The Case of Rodi Alvarado
In Guatemala in 1984, at age sixteen, Rodi Alvarado married Francisco Osorio, twenty-one, a former soldier. He became violent almost immediately and abused her for ten years without respite. He dislocated her jawbone, kicked her violently, and raped her repeatedly. Once she attempted suicide. The Guatemalan police and courts refused to intervene because it was a ‘‘domestic’’ matter. Finally, in 1995, she fled to the United States; she was forced to leave her two children behind with relatives. As of this writing, she has not seen her children since.
In 1996, her request for asylum was granted, but the immigration service appealed. The decision was reversed on appeal and it was ordered that Ms. Alvarado be deported to Guatemala. In its divided decision, the court stated:
We agree . . . that the severe injuries [she] sustained rise to the level of harm sufficient (and more than sufficient) to constitute persecution. . . . [and] that she has adequately established . . . she was unable to avail herself of the protection of the Government of Guatemala in connection with the abuse inflicted by her husband. . . . [W]e find that [she] has been the victim of tragic and severe spouse abuse. We further find that her husband’s motivation, to the extent it can be ascertained, has varied; some abuse occurred because of his warped perception of and reaction to her behavior, while some likely arose out of psychological disorder, pure meanness, or no apparent reason at all. . . . We are not persuaded that the abuse occurred because of her membership in a particular social group or because of . . . political opinion. We therefore do not find [her] eligible for asylum. . . .
The decision in the case known as Matter of R. A. has been widely criticized by scholars, lawyers, and activists in the fields of domestic violence and refugee law, particularly for its failure to understand basic concepts of domestic violence and to incorporate international human rights law principles. In the years following, the decision has been reviewed by Attorneys General Janet Reno and John Ashcroft, resulting in the withdrawal of the decision, denying her claim and calling for the immigration agency to issue regulations detailing the appropriate considerations for assessing women’s asylum claims before Alvarado’s case can be reviewed again. As of this writing, her case remains unresolved and the regulations, first called for in 2001, have not yet been issued. Although the decision has been retracted, its impact has led to denials of cases of women seeking asylum from human trafficking, honor killing, sexual slavery, and rape, as well as domestic violence. At the same time, violence against women has become better understood and some women have been able to gain protection in the United States.
Domestic Violence as a Violation of Women’s Human Rights
Domestic violence against women occurs all over the world and transcends all boundaries—race, class, age, religion, education, culture, and ethnicity. Its very prevalence has made it difficult to gain the kinds of international protections and recourse for women that have long been available for other kinds of human rights violations. Historically, human rights standards have been defined and interpreted based on a male perspective. Inherent in this male-oriented view is a prejudice that addresses the ‘‘public’’ realm differently from the ‘‘private.’’ Under this view, the worlds of politics, business, science, and social development are seen as the province of men, the ‘‘public’’ realm, and thus subject to outside regulation and governance. The home, the family, and the community are viewed as constituting the ‘‘private’’ realm and are therefore immune to interference from government and far from the jurisdiction of international human rights protections. Although this private sector is considered women’s world, it is also seen as a sanctuary for men—where they are to be free from restraint and public scrutiny. Under this construct, domestic violence is seen as a woman’s personal, private ‘‘problem’’ to be worked out within the family. At worst, it is considered the aberrant behavior of a particular man—it is not seen as a social, cultural, or political matter.
At the turn of the twenty-first century, this view of violence against women has been shifting. International human rights law has grown to recognize these harms as human rights violations. Rape is now considered a crime of war and a violation of the right to bodily integrity. At least under some circumstances, harms against women typically committed in the home or private sphere are seen as warranting governments to take preventative action and to enforce punitive penalties once they have occurred. As the international framework shifted to include the private sphere in its ambit, it allowed for a host of conduct against women, including domestic violence, to be understood as human rights violations.
One of the first documents to reflect this broadened understanding is the 1993 Declaration on the Elimination of Violence against Women, which states that violence against women is a ‘‘manifestation of historically unequal power relations between men and women’’ and that this is ‘‘one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.’’ Another historical marker was the 1994 inauguration of a new United Nations office, the Special Rapporteur on Violence Against Women, its Causes and Consequences. In her seminal report, the first Special Rapporteur, Radhika Coomaraswamy, stated: ‘‘Violence against women in general, and domestic violence in particular, serve as essential components in societies which oppress women, since violence against women not only derives from but also sustains the dominant gender stereotype and is used to control women in the one space traditionally dominated by women, the home.’’
