COSTA RICA GRANTS REFUGEE STATUS TO CHERE LYN TOMAYKO; MAY

UNCLAS SAN JOSE 000695

SIPDIS
SENSITIVE

DEPT FOR WHA/CEN PRM, DRL, CA and DS/CR/CIL; DOJ for OIA; Panama for
LEGAT

E.O. 12958: N/A
TAGS: CASC ASEC PREL PGOV PREF PHUM CS
SUBJECT: COSTA RICA GRANTS REFUGEE STATUS TO CHERE LYN TOMAYKO; MAY
SET PRECEDENT FOR FUTURE CLAIMS

REF: A. San Jose 524

B. 07 San Jose 1746

C. 07 San Jose 1604


1. (SBU) SUMMARY: In an unprecedented move that may have long term
repercussions, Minister of Public Security Del Vecchio granted U.S.
fugitive, Chere Lyn Tomayko, refugee status on July 23, thereby
halting her extradition to the U.S. Tomayko, wanted in Texas to
answer to international child abduction charges, claimed (without
substantiation) that she was a victim of domestic violence and that
the U.S. legal system would be unable to protect her from future
violence if she were extradited. Manipulating the Costa Rican media
and playing to Costa Rica's self-image as a protector of human
rights, Tomayko and her team of supporters were able to persuade Del
Vecchio to confer refugee status even before the Supreme Court had
issued its ruling on Tomayko's extradition. In doing so, the
Minister unilaterally contradicted the long standing extradition
treaty between Costa Rica and the U.S., and opened the GOCR to a
possible avalanche of spurious refugee status requests. The
following is our wrap-up on this case, for the record. END
SUMMARY.

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THE ARREST
--------------


2. (SBU) Tomayko has been wanted since 2000 under a federal
indictment for parental child abduction. She fled to Costa Rica in
1997 with her daughter Alexandria after a protracted custody battle
with the father of the child, Amcit Roger Cyprian. Of note, during
the battle, Tomayko did not allege any domestic violence; she first
raised the issue just before she received refugee status in July
2008, and there is no record of prior domestic violence complaints
against Cyprian. A provisional warrant was obtained when she was
located in the summer of 2007, and she was arrested by Costa Rican
authorities in September 2007 (Refs. A-C). Soon after her arrest
and the start of extradition proceedings, Tomayko and her team of
supporters went into high gear to block her return to the U.S.

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THE MARRIAGE (TO A COSTA RICAN NATIONAL)
--------------


3. (SBU) Tomayko first attempted to avoid extradition by marrying
her live-in Costa Rican partner (and father of two of her children).
The Costa Rican constitution forbids the extradition of Costa Rican
citizens and an expedited naturalization process exists for the
spouses of Costa Ricans. Marriage is thus often used by individuals
in extremis wishing to avoid having to leave the country. Tomayko
and her partner, after a courtship of five plus years and the birth
of two children, were married inside her prison in April 2008.
However, as the extradition treaty between Costa Rica and the U.S.
stipulates that naturalization proceedings for fugitives must be
suspended while requests for extradition are pending, Tomayko's
position was still insecure.

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THE ALLEGATIONS
--------------


4. (SBU) Then, Tomayko shared her story widely and publicly,
building a coalition to help her avoid extradition. With the help
of her legal team, she gained the ear of several sympathetic
governmental and non-governmental groups, including the Public
Defender's Office, the National Women's Institute (Spanish acronym
INAMU),and the Ombudsman's Office of the GOCR. Local media helped
by painting the extradition request as a callous move which would
"separate an abused mother from her children." To all the parties
involved, Tomayko repeated her unsubstantiated allegations of
domestic violence suffered at the hands of Cyprian and her fear that
she and her daughter would be in danger if they were returned to the
U.S.


5. (U) NOTE: Tomayko's case already had enjoyed some notoriety in
the local media. This was due to expatriate media outlets
(ironically) claiming that the U.S. Embassy had "protected" Tomayko
from Cyprian since 2002 by allegedly dragging its feet in passing
information to the FBI regarding Tomayko's whereabouts. These
allegations are untrue. END NOTE.

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THE REQUEST FOR REFUGE
--------------


6. (SBU) Having put together her strategy and her team, Tomayko
formally requested refugee status from the Immigration Director.
However, the Director was unwilling to act on unsubstantiated

allegations of abuse or the idea that the U.S. legal system was
unable to protect her. Finding no legal basis under Costa Rican law
or international law for granting her request, the Director refused
her application and a subsequent appeal.

