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Gender-Based Persecution as a Basis for U.S. Asylum

Rodi Alvarado is a Guatemalan woman.  At age 16, she married Francisco Osorio, a Guatemalan soldier.  For the next ten years, Osorio systematically abused Rodi in the cruelest of manners; she was beaten, threatened with death, and/or sexually assaulted on an almost daily basis.  Protests or resistance merely brought forth worse treatment and assurance by Osorio that, as her husband, he had a right to treat her any way he wanted.

Efforts to leave Osorio, as well as attempts to enlist the aid of the police and courts in Guatemala for protection, proved fruitless and elicited death threats.  She was told that such abuse was a “domestic” matter, therefore officials would not get “involved.”  Osorio boasted to Rodi of using a baby for shooting practice when he was a soldier and wrapping people in grass mats, dousing them with gasoline, then burning them alive.

Osorio made it clear he would have no compunction about killing Rodi or maiming and scarring her if she left him.  He promised to track her down and force her return no matter where she fled for safety.  Rodi tried suicide, but eventually fled the country in 1995. When faced with deportation from the U.S., Rodi applied for asylum and withholding of deportation.

Standards for Granting Asylum

In order to qualify for asylum, the applicant must have suffered persecution or have “a well-founded fear of persecution,” if forced to return home, on account of race, religion, nationality, membership in a particular social group, or political opinion.  The persecution must be perpetrated by the government or a quasi government organization, or by persons or a group the government is unwilling or unable to control.  There must be a link between the persecution and membership in a particular group.

Rodi argued that her husband’s abuse of her was linked to persecution of a Guatemalan social group, “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination.”  The Immigration Judge found Rodi credible and granted her asylum in 1996.

Action by the BIA and Afterward

The government sought review of the decision, and the Board of Immigrations Appeals (BIA) reversed in 1999.  Over a strong dissent, the majority of BIA members held that the alleged social group was unacceptable, plus a link between the alleged social group and the persecution was lacking (Osorio was not abusing her because she was a member of the alleged social group).  They found that Rodi had not shown that her husband abused her because she was a member of the alleged social group; there was also no showing he would abuse any other Guatemalan woman in the group.

The decision sparked a storm of criticism and controversy, as it was seen as eliminating gender persecution as a basis for asylum and turning a blind eye to the severe persecution of women endemic in some societies. In December, 2000, before leaving office, then Attorney General Reno issued proposed regulations.  She also overturned the BIA decision and ordered it to reconsider Rodi’s case after the new regulations were finalized.  The proposed regulations recognized that, even though domestic violence occurs within the family or intimate relationships, it centers on power and control over the victim.  Such patterns of behavior may not be private matters when they are supported by social norms that condone and perpetuate them, in which case asylum may be justified.

Brief Submitted by the DHS and Promises of Final Regulations

Proposed regulations are usually finalized after a relatively short period of public comment.  The gender-based asylum regulations had still not been finalized by the Bush Administration by the beginning of 2004, despite being introduced in December of 2000.  In February, 2003, Attorney General Ashcroft ordered the BIA to send Rodi’s case to him for decision; many feared that he might uphold the BIA’s decision and denial of asylum.

The new Department of Homeland Security (DHS) was given responsibility for revising and finalizing the regulations for gender-based asylum, in cooperation with the Department of Justice.  In February, 2004, the BIA allowed further briefing in Rodi’s case and the DHS filed a brief urging the Attorney General to grant asylum to Rodi.

The DHS argued that Rodi would be entitled to asylum both under current law and under the new regulations.  According the DHS, Rodi was persecuted as member of a group comprised of “married women in Guatemala who are unable to leave the relationship.”   Rodi did not have to show that her husband would be likely or willing to persecute any other woman in this group.  The DHS did not wish to establish a new procedure or blanket certification of victims of domestic abuse as entitled to asylum.  The DHS argued determination for asylum must be made on a case-by-case basis and may not be appropriate in all domestic abuse cases.