News/USA: Abused Woman Is Denied Asylum

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Subject: News/USA: Abused Woman Is Denied Asylum
From: Melanie Orhant (morhant@igc.org)
Date: Mon Jun 28 1999 - 17:11:28 EDT


Abused Woman Is Denied Asylum
Immigration Ruling Reflects Split Over Gender Persecution
By Fredric N. Tulsky, Special to The Washington Post
The Washington Post, Sunday, June 20, 1999; Page A1

A foreign woman fleeing a violently abusive spouse cannot gain asylum in
the United States even if she faces a direct and serious threat of harm in
her home country, a federal immigration panel has ruled in a case that is
drawing protests from asylum advocates and women's groups.

The decision this month by a sharply divided Board of Immigration Appeals,
the Justice Department panel that sets and interprets U.S. immigration
policy, reflects a growing philosophical tension within the immigration
system over how to treat women's claims of gender persecution.

Since issuing guidelines intended to recognize gender-based persecution
under U.S. asylum laws, the federal government has sent mixed signals about
whether women fleeing persecution from their husbands -- as opposed to
persecution by a government -- should be allowed to seek refuge here.

The subject in the case, Rodi Alvarado Pena, now 33, was abused for years
by her husband in Guatemala in ways that U.S. officials agree were
horrific. Her husband, a former soldier, beat her unconscious, raped her
and kicked her so badly she hemorrhaged, she has told authorities. He broke
windows and mirrors with her head, pistol-whipped her and threatened her
with a machete.

Alvarado attempted suicide and vainly sought protection from Guatemalan
police and courts, who told her it was a private matter. Finally, Alvarado
said, in despera tion she fled Guatemala and sought protection in the
United States. An immigration judge granted her asylum claim in September
1996.

But in its 10 to 5 decision, the Board of Immigration Appeals ruled that
Alvarado does not qualify for asylum under U.S. immigration policy. The
board found she had not proven that she suffered persecution under any of
the five categories enumerated under international and U.S. law: race,
religion, nationality, political opinion or membership in a social group.

The majority's opinion reflects the caution that many immigration judges
and U.S. officials feel about allowing new categories of eligible asylum
seekers that would open the floodgates to large numbers of new claims by
people seeking residence in the United States.

Already, U.S. immigration courts wrestle routinely with the difficulties of
evaluating evidence of government persecution claims presented by asylum
seekers whose experiences and travels pose huge challenges of documentation
and corroboration. A new category of claims involving domestic violence
would impose further burdens on the immigration courts.

With persecution based on gender status emerging as a relatively new area
of asylum law, the board's majority said that it would be up to Congress to
step in and provide more detailed guidance about how new standards should
be applied.

But the five dissenting appeals board members contended that the board's
decision not to recognize domestic abuse victims in Guatemala as a social
group "cannot be reconciled either with the reality of the respondent's
situation in Guatemala, or with U.S. law." They said the United States has
an obligation to protect those who fear harm because of "some fundamental
aspect of their identity."

U.S. asylum policies offer protection for refugees who demonstrate a
"credible fear" of persecution if they are sent home. But they must show
that their persecutor is either the government itself or someone the
government is unable or unwilling to control. The persecution must be on
account of one of the five enumerated grounds.

In Alvarado's case, the board majority said in the June 11 decision that
resolution of her spousal abuse claim "does not lie in our asylum laws as
they are currently formulated."

The case illustrates the latest zigzag in U.S. immigration policies toward
women. In 1995, the Immigration and Naturalization Service first issued
guidelines intended to recognize gender-based persecution under the asylum
laws. But asylum advocates contend that the guidelines have been
erratically applied and interpreted.

The guidelines are not binding on the immigration judges, who work for a
sister agency within the Justice Department. The board majority concluded
at any rate that the guidelines do not resolve whether domestic violence
victims are a protected social group.

The board factions split over whether the majority was departing from the
reasoning that it used in overturning an immigration judge and granting
asylum in 1997 to Fauziya Kasinga, who said she faced female genital
mutilation if returned to Togo. The board ruled then that women who opposed
the practice were singled out for persecution because of their opposition.
In contrast, the majority said in Alvarado's case, Guatemalan women were
not singled out because they opposed domestic violence.

