January 27, 2005

Although he had taken over the case nearly two years ago, Attorney General John Ashcroft has now declined to decide whether to grant asylum to Rodi Alvarado, a Guatemalan battered wife. It is still uncertain whether Ms. Alvarado will be allowed to remain in the United States or be deported to Guatemala. Attorney General Ashcroft was expected to issue a ruling that would have had wide ramifications in other cases where women seek asylum for gender-related persecution, like threats of honor killing. The Department of Homeland Security had issued a legal brief formally advising the Attorney General to uphold asylum for Ms. Alvarado.

Rodi Alvarado's case prompted the U.S. government to issue proposed regulations that will instruct immigration judges on how to deal with such cases. Those regulations have not yet been issued in final form. Attorney General Ashcroft sent Ms. Alvarado's case back to the same court from which he took it nearly two years ago, the Board of Immigration Appeals. He ordered the BIA to reconsider the case in light of the new regulations, after they are finally issued.

Rodi Alvarado remains in limbo, still unable to petition for her children to join her, although she has spent a decade in the United States without seeing them. Still, Attorney General Ashcroft's decision not to deny her asylum represents an important victory, and was due in no small part to an estimated 50,000 letters and messages sent to him on her behalf by Amnesty International members and others.

BACKGROUND:

The terrible facts of Rodi Alvarado's case are undisputed. She fled Guatemala and applied for asylum in the United States in 1995, after suffering ten years of relentless domestic abuse. Her husband Francisco Osorio, a former soldier, attempted to abort their second child by kicking her in the spine, dislocated her jaw, tried to cut her hands off with a machete, kicked her in the genitals, and used her head to break windows and mirrors. Ms. Alvarado sought assistance from the Guatemalan police and the courts – in vain.

A U.S. Immigration Judge granted Ms. Alvarado asylum in 1996, finding that the abuse that she suffered, together with her government's unwillingness or inability to protect her, constituted persecution. But a series of subsequent decisions have left her in legal limbo for years. The Immigration and Naturalization Service (INS) appealed her grant of asylum, and in 1999, the Board of Immigration Appeals (BIA) reversed the grant of asylum. In 2001, Attorney General Janet Reno vacated the decision, proposed regulations to recognize gender-related persecution claims, and directed the BIA to decide the case again after the proposed regulations became final. Those regulations never became final, however, since Reno left office soon afterward. Attorney General Ashcroft announced in March 2003 that he would make a final decision in Rodi Alvarado's asylum case.

AMNESTY INTERNATIONAL'S CONCERNS:

AI believes that the immigration judge correctly granted asylum to Rodi Alvarado and that Attorney General Reno acted properly in vacating the BIA's decision. Along with nearly 100 other human rights, women's rights, and faith-based organizations, Amnesty signed an amicus curiae ("friend of the court") brief that was submitted to the Department of Justice Friday February 13, 2004. Nearly 100 law professors also signed the brief.

If the Board of Immigration Appeals fails to recognize gender-related violence as a legitimate basis for recognition as an asylee, it would have wide-reaching, negative implications. First, Ms. Alvarado would be deported to Guatemala, where she faces battering and possible killing by her husband. Second, the decision and regulations could establish national law denying asylum to women in a wide range of cases where their gender is a central reason that they suffer severe violations of their fundamental rights. Finally, that would bring the United States into conflict with recent United Nations guidelines on gender persecution, and out of step with countries that recognize government-tolerated gender-related violence as a basis for asylum, including Canada, the United Kingdom, Australia, and New Zealand.

As the case is now back before the Board of Immigration Appeals, an administrative court, letter-writing actions at the moment are not appropriate. Amnesty International will continue to monitor the case closely, however, and will issue further actions as needed. Also, legislation was introduced in the U.S. Congress on January 26, 2005 that could also limit the ability of women victims of abuse to establish asylum claims. Amnesty International will issue actions relating to that legislation shortly.


Refugee Program: 600 Pennsylvania Avenue, SE, Ste. 300, Washington, DC 20003 T. 202.544.0200x497 F. 202.544-7852 E-mail. refugee@aiusa.org

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