As understood in the human rights context, violence in the family includes battering, rape, and sexual assault, and the threat of any of these by husbands, fathers, or other males in the household, and encompasses physical, psychological, emotional, and mental abuse. The understanding of violence against women has vastly improved over the course of the 1990s and into the 2000s, and many international documents recognize violence against women in all its forms as human rights violations. Nevertheless, a tremendous gap between theory and practice remains. States still fail to provide necessary protection, to implement and enforce appropriate laws, to exercise the political will, and to create social climates that deter and penalize violations of these fundamental human rights. In spite of these persisting difficulties and the many women whose suffering goes unabated, much groundwork has been laid that may lead to greater opportunities for women to gain protection from violence. For many women, the only way to obtain protection is to flee to another country.
As is true of many women trapped in abusive relationships, women who flee such relationships seeking protection often do so only as a last resort when all else has failed. Few of these women think of themselves as refugees deserving of international protection. They simply want to escape. The question is, are they refugees?
Who Is a Refugee?
Refugees are people who have been forced to abandon their homes, family, friends, livelihoods, and homelands. Some flee hurriedly in response to an immediate threat. Others reach the decision to leave their country after a long period of uncertainty, fear, and anxiety, when all other options have failed. All have had their lives disrupted by forces beyond their control and would be at grave risk if forced to return to the place they fled.
People fleeing en masse from some terrible natural or political disaster such as the 2004 tsunami in Indonesia or the atrocities that occurred in the mid- 1990s in the former Yugoslavia and in Rwanda are common images of refugees. Another classic image is the political dissident protesting against a despotic regime, arrested and detained in secrecy, held in isolation, and tortured into confessing to acts he may never have committed. People fleeing these kinds of harms most certainly exist, and every year a small number of them manage to arrive on U.S. shores seeking protection. Many other people flee equally appalling and desperate situations from countries where there is no protection available for them, where the harms they fear are condoned, if not practiced, by government officials.
There are no exact figures available on refugee populations, but in December 2004 the estimated number of refugees worldwide—people fleeing their country of origin due to fear of great harm—was between 11.5 million to as many as 19 million. Women and children are believed to make up between 50 and 80 percent of the refugee population. Of the total number of refugees in 2004, less than 500,000 were found in the North (Europe, Canada, and the United States), where they could request the protection of asylum law, and the number of women among them was very small. Few records of refugees and asylum seekers are disaggregated by age or by gender, so exact numbers are not available. Estimates from early 2004 indicate there were approximately 500 asylum cases raising gender-related harm pending in the United States.
‘‘Refugee’’ is both a descriptive and a legal term, with a precise meaning. Descriptively, whenever people flee their home due to circumstances beyond their control, they are commonly referred to as refugees. The many people living in refugee camps or restricted areas, such as the Burmese in Thailand or the Afghans in Pakistan, are considered refugees even if they have never received any official recognition as such. As a matter of law, to be deemed a refugee, each individual must have the reasons for his or her flight assessed by an official adjudicator, and if at the end of this process he or she is determined to be a refugee, certain protections are afforded, most notably that the person cannot be forced to return to the country he or she fled.
The definition of a refugee is found in the International Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (Refugee Convention). The Refugee Convention states, in relevant part, that a refugee is ‘‘any person who . . . owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of [sic] a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.’’ Many countries, including the United States, use the same or similar language in their own definition of a refugee.
In the United States, there are two different ways a person can receive protection based on the refugee definition. One is by being determined to be a refugee by an immigration official stationed abroad to make these assessments. Those designated as refugees through this process receive papers identifying them as such and allowing them to enter and live in the United States and have certain legal protections. Very few people come to the United States as refugees through this overseas process. According to U.S. government records, in 2004 the total number of people allowed to enter as refugees was 52,835, up from 28,300 in 2003.