--------------
THE FINAL PUSH
--------------


7. (SBU) With her scheduled July 17, 2008, extradition date drawing
near, Tomayko and her team filed three habeas corpus petitions to
the Supreme Court, postponing her extradition until the Court could
rule. Regrettably, a carnival-like atmosphere prevailed as her
family, supporters, and the Costa Rican media set up shop outside
the prison where she was being held. Meanwhile, more and more
pressure was brought to bear on Minister Janina Del Vecchio to
overrule the Director of Immigration (who reports to her) and grant
refugee status.


8. (SBU) Tomayko and her supporters continued to use the domestic
violence issue to portray her and her daughter as victims being
punished unfairly by the U.S. judicial system. None of Tomayko's
supporters questioned the lack of evidence of domestic violence at
the hands of ex-partner Cyprian. Del Vecchio herself acknowledged
to reporters that no inquires were made to the federal judge in
Texas who originally handled the child custody case, to the FBI, or
to any other U.S. authority to verify the abuse allegations, and
offers of assistance from the U.S. Embassy to help establish the
facts were ignored.


9. (U) On July 21, the Embassy sent a Diplomatic Note (our third on
the Tomayko case since August 2007) reiterating that there were no
allegations of domestic abuse against Cyprian, and that he had no
police or criminal record. The Note also stressed that Tomayko
could present her arguments before the appropriate U.S. court, and
that there were many legal and social organizations in the U.S. that
could provide protection against domestic violence or abuse, if any
were proven. The Note expressed our concern about the implications
from the habeas corpus petitions which could (if accepted) make
Costa Rica a safehaven for law breakers from other countries.
Finally, the Note reminded the GOCR that per our bilateral
extradition treaty, naturalization proceedings should be suspended
until any related extradition request had been adjudicated. (Note
No. 123 emailed to WHA/CEN on August 18.)

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THE UNILATERAL DECISION
--------------


10. (SBU) On July 23, with the expected Supreme Court ruling just
days away, Del Vecchio held a press conference to announce that she
was granting refugee status to Tomayko in order to protect her human
rights. Del Vecchio implied that Costa Rica "had" to take this
action because 1) it was their duty as a world leader in the
protection of human rights; and 2) the U.S. legal system would not,
or could not, protect Tomayko from her ex-partner. Little thought
was given to the rights of the left-behind parent, Roger Cyprian, or
the arguments presented in our Diplomatic Note. In fact, during a
phone conversation earlier that day on the Tomayko case, Del Vecchio
gave the DCM no hint of what she planned to do.


11. (SBU) Del Vecchio held firm when the Ambassador and DCM met with
her and Vice Minister Ana Duran on July 24. The Ambassador and DCM
expressed USG disappointment with her ruling, and concern about the
damaging precedent it could set for Costa Rica. Del Vecchio stood
by her decision (and her right as Minister, to act unilaterally,
without consulting more widely in the government). She maintained,
as she had said in her press conference, that the Tomayko ruling was
a "one-time decision".


12. (SBU) Late on July 24, the Embassy issued a strongly-worded
statement echoing what the Ambassador and DCM had told the Minister
in private, i.e., expressing disappointment in the Minister's
decision, defending U.S. commitment to human rights, and raising
concern about the implications of the legal precedent being set
(text forwarded to WHA that day). However, the die was cast. Given
the Minister's decision, the Supreme Court ruled on July 25 that
Tomayko could not be extradited as a refugee and she was freed. On
July 26, even President Arias was applauding the decision as a
"sovereign" act to "protect human rights," while supportive
commentators were noting the "historic" nature of the decision.

--------------
COMMENT: A DANGEROUS PRECEDENT?
--------------


13. (SBU) Despite the legal arguments, Del Vecchio made a clearly

political decision, which resonated with the Costa Rican body
politic, including the President. In a later conversation with the
Ambassador, Del Vecchio made it clear she had strong personal
reasons to be receptive to Tomayko's concerns. However, as some
Costa Rican legal commentators have already noted (and as MFA staff
have worried to us in private),her ruling may have set a dangerous
precedent, leading to spurious refugee claims in the future. (In
fact, in another child abduction case, Amcit Nicole Kater has filed
a refugee claim here on behalf of her daughter, Tierra Kater-Gehl,
to prevent Tierra's father from returning the girl to the United
States.) Having established that a petitioner can merely state that
they have been the victim of domestic violence without offering
proof could bring the GOCR more than it bargained for.
Additionally, we are concerned that this case represents a
disservice to those who have legitimate claims to protection from
domestic violence.


14. (SBU) We will continue to monitor this situation carefully, and
stronger follow-up action may be required if future extraditions are
placed in jeopardy by the "refugee gambit". Sadly, although Tomayko
has avoided returning to the U.S. to answer for her crime, she
remains a fugitive with outstanding international arrest warrants
against her. She has thus effectively made herself a "prisoner for
life" in Costa Rica.

CIANCHETTE