Karen Musalo

(WOMENSENEWS)–In Guatemala, Rodi Alvarado suffered ten years of beatings and rapes at the hands of her husband. After several attempts to escape, and with no shelters to run to, in 1995 she fled her home to seek asylum in the United States, leaving her two small children in the care of a relative. Since then, she has been separated from her children, waiting for the U.S. Department of Justice to decide if she may remain in the United States. She might have her answer soon–and it may be no.

On March 1, the U.S. Immigration and Naturalization Service moved from the jurisdiction of the Department of Justice to the new Department of Homeland Security. The new department now has control over proposed regulations that could have allowed Alvarado, and other women fleeing gender violence, to seek refuge in the United States. The Department of Justice maintains control over the immigration courts and the Board of Immigration Appeals, where Alvarado’s case resides. As the two departments review gender asylum, Alvarado’s fate, and the fate of women like her, remains in the balance.

Bush Administration Stalled Proposed Protection

At least one in three women and girls worldwide has been beaten or sexually abused in her lifetime–and only 44 countries have laws that specifically address domestic violence, according to data from the United Nations Development Fund for Children. When women are raped, beaten, forcibly sterilized, sold into slavery or threatened with honor killing, and when their government fails to protect them, they can become refugees out of desperation.

Under international law, refugees seeking asylum must prove they can’t return home because of a “well-founded” fear of persecution due to race, religion, nationality, political opinion or membership in a particular social group. Though gender is not explicitly included as a category, last year the U.N. High Commissioner for Refugees affirmed that a gender-sensitive interpretation should be applied to the refugee convention. Britain, Australia, New Zealand, Sweden, Ireland, South Africa and Canada all recognize gender-based asylum claims. Before President Bush took office, it looked as though the United States would join this list.

In the waning days of the Clinton administration, the immigration service proposed regulations that recognize that, under certain circumstances, gender can be considered under the social group category in the refugee convention–and domestic violence can be a basis for asylum.

Those proposed regulations saved–and stalled–Alvarado’s case. In 1996, an immigration judge granted Alvarado asylum, finding that the abuse she suffered and the government’s inability to protect her constituted persecution. But the immigration service opposed the decision, and Alvarado’s case went before the Board of Immigration Appeals, a Justice Department panel that reviews immigration cases. The board ruled that Alvarado was not eligible for asylum and ordered that she be deported. On her last day in office, Attorney General Janet Reno voided that ruling and instructed the board to reconsider the Alvarado case after the immigration service finalized the proposed regulations. One month later, President Bush took office. In the more than two years since then, the Department of Justice has failed to finalize the gender asylum regulations.

Fate of Proposed Regulations Uncertain

As the immigration service’s move to Homeland Security loomed near, human rights advocates feared that the Justice Department would issue final regulations that would deny gender-based asylum claims. Heidi Altman, a spokesperson for the Lawyers Committee for Human Rights, a Washington, D.C.-based advocacy organization, says a source within the Department of Justice confirmed that Ashcroft planned to issue final regulations. As February came to a close, the Department of Justice refused to confirm or deny those accounts.

As word of possible action on the regulations spread, 49 members of Congress sent a letter to Attorney General John Ashcroft urging him to not issue regulations that would reject gender-based asylum claims.

“We are deeply concerned that the new regulations will reverse current policy and make it more difficult for anyone who has been persecuted by ‘non-state actors’ to gain asylum protection,” the letter states. “Furthermore, your new proposed regulation will condemn several women and girls to death.”

Since then, the Department of Justice has handed the proposed regulations over to the Department of Homeland Security and will offer guidance on the matter, says Jorge Martinez, a Justice Department spokesperson. Together, they are working on a final rule “that would provide a uniform set of standards for adjudicating a broad range of cases that are difficult to interpret within the framework of current asylum law,” he says.

Meanwhile, Ashcroft has referred Alvarado’s case to himself for review. He plans to decide whether Alvarado falls into the social group category definition outlined in asylum law and if she was persecuted on the basis of her membership in that social group.

Karen Musalo, co-counsel on the Alvarado case and director of the Berkeley, Calif.-based Center for Gender and Refugee Studies, says she has heard from people within the Justice Department that the Attorney General intends to reinstate the original Board of Immigration Appeals decision, which denied Alvarado asylum. If that happens, it will run counter to the proposed gender asylum regulations and set a negative precedent for other women fleeing domestic violence.

“This would be an incredible step backwards and quite a repudiation of our commitment to protecting women who are fleeing violations of their human rights,” said Musalo.

The Department of Justice said the Attorney General has not made a decision on the case and no deadline has been set for that decision.

Legal Precedent Won, Then Lost

Musalo points to immigration service’s federal court cases as evidence of Department of Justice opposition to gender-based asylum.

Rosalba Aguirre-Cervantes spent her childhood surviving frequent, severe beatings from her father who used a horsewhip, a hose, tree branches and his fists. Her attempts to run away resulted in more abuse. In 1999, at age 16, she fled her home in Mexico. She arrived in Los Angeles and spent the next two years fighting to avoid deportation.

Her case made its way to the Ninth Circuit Court of Appeals. In 2001, a three-judge panel ruled that Cervantes should be able to remain in the United States because of her past suffering, her fear of future abuse, and the fact that Mexico was “unable or unwilling to interfere with that persecution.” Advocates celebrated the decision as a precedent establishing domestic violence as grounds for asylum and as a firm footing for other gender-based asylum claims. But their elation did not last. Later in the year, the immigration service sought, and won, a rehearing before the full court. Before that rehearing took place, Cervantes’ father was killed and both parties agreed to have the case remanded to the Board of Immigration Appeals without a decision, effectively erasing the legal precedent.

In several cases that reached the federal appeals court level, the immigration service withdrew its opposition to asylum and the cases went back to the Board of Immigration Appeals. The board’s decisions in those cases were unpublished, which means they do not set precedent.

Absent positive legal precedent, and facing a possible negative decision by Ashcroft in Rodi Alvarado’s case, women who come to the United States seeking refuge from domestic violence may find closed doors.

“The majority of people in the United States, when confronted with the facts of what these women face if they are forced to return home, respond ‘How can we send them back to that?'” said Musalo.

Tomorrow: Waiting for a U-Visa

Shauna Curphey is a freelance writer living in Long Beach, Calif.

For more information:

Center for Gender and Refugee Studies–
Domestic Violence: R-A-:

Immigration and Naturalization Service–
Questions and Answers: The R-A- Rule:

Lawyers Committee for Human Rights–
“Refugee Women at Risk: Unfair U.S. Laws Hurt Asylum Seekers”
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