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