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Background information
on gender and asylum issues4

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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

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.

CGRS's position is that the issues on remand should be limited because the DHS - in its 2004 brief to then Attorney General Ashcroft – fully evaluated Ms. Alvarado's claim and affirmatively argued that she qualifies for asylum as a member of the social group of “married women in Guatemala who are unable to leave the relationship.” The only changes since the 2004 brief are the added requirements of "social visibility" and "particularity" to establish a particular social group.  At a recent status conference, the immigration judge (IJ) agreed at this point to narrow the issues on remand to: 1) social visibility and particularity of Ms. Alvarado's social group, 2) whether there has been any change in circumstance to rebut the presumption of a well-founded fear of persecution, and 3) discretion.

The parties agreed that CGRS would submit written evidence addressing these issues and that DHS would file a response, clearly stating its position. CGRS's filing, due August 19, 2009, will include expert affidavits addressing the social visibility and particularity of Ms. Alvarado's particular social group. DHS will have until October 28, 2009 to respond. DHS may agree to a grant on the existing record, request a hearing in order to examine Ms. Alvarado's expert witnesses on social visibility and particularity, or oppose a grant of asylum. CGRS will engage in public education and media advocacy to build broad support for a favorable result.

CGRS intends to share materials from Ms. Alvarado's case with attorneys working on domestic violence asylum claims. Please continue to check the CGRS website for updates on this critical case.

 

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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