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Documents and Information on Rody Alvarado's Claim for Asylum in the U.S.

Background
Legal Documents
Advocacy
News Articles

Current Update

On December 10, 2009 Rody Alvarado was finally granted asylum, ending her fourteen year legal battle.

On remand before the immigration judge, CGRS argued that the only outstanding issues were whether Ms. Alvarado's proposed social group fulfilled the new requirements of visibility and particularity, because these were the only changes in law since the 2004 DHS brief – which conceded that Ms. Alvarado had established all the necessary elements for asylum and argued that she qualified for protection as a member of a particular social group. The judge agreed and limited the issues. The parties concurred that CGRS would submit written evidence to address the outstanding issues and that DHS would file a response, clearly stating its position.

CGRS’s filing was submitted on August 19, 2009. Prior to the filing date,  in a separate case involving  a Mexican woman known as “L.R.”, DHS attorneys under the Obama Administration had unexpectedly filed an amended brief in the case, asserting that women who have suffered domestic violence may qualify for asylum based on membership in a particular social group if they meet certain, clearly defined criteria. The DHS brief in L.R., which was widely reported on in national media outlets and which provides a roadmap for how to establish membership in a particular social group in a domestic violence asylum case, served as a template for CGRS’s legal memorandum in the August filing in the Alvarado case.

CGRS argued that Ms. Alvarado's proposed social group – "married women in Guatemala who are unable to leave the relationship" – was defined by immutable characteristics and fulfilled the new social visibility and particularity requirements. In addition to the legal memorandum, CGRS submitted affidavits by two leading experts on domestic violence in Guatemala. In October 2009, the DHS filed its response in the case, taking the position that Ms. Alvarado was “eligible for asylum and merits a grant of asylum as a matter of discretion.” On December 10, 2009, the immigration judge issued a summary decision granting Ms. Alvarado asylum. The decision simply stated: “Inasmuch as there is no binding authority on the legal issues raised in this case, I conclude that I can conscientiously accept what is essentially the agreement of the parties [to grant asylum].” With this decision, Ms. Alvarado’s long struggle for protection was finally resolved.

 

In September 2008, Attorney General Mukasey certified Matter of R-A- to himself and issued a decision ordering the BIA to reconsider it, removing the requirement that the BIA await the issuance of proposed regulations. This decision meant that the BIA could immediately begin to consider Matter of R-A-, as well as many other cases that had been placed on hold pending a decision in Matter of R-A-. However, because the case was litigated prior to the BIA decisions requiring an asylum applicant to establish the social visibility and particularity of the social group to which she belongs (see In re C-A-, 23 I. & N. Dec. 951 (BIA 2006), In re A-M-E- & J-G-U, 24 I. & N. Dec. 69 (BIA 2007), In re S-E-G-, 24 I. & N. Dec. 579 (BIA 2008)), the record in Ms. Alvarado's case does not specifically address social visibility or particularity. CGRS approached the Department of Homeland Security, asking it to join in a joint motion to remand the case back to immigration court, so that Ms. Alvarado would have the opportunity to present evidence on the social visibility of her proposed social group. DHS agreed to join in the motion, and on December 4, 2008 the BIA granted that motion and remanded the case back to the San Francisco immigration court.

January 2005: Attorney General Ashcroft remanded Matter of RA back to the BIA.

January 2005: Attorney General Gonzales avoided Senators' questions on the issue of protecting women refugees during his confirmation hearings.

June 2004: eighteen Senators urged the Attorney General to follow DHS's recommendation and grant asylum to Rody Alvarado.

Letters to the Attorney General were sent by the US Conference of Catholic Bishops, Episcopal Migration Ministries, Lutheran World Relief, the Anti-Defamation League, the Leadership Conference on Civil Rights, Hebrew Immigrant Advocacy Society, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and others.

 

Background

Rody Alvarado Peña is a Guatemalan woman who suffered ten years of brutal violence at the hands of her husband, a former soldier.  Despite her repeated attempts to obtain government protection, the police and the courts refused to intervene. When she ran away, her husband found her and beat her unconscious. Desperate to save her life, Ms. Alvarado finally fled to the United States, leaving her two children with relatives.

She was fortunate to obtain the help of the San Francisco Lawyers Committee for Civil Rights. In 1996, a San Francisco immigration judge granted Rody asylum. But the immigration service chose to appeal. Karen Musalo, now director of the Center for Gender and Refugee Studies and lead attorney in the landmark Kasinga case, coordinated and co-authored an amicus brief submitted to the Board of Immigration Appeals (BIA).