"The record in this case reflects that the views of society and of many
governmental institutions in Guatemala can result in the tolerance of
spousal abuse at levels we find appalling," states the majority opinion,
written by board member Lauri S. Filppu. "The record also shows that
abusive marriages are not viewed as desirable, that spousal abuse is
recognized as a problem, and that some measures have been pursued in an
attempt to respond to this acknowledged problem."

The INS does not tally asylum claims by sex, but says that 20,459 people
applied between last October and May, and 8,028 were granted protection
during that period.

Women's rights advocates condemned the Alvarado decision. San Francisco
attorney Jane Kroesche, who represents Alvarado, on Thursday said she plans
to appeal to federal court. While the Board of Immigration Appeals is the
highest administrative authority for asylum cases in the federal system,
its decisions can be appealed directly to the U.S. Appeals Court.

"She suffered prolonged torture, and did everything in her country she
could to help herself," Kroesche said. "At great sacrifice, she left behind
her country, her family and her children, knowing she might not see them
again. If she is not protected, what kind of woman would be?"

Karen Musalo, resident scholar at the University of California at Hastings,
who was Kasinga's attorney and who advised Kroesche, called the
similarities in the cases "striking."

"What is so distressing is that the board seems either to have not
understood its decision in Kasinga, or is refusing to apply its own
principles," she said.

Maria T. Cardona, INS spokeswoman, said Friday, "The INS is absolutely
committed to gender protection where the claims can be supported by law."
But Cardona added that defining a "social group is complicated, and is a
difficult legal standard."

U.S. officials do not dispute Alvarado's account of brutal treatment by her
husband. "We struggle to describe how deplorable we find the husband's
conduct to have been," the board majority wrote.

In an interview conducted through a translator, Alvarado, now a maid in San
Francisco, recounted in Spanish how the abuse began when she was a
16-year-old newlywed and continued throughout 11 years of marriage. The
couple has a 12-year-old daughter and 6-year-old son, now living with
relatives in Guatemala.

"Some nights I don't sleep at all," she said. "I think of all that has
happened. I'm very sure if I were not here, I would be dead."

Usually her husband put the children in the yard while he abused her, she
said. But once, when she tried to take the children and flee to a new
house, she said, he tracked them down and beat her unconscious in front of
them.

On occasion, she called the police and even filed a formal complaint. But
she said she was told that "he was my husband. They couldn't insert
themselves in the matter of a couple." The courts told her the same thing.

She said she tried to take an overdose of pills. When she was revived, she
said, her husband told her that she was not going to die or leave him.
"You're going to stay here, even without any feet or any arms," she quotes
him as telling her. Finally, she waited until her children were away in May
1995, got on a bus and left for good. She ended up in San Francisco with no
money or knowledge of the United States, she said.

Just days after Alvarado's arrival in the United States, INS issued its
gender guidelines. The guidelines warned that female refugees might fear
authority figures during questioning and that sexually abused women "may
appear numb . . . or show emotional passivity."

Alvarado's asylum claim was granted by Immigration Judge Mimi S. Yam of San
Francisco in 1996, but the INS promptly appealed. It said she did not fall
under one of the five protected categories under the law.

Deborah Anker, head of Harvard University's immigration and refugee clinic,
said Thursday that the appeals board decision was contrary to a growing
body of international authority.

"Gender is an immutable characteristic, and persecution on account of
gender violates the most fundamental rights that the Refugee Convention was
clearly intended to address," she said, referring to the 1951 international
agreement on which U.S. asylum law is based.

Even as they issued the decision, the board majority acknowledged the
possible danger facing Alvarado if she returned home.

"The respondent in this case has been terribly abused and has a genuine and
reasonable fear of returning to Guatemala," the opinion says.

Nevertheless, the majority concluded that "the solution to the respondent's
plight" does not exist in U.S. asylum laws "as they are currently formulated."

The dissent, written by board member John Guendelsberger, contends that the
majority opinion is contrary to U.S. law, prior board decisions and federal
court decisions.

"The respondent has a fundamental right to protection from abuse based on
gender," the dissenting opinion states.


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