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### Viewing cable 08SANJOSE695, COSTA RICA GRANTS REFUGEE STATUS TO CHERE LYN TOMAYKO; MAY

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
08SANJOSE695 | 2008-08-26 21:09 | 2011-03-18 21:09 | UNCLASSIFIED//FOR OFFICIAL USE ONLY | Embassy San Jose
Appears in these articles: http://www.nacion.com/2011-03-18/Investigacion/NotasSecundarias/Investigacion2716690.aspx http://www.nacion.com/2011-03-18/Investigacion/NotasSecundarias/Investigacion2716698.aspx

`

    VZCZCXYZ0000
    RR RUEHWEB

    DE RUEHSJ #0695/01 2392110
    ZNR UUUUU ZZH
    R 262110Z AUG 08
    FM AMEMBASSY SAN JOSE
    TO RUEHC/SECSTATE WASHDC 0037
    INFO RUEHZA/WHA CENTRAL AMERICAN COLLECTIVE
    RUEAWJA/DEPT OF JUSTICE WASHINGTON DC

` `

    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.

    ----------
    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.

    ----------------------------------------
    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.

    ---------------
    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.

    ----------------------
    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.)

    -----------------------
    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

`