interesting way of making these determinations.”

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