In June 1999, the BIA reversed the decision of the immigration judge, and ordered that Ms. Alvarado be deported to Guatemala.  The decision in Matter of R- A- led to denials of asylum protection to women fleeing a broad range of serious human rights violations, including trafficking for prostitution, gang rape and honor killing, as well as domestic violence. In the wake of the BIA's decision, Karen Musalo assumed sole responsibility for Rody's legal appeal.

In January 2001, then-Attorney General Janet Reno responded to a nationwide campaign of outrage and concern by overturning the BIA's decision. She ordered the BIA to issue a new decision in Rody's case after the issuance of proposed Department of Justice regulations on the subject of gender asylum. Those regulations have never been finalized by the Bush Administration.

Key Legal Documents

Attorney General decisions:

Briefs, Guidelines and Other Documents:

Advocacy

Letter to Attorney General Ashcroft from 49 members of the House (Feb. 27, 2003), initiated by Rep. Gregory Meeks.

Amnesty International USA's Refugee Action NSA 3/03

CGRS, Amnesty International USA and the Family Violence Prevention Fund together call for INS to drop its appeal of Rody Alvarado's 1996 grant of asylum  (March 2002).

Congresswoman Lucille Roybal-Allard (D-CA) quizzed INS Commissioner Ziglar about INS progress on the social group regulations during his appearance before the House Appropriations Committee (March 7, 2002).

In September 2000 members of both the House and Senate sent letters to the Attorney General in September, again urging her to take immediate action to reverse Matter of R-A-.  In response, in October 2000 she met with concerned members of Congress to discuss their concerns.

On February 14, 2000, Senators Leahy, Brownback, Jeffords, Kerry, Kennedy, Feingold and Schumer sent a letter to Attorney General Janet Reno asking her to reverse the BIA's decision in an honor killing case, referring to Matter of R- A- and expressing concern that "the BIA lacks sufficient understanding of current standards in both United States asylum law and policy and international human rights law."

On December 2, 1999, five Senators sent the Attorney General a letter expressing their concern about Matter of R- A-.  Also, Senator Patrick Leahy (D-VT) made a statement on Ms. Alvarado's case.

Representatives Luis Gutierrez, Chris Smith, Connie Morella, Carolyn Maloney, & Rosa DeLauro, sent a letter to all House members, asking their support in asking the Attorney General to reverse Matter of R- A-, August 5, 1999. Dozens of members of the House of Representatives responded by signing a letter to the Attorney General.

Congressional Hispanic Caucus, letter to Attorney General Reno supporting Ms. Alvarado's asylum claim and requesting certification of Matter of R- A-, July 22, 1999

See Human Rights First's excellent web page on Gender & Asylum in the United States.

Amnesty International's original Refugee Action on the Alvarado case (NSA 6/99; May 25, 1999).

News Articles

Julia Preston, Woman's Asylum Case Sent Back to Review Board, The New York Times, September 30, 2008.

Edwidge Danticat, A Crime to Dream, The Nation, May 2, 2005.

Tina Sussman, Long wait for women seeking asylum as U.S. operates in legal vacuum, New York Newsday, March 31, 2005.

Peter Blumberg, Ruling Favors Women Who Seek Asylum, San Francisco Daily Journal, March 11, 2005.

Bill Frelick, Women Will Suffer Under Asylum Law, Journal Sentinel Online, February 26, 2005.

William Fisher, Legal Limbo for Battered Women Seeking Asylum, Inter Press Service, February 15, 2005.

Carmen Valenzuela, Abuse Victim's Asylum Claim Deserves Justice, Miami Herald, January 31, 2005.

Frank Davies, Ashcroft Declines to Resolve Asylum Case of Battered Women, Knight-Ridder News Wire, January 24, 2005.

Bob Egelko, Ashcroft Will Pass Asylum Case to Successor, San Francisco Chronicle, January 22, 2005.

John Files, Ashcroft Won't Aid Asylum Seeker, The New York Times, January 22, 2005.

Wendy Wright and Cory Smith, Grant This Woman Asylum, The Washington Post, October 8, 2004.

Editorial, A Haven for Abused Women, The New York Times, April 29, 2004.

Rachel Swarns, Ashcroft Weighs Granting of Political Asylum to Abused Women, The New York Times, March 11, 2004, at A1.

 

Both parties and two amicus briefs are all in agreement: Rody Alvarado should be granted asylum. Download here:

(1) DHS's brief

(2) Rody Alvarado's brief

(3) UNHCR's advisory opinion

(4) Harvard/GBLS amicus brief from 187 NGOs and law professors.

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