The other way of achieving protection as a refugee in the United States is to arrive at any official port of entry, which includes airports as well as other designated areas, and then request asylum. This entails a thorough application and adjudication process in which the individual must establish that he or she meets the definition of a refugee. Anyone who ultimately prevails in doing so is granted asylum and is accorded permission to remain in the United States, to work, and to travel. Although in general more people receive protection through this process than by being granted refugee status abroad, the overall numbers of asylum claims that have been granted have been low. Government statistics reflect a total of 27,321 people granted asylum in 2004, not including those whose cases were decided on appeal, for which there are no numbers available; in 2003 that number was 28,753.
There are several other remedies under U.S. law that would allow a person fearful for their safety, life, or freedom in their country of origin to remain in this country. These have some similarities with asylum protections but have a higher burden of proof and include refraining from sending a person back to the country of origin if it is established that his or her life or freedom would be in danger, and protection under the Convention Against Torture, as provided for under U.S. law.
Seeking Asylum in the United States
The 1980 Refugee Act is the U.S. law governing the protection of refugees and asylum seekers. This law is based on the international Convention Relating to the Status of Refugees, as modified by the 1967 Protocol to the Refugee Convention. In the relevant part, the law states that a refugee is
any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
To receive the protection of asylum in this country, four essential elements must be satisfied. There must be a reasonable possibility that the individual would face harm if forced to return to his or her country of origin, or, in light of the harm the applicant suffered in the past, it would be inhumane to force him or her to return there. The harm feared or suffered in the past must constitute persecution as that term is understood and defined under U.S. law. The harm has been or would be inflicted by a government or by an individual or group that the government either cannot or will not control. The harm or persecution must be inflicted upon the person for reasons related to the person’s race, religion, nationality, political opinion or membership in a particular social group, or any combination of these.
The term ‘‘persecution’’ is not defined in the Refugee Convention or in the U.S. Refugee Act. Over time, the courts have given the term meaning as they have examined whether the harm raised in specific cases could be said to ‘‘rise to the level’’ of persecution or not. The term is still not conclusively defined, but violations of fundamental human rights, severe harm, torture, and in some cases, threats of any of these, have been recognized as constituting persecution. In the context of women’s asylum claims, some of the advances in the human rights field have been brought to bear, and harms that have been found to constitute persecution now include rape, female genital cutting, honor killing, domestic violence, and forced compliance with repressive social norms such as deprivation of education or employment opportunities or forced marriage. Among the harms raised by women asylum seekers, perhaps the most controversial is the fear of domestic violence, with no protection available in the home country.
Asylum Protection for Women Fleeing Domestic Violence
Domestic violence has been recognized as a basis for granting asylum protection in a number of countries, including the United States. In 1995 the United States issued guidelines for the adjudication of claims of women asylum seekers, and these state that domestic violence can provide the basis for an asylum claim. Yet essentially it remains at the margins of human rights and refugee protections and is an especially thorny area of asylum law. Some surmise that one reason for this is precisely because domestic violence is so pervasive and cuts across all distinctions such as race, class, religion, age, sexual orientation, socioeconomic background, education levels, and country of origin. Certainly, domestic violence occurs in the United States. The National Domestic Violence Hotline website estimates that in a given twelve-month period, four million women in the United States experience serious assault by a partner and that as many as one out of three women around the world has been beaten, coerced into sex, or otherwise abused during her lifetime. Under asylum law, the number of people potentially affected by a certain group or type of harm does not determine whether any given individual is eligible to receive protection. Each claim must be evaluated on its own merits and granted or denied accordingly. Nevertheless, the prevalence of domestic violence may interfere with an adjudicator’s ability to assess a given asylum claim.
Two additional reasons given for the precarious status of domestic violence as a basis for asylum claims also raise complex concerns in meeting the definition of a refugee under the law. One of these is the question of state responsibility and its role in allowing or enabling a ‘‘private actor’’ to perpetrate the harm. Both human rights law and refugee law recognize state responsibility for human rights violations by nonstate actors, and asylum law has applied this principle in situations where it has been shown that the state either cannot or will not control the actor in question. The Refugee Convention and U.S. law are also clear that the state does not have to be actively involved in committing the persecution; the absence of state protection can be enough to support state responsibility.
