Last month, the Associated Press reported that Rodi Alvarado, a Guatemalan woman who first arrived in the United States in 1995 and whose asylum case was in limbo in immigration courts for nearly 15 years, was finally granted asylum by an immigration judge in San Francisco. Ms. Alvarado had suffered years of abuse from her husband and applied for asylum on the basis of membership in a particular social group, one of the five grounds on which an individual can qualify as a refugee. A victim of domestic violence, Ms. Alvarado was initially granted asylum by an immigration judge in 1996, but in 1999, the Board of Immigration Appeals (BIA) reversed the grant in what has become a well-known opinion in the area of asylum law, In re R-A-.
The United States has recognized that domestic violence asylum applicants may bring valid claims for asylum, which requires an applicant to show a well-founded fear of persecution on account of race, nationality, religion, membership in a particular social group, or political opinion. In addition, either the applicant’s government or an individual or group that the government is unwilling or unable to control must inflict this persecution. The difficulty with Ms. Alvarado’s case in 1999 was that the group she claimed membership in was not a particular social group according to the BIA—the majority also did not find that her group, “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination,” demonstrated a nexus between her husband’s conduct toward her and her membership in this group.
Despite the BIA’s denial of asylum, Ms. Alvarado was not removed from the country. Instead, several Attorneys General took action because of the implications decisions such as this would have on gender-based asylum claims, namely those by domestic violence victims. Shortly after In re R-A- was decided, Janet Reno placed a stay on this case until regulations proposed in December 2000 on asylum and withholding definitions were finalized. In 2008, Michael Mukasey lifted a second stay (which was placed by John Ashcroft) so the case could be reconsidered in light of developments in the case law.
It is uncertain exactly what led to the grant of Ms. Alvarado’s asylum claim – one possible explanation is the arrival of a new presidential administration and leadership in the Department of Homeland Security that favored granting asylum in these cases. As of now, however, there is no uniform way for adjudicators to handle cases brought by domestic violence victims, since the particular social group category is not one which applicants can easily satisfy. In addition to having a “common, immutable characteristic”, the group must be “socially visible” and have enough “particularity” so that one can distinguish between members of this group and other members in society and recognize that this group is being harmed because of their status.
As of today, the Department of Homeland Security has yet to finalize the regulations it proposed on amending parts of the definition of refugee such as “persecution”, “particular social group” and the “on account of language” or the nexus between the persecution and the particular social group. In the last several months, and recently after Ms. Alvarado was granted asylum, the Department has stated that it is working on these regulations so that cases involving victims of domestic violence can be handled more consistently. Until then, there may be other women such as Ms. Alvarado whose cases lie in waiting.
To learn more about gender-based asylum and claims by victims of domestic violence, please visit the following links:
Barbara Barreno, a second-year student at Vanderbilt University Law School, is NLLSA’s South Atlantic Regional Director.