Rodi Alvarado Pena

(WOMENSENEWS)–The landmark case of a Guatemalan refugee who was battered and threatened with death by her soldier-husband produced proposed changes in U.S. asylum law that may benefit thousands of immigrant women.

Yet, the new rules may not come in time to protect her from being deported to face her spouse once again.

In a last-ditch move to save her from deportation, the supporters of Guatemalan Rodi Alvarado Pena now are petitioning Attorney General Janet Reno to reverse Alvarado’s deportation order before the attorney general leaves office Saturday.

In another move, the Immigration and Naturalization Service last week asked Reno to send Alvarado’s case back to the Board of Immigration Appeals for fresh consideration under proposed new guidelines that, if adopted, would remove barriers to gender-based asylum claims, such as those claiming domestic abuse.

The rare turnaround by INS delighted Alvarado’s attorney, Jane Kroesche.

"In light of the Immigration and Naturalization Service’s past position in our case, it is very positive that they agree with us that the prior decision against Alvarado be vacated," Kroesche said.

Alvarado’s supporters, while applauding the expected reconsideration of her case, continue to petition Reno to act decisively on her behalf rather than leave her future to the indefinite approval of an uncertain rule or a court that already approved her deportation.

Alvarado escaped from her abusive husband in 1995 and now resides in San Francisco. A California court decided that Alvarado should be granted asylum but, two years ago, the Board of Immigration Appeals overturned that ruling, even though the court accepted that she almost certainly faced further abuse–and perhaps death–if she returned to Guatemala.

Alvarado’s case was one of the first arguing domestic violence as grounds for asylum to reach the Board of Immigration Appeals. The board’s decisions are binding on all immigration officers and immigration judges unless overruled by the U.S Attorney General or a federal court.

The legal groundwork for gender-based claims was laid in 1996 with the landmark Fauziya Kasinga decision, which granted asylum to a 19-year-old woman fleeing female genital mutilation in Togo. This decision was a limited, however, because it failed to address the legitimacy of other claims based on gender-related violence.

Proposed Rule Says Domestic Abuse Can Be Persecution

Alvarado’s case prompted a review and proposed amendment of regulations that may make victims of domestic violence eligible for asylum in the United States, if the laws and institutions of their own countries do not protect them. That is the case in Guatemala where wife-beating is tolerated by police, courts and society at large.

The proposed rule acknowledges that domestic abuse is not a purely private matter and that it could actually become persecution. A well-founded fear of persecution is the standard requirement for granting asylum claims.

The Immigration and Naturalization Service proposed the new guidelines last month. The service developed the proposed gender-based asylum regulations during more than a year of consultation with immigrants’ and women’s rights groups, as well as the Violence Against Women Office of the Department of Justice.

"We believe we’ve done the proper work to make sure this rule has bipartisan support," said spokesman Bill Strassberger of the Department of Justice.

Alvarado was severely beaten and sexually abused by her husband, a soldier in the Guatemalan army. She claimed persecution on account of being a member of the social group of "Guatemalan women who have been intimately involved with Guatemalan male companions who believe that women are to live under male domination."

To qualify for asylum under U.S. immigration law, an applicant must have a "well-founded fear of persecution" on account of race, religion, nationality, membership in a particular social group or espousal of a particular political opinion. The proposed rule that covers domestic abuse seeks to clarify the "social group" category, the one evolving area of asylum law, according to Strassberger.

Being Battered May Constitute Membership in Persecuted Social Group

The proposed rule recognizes that one’s gender may constitute membership in a social group, opening the door to claims based on violence typically perpetrated against women, such as rape, forced abortion, prostitution, honor killings and genital mutilation.

In 1999, the Immigration and Naturalization Service received 42,207 applications for asylum, including 1,085 by women claiming persecution based on their membership in a social group. Those claims were not broken down into types of gender-based violence.

Before last week’s change of heart, the Immigration and Naturalization Service had argued that Alvarado was not entitled to asylum because her abusive husband did not seek to harm other members of the asserted social group of women living with misogynist men, therefore, she could not claim persecution on this ground.

Under the new rule, however, the fact that the husband did not try to abuse other women was not necessarily a barrier to claiming membership in a social group. In the case of domestic abuse, a victim may meet the "social group" requirement if sufficient evidence exists that such patterns of violence are supported by the legal system or social norms of her country.

Court records demonstrate that Alvarado was threatened with death by her husband. In Guatemala, the police and the courts both refused to intervene on her behalf, maintaining that the violence was a family affair. No government services for battered women are available and women may not obtain a divorce without their husbands’ consent.

The Guatemalan National Office on Women has reported that as many as 40 percent of women murdered in that country are killed by their husbands or partners.

Some Say Rule Goes Too Far, Others Say Not Far Enough to Help Women

The proposed new rule will not become final until after a period of public comment ending Monday, Jan. 22.

Then the fate of the new rule becomes uncertain. Many consider the proposal too lenient and open to abuse by women who lack authentic asylum claims and others believe the rule should be more generous to battered immigrant women.

Because the Clinton administration leaves office on Saturday, confirmation of the rule will devolve to the attorney general under President George W. Bush. Bush has said his administration will conduct a review of all the rules, standard procedure for an incoming administration.

Until the new asylum rule becomes final, women fleeing gender-related violence will continue to face deportation.

Megan A. Costello is a free-lance writer based in New York.