The Department of Homeland Security recently released a brief, submitted earlier this year, through which the Obama Administration voiced support for the proposition that asylum applicants fleeing domestic violence may be eligible to resettle in the United States.
For immigrant rights advocates -- among them our colleague, Professor Karen Musalo (below right), Director of the Center for Gender and Refugee Studies and the University of California Hastings College of the Law -- the statement in the DHS brief marked a turning point in the 14-year struggle to achieve clear guidelines for battered women seeking asylum in the United States.
The fight began in 1995 when Rodi Alvarado (left), a Guatemalan woman who had suffered years of horrific abuse at the hands of her husband in their home country, applied for asylum after fleeing to the United States. The immigration judge who heard Alvarado's testimony found her story of abuse credible and granted her asylum. The Immigration and Naturalization Service (now known as Citizenship and Immigration Services) appealed the decision, In the Matter of R.A., to the Board of Immigration Appeals. The Board--though finding Alvarado's testimony regarding her history of abuse credible -- reversed the judge's grant of asylum on the ground that she was not eligible for asylum. Rather than proceeding to the U.S. Court of Appeals for the Ninth Circuit for judicial review, the Immigration and Naturalization Service re-examined the case and disagreed with the Board.
In a 2000 response to this INS action, the Department of Justice published a proposed rule that set forth domestic violence survivors' eligibility for asylum. One year later, Attorney General Janet Reno vacated the Board's decision, instructing it to reconsider the case after the new rule was promulgated. But the rule never was finalized.
In 2003, Attorney General John Ashcroft certified Matter of R.A. to himself and ordered supplemental briefing on Alvarado's eligibility. Two years later, the litigation remained in administrative limbo, as Ashcroft remanded Alvarado's case to the Board, again ordering decision upon publication of a final rule.
In 2008 there still was no final rule governing domestic violence survivors' eligibility for asylum. At that point yet another Attorney General, Michael B. Mukasey, ordered the Board to reconsider Matter of R.A. in light the nine intervening years of relevant case law.
The protracted journey of this case underscores the confusion within the executive and judicial branches regarding the interpretation of U.S. asylum law applicable to domestic violence survivors. Under Section 101(a)(42)(A) of the Immigration and Nationality Act, an applicant is eligible for asylum if she can demonstrate a
well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
Applicants must also show both that their home country government is unable or unwilling to protect them and that internal relocation is not possible to avoid future persecution. The contentious issue in Matter of R.A. and similar cases concerns whether an applicant who has suffered domestic violence can demonstrate that she belongs in the "social group" category of asylees.
Alvarado's lawyers long have argued that Alvarado was persecuted by her husband because she belongs to a social group defined by her gender, marital status, and nationality (e.g. married women in Guatemala.) They have also argued that her husband persecuted her on the basis of her political opinion that women are not subordinate to men.
And that is where the DHS brief described above -- filed before the Board of Immigration Appeals on April 13, 2009, in an analogous case (also litigated by Musalo and her colleagues) -- comes in. The brief stated:
[I]t is possible that ... applicants who have experienced domestic violence could qualify for asylum ... based on alternative particular social group foundations.
Although it did not lay out a definitive test governing the grant of asylum in domestic violence cases,the brief did set forth some criteria that such applicants should satisfy. These include:
► Past abuse rising to the level of persecution;
► Well-founded fear of future persecution;
► Impossibility of avoiding future persecution by relocation within the applicant's home country; and
► Unwillingness or inability by the state to protect the applicant.
Time will tell how asylum officers and immigration judges will apply the criteria. Even so, the decision is being hailed as a positive step and welcome reversal of the Bush administration's position that battered women did not qualify for asylum.