In asylum cases raising domestic violence, a key component of determining whether the state can be responsible for failing or refusing to act depends on a variety of factors. Some countries have laws that condone violence against women or that simply do not include it as punishable conduct. Other countries have ‘‘obedience’’ or ‘‘modesty’’ laws that require a woman’s submission to her husband or other male authority figures and give that person an explicit or implicit right to discipline his wife, relative, or partner. In other countries, women are deemed the property of their fathers or husbands. In still others, there may be laws against certain kinds of violence against women but they are largely unenforced or women lack the resources for or are denied access to the systems that might enforce them. In some situations, women are discouraged from seeking justice and protection because the system holds them responsible, blaming them for ‘‘inciting’’ or ‘‘instigating’’ it or for refusing to be compliant and submissive to their husband’s demands. In some societies, family, religious, and community members support the husband and urge the woman to work out their differences, or to simply not complain and to stay with or return to her abuser. All of these factors and more present deep obstacles for women who wish to receive protection, support, and assistance in their home country, and can ultimately lead to the decision to flee and seek refuge and safety elsewhere. These same factors, if they can be established to the satisfaction of an asylum adjudicator, can support the view that the state is responsible, either through its own actions, such as laws that condone domestic violence, or through a failure to act, such as police refusing to take a woman’s complaint.
In establishing the role of the state when the persecutor is a private actor—a spouse, partner, or family member—the lack of state protection can itself provide an essential element in establishing persecution. Where the facts and circumstances in the home country demonstrate it, this view states that the state has failed to take action because domestic violence is accepted by the state and society, precisely because it happens to women. Under this view, women are the targets of persecution by men in part because they know, or have reason to believe, that their crimes will go unpunished.
A second principal difficulty in being granted asylum based on domestic violence is establishing that the violence has been or will be inflicted ‘‘on account of’’ one of the five grounds—race, religion, nationality, membership in a particular social or political group. A woman might be able to show that her spouse or partner abused her because of religious differences. For example, in one asylum claim, a young woman showed that her father beat her because she would not comply with his strict, fundamentalist religious views. Even though they shared the same religion, she was able to convince the court that both her and her father’s religious views were consistent with their faith and that her father abused her because she would not adhere to his narrower interpretation of the religion. Domestic violence claims that can be put in the context of religious differences seem to have the greatest chance of success, perhaps because the courts do not have to examine the underlying social and cultural context and can simply determine that different interpretations of religious views allow for greater or lesser control of women’s behavior.
A woman might also be able to show that she suffered abuse due to her political opinion. Some women have raised feminist views, such as the belief in independence, the belief in the right not to be forced to submit to another’s will, and the belief in the right to be free from physical abuse, as the reason a spouse or partner abused them. This approach is more difficult. Domestic violence is seldom perpetrated solely as punishment for specific ‘‘bad acts’’ and is rarely done rationally or predictably, although certain indicators may often be present, such as consumption of alcohol. Generally, it is very difficult to establish with specificity the exact trigger of domestic violence. In the context of asylum, where the actions occurred far away and there are not likely to be witnesses or documents proving the abuse, the burden of proving the facts can be daunting. Nonetheless, at least one U.S. court found that a woman’s husband subjected her to domestic violence because of her political opinion in opposition to his patriarchal views, finding that she established that he beat her only when she expressed opinions or acted in ways that defied his beliefs.
A request for asylum that raises race or nationality as the reason for the spouse’s abuse might prevail if she can show that that was the reason her partner abused her. This is not a common approach to domestic violence asylum claims.
The reason for persecution most frequently presented in domestic violence asylum claims is membership in a ‘‘particular social group.’’ This ground was added to the Refugee Convention because, according to many historians, the Convention was aware that it would not be possible to categorize every individual or group who might ever be in need of international protection. This category is viewed by many as a ‘‘catch-all’’ for claims that might not easily fall under any other ground. Under U.S. law, social groups can be defined by a variety of characteristics. For example, certain clans or ethnic groups have been found to constitute a social group, as have members of a family. In order to be convincing for asylum law purposes, a social group must be defined broadly enough that it encompasses more than just the person seeking asylum, yet it must be narrow enough that it is distinguishable from the rest of the population. For example, a group comprising all women in Afghanistan who wear the chador may be seen as too broad, while a group comprising women who refuse to wear the chador in public may be seen as a particular social group.
