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January 24, 2005

Asylum News 35

AG Ashcroft Sends Domestic Violence Case Back to Appeals Board

Partial Victory — But Rodi Alvarado's Life Remains in Limbo

Attorney General John Ashcroft has issued an order sending the landmark asylum case of Rodi Alvarado, a survivor of brutal domestic violence, back down to the immigration appeals board.  Although the Attorney General did not grant asylum to Ms. Alvarado as recommended by the Department of Homeland Security, it is significant that the outgoing Attorney General Ashcroft, in sending the case back to the Board of Immigration Appeals, did not deny asylum to Ms. Alvarado.

Impact of Ashcroft’s Decision

In addition to impacting Rodi Alvarado, a negative decision by the Attorney General would have undermined this country’s protection of women who flee from domestic violence, honor killings, sexual trafficking and other egregious harms.  Ms. Alvarado received broad-based support in her asylum claim from a bi-partisan group of over 100 Members of Congress and a diverse coalition of faith-based groups and human rights organizations spanning the political spectrum. Over 50,000 people across the country have written to the Attorney General in support of Rodi Alvarado.

Rodi Alvarado, who has been in legal limbo for years already, now will have to wait even longer to get the protection she deserves.  The Attorney General could have granted asylum to Ms. Alvarado.  She is eligible for asylum under well established US law — as the Department of Homeland Security concluded nearly a year ago.  The Department of Homeland Security has confirmed that it will not deport Ms. Alvarado. But until Rodi Alvarado is actually granted asylum her status is uncertain and she cannot bring her children here to end their lengthy separation.

What’s Next?

The fate of Ms. Alvarado and of other women who have fled from domestic violence, honor killings and other harms now rests with the Department of Homeland Security and the Department of Justice.  Rules addressing these kinds of claims are expected to be issued later this year. Given the legal position taken by the Department of Homeland Security in this case, the regulations should recognize that in appropriate circumstances, women like Rodi Alvarado who suffer from certain kinds of violence can be eligible for asylum.

Human Righst First urges the Department of Homeland Security and others to take the steps necessary to ensure that Rodi Alvarado is promptly granted asylum and that the regulations – consistent with well established law and the Department’s position in this case – ensure the protection of Rodi Alvarado and other women who have fled from brutal violence.

Background on Rodi Alvarado Case

Rodi Alvarado fled severe domestic abuse in Guatemala. Her husband brutally beat and attacked her over a period of ten years, and her repeated requests for protection were ignored. Ms. Alvarado’s immigration status has been in limbo since she fled Guatemala in 1995 to escape the abuse.  Although an immigration judge granted her asylum after finding that her husband had inflicted severe abuse and that she was unable to seek protection from the Guatemalan government, the Board of Immigration Appeals (BIA) reversed the immigration judge’s decision in 1999.

Then Attorney General Reno vacated the BIA decision to deny asylum to Ms. Alvarado, and the former INS issued proposed regulations clarifying that victims of domestic violence and other gender-related persecution are eligible for asylum.  However, these proposed regulations never became final.

On March 19, 2003, the BIA notified Ms. Alvarado’s attorneys that the Attorney General had re-certified the case to himself — sparking widespread concern that he would issue a decision limiting the ability of women who flee from gender persecution and other gender-based violence to receive asylum in the United States.

On Thursday, February 19, 2004, the Department of Homeland Security filed a brief supporting asylum for Ms. Alvarado.  The prior INS had initially opposed asylum in Ms. Alvarado’s case — a position that was not supported by either U.S. or international law.  (The functions of the INS were transferred to the Department of Homeland Security in March 2003.)

In its brief, the Department of Homeland Security urged the Attorney General to grant asylum to Ms. Alvarado, but not to issue a broad decision that could impact on other cases.  DHS stated that it planned to issue regulations that would provide guidance in cases involving similar issues.  To read the DHS brief, click here.

Ms. Alvarado is represented by Karen Musalo and the Center for Gender and Refugee Studies at UC Hastings College of Law.  An amicus brief in support of Ms. Alvarado’s asylum eligibility was filed in February 2004 on behalf of a wide range of almost 100 human rights, women’s rights and faith based organizations, as well as almost 100 law professors. That brief, drafted by the Harvard Law School Immigration and Refugee Clinic at Greater Boston Legal Services, urged the Attorney General to uphold the immigration judge’s decision to grant Rodi Alvarado asylum and cited to established principles of U.S. and international law.

Human rights and humanitarian organizations including Human Rights First, Amnesty International, Human Rights Watch and the International Rescue Committee as well as faith based groups including the United States Conference of Catholic Bishops, the Hebrew Immigrant Aid Society, the Presbyterian Church USA and World Relief (the human service arm of the National Association of Evangelicals) had signed on to the amicus brief.

A wide range of diverse organizations concerned with women’s issues have also urged that the Attorney General rule in favor of Ms. Alvarado. These groups include the Family Violence Prevention Fund (FVPF), Legal Momentum (the former NOW Legal Defense and Education Fund), as well as conservative groups like Concerned Women for America which urged Attorney General Ashcroft in a letter supporting a grant of asylum to Ms. Alvarado “[t]o give refuge to such a woman as this is exactly what our asylum policy exists for, and to turn her away would be an act of pointless cruelty.”

To read an op-ed written by Wendy Wright of Concerned Women for America and Cory Smith of Human Rights First, click here.

On Friday, January 21, it was confirmed that the Attorney General Ashcroft had issued an order on January 19 which “remanded” Ms. Alvarado’s asylum case back to the Board of Immigration Appeals.

To learn more about gender and asylum in the U.S. visit our website.