One position that has been successful in some countries is that women themselves constitute a particular social group. Proponents of this view consider that a fundamental understanding of the discriminatory laws and societal norms that give rise to and condone the persecution of women in the first place lead to the conclusion that women form a ‘‘particular social group’’ for asylum purposes. The failure or refusal of the state to intercede or protect them supports this view: Women are viewed as separate or different from others in the society, less deserving, and as such, unlikely to receive protection under circumstances where other members of that society would.
Established law provides clear criteria for identifying a ‘‘particular social group’’: groups defined by an innate or unchangeable characteristic; individuals who associate voluntarily for reasons so fundamental to their sense of self and human dignity that they should not be forced to change; and groups whose members are associated by a former, unalterable status. U.S. and other courts have determined that the first definition would include sex, or in contemporary terminology, ‘‘gender,’’ yet no U.S. court has ever granted asylum to a woman based on her gender alone.
Courts have granted domestic violence asylum claims using the social group category, and the definitions of the social groups have varied widely. One immigration judge found the group to be ‘‘Ivorian Muslim women who have suffered spousal abuse at the hands of their husbands and who are perceived as having disgraced their husbands by obtaining a divorce and failing to conform to the subservient role of women in Cote d’Ivoire’’; other groups have been defined simply as family members. Although membership in a particular social group is the category most often used when presenting a request for asylum-based on domestic violence, because this area of the law is unresolved, requests that can rely on one of the other grounds of persecution may have a greater chance of success.
Following the retraction of the decision in Rodi Alvarado’s case, no official precedent exists as of 2006 under U.S. asylum law concerning domestic violence, and although her request remains unresolved as of this writing, claims based on domestic violence have been granted since her case was first presented. Other countries have also given asylum to women fleeing domestic violence, including Spain, the United Kingdom, Canada, Australia, and New Zealand. Yet, the claims of women asylum seekers continue to meet denials due to erroneous interpretations of the refugee definition and a fundamental lack of understanding of applicable human rights norms and relevant country conditions. Many compelling cases of egregious human rights violations have been denied, contrary to controlling law and established norms. The treatment of asylum claims raising gender-based persecution, particularly domestic violence, remains controversial and uncertain. The law has moved both forward and backward, and the final outcome is far from determined.
- Amnesty International USA. Women’s Rights. http://www.amnestyusa.org/our-work/issues/women-s-rights.
- Center for Gender and Refugee Studies of Hastings College of the Law. http://cgrs.uchastings.edu/.
- ———. ‘‘Gender Asylum Campaigns: Rodi Alvarado’s Story,’’ n.d. http://cgrs.uchastings.edu/campaigns/update.php.
- Copelon, Rhonda. ‘‘Recognizing the Egregious in the Everyday: Domestic Violence as Torture.’’ Columbia Human Rights Law Review 25 (1994): 291–367.
- Gillespie, Shanyn. ‘‘Terror in the Home: The Failure of U.S. Asylum Law to Protect Battered Women and a Proposal.’’ George Washington Law Review (2003): 131–158.
- Goldberg, Pamela. ‘‘Any Place But Home: Asylum in the United States for Women Fleeing Intimate Violence.’’ Cornell International Law Journal 26, no. 3 Symposium (1993): 565–604.
- ———. ‘‘Where in the World is There Safety for Me?: Women Fleeing Gender-Based Persecution.’’ In Women’s Rights Human Rights: International Feminist Perspectives, edited by Julie Peters and Andrea Wolper. London and New York: Routledge, 1995, pp. 345–355.
- Hueben, Elizabeth A. ‘‘Domestic Violence and Asylum Law: The United States Takes Several Remedial Steps in Recognizing Gender-Based Persecution.’’ University of Missouri Kansas City Law Review (2001): 453–469.
- Human Rights Watch. ‘‘Women’s Rights: Domestic Violence.’’ http://www.hrw.org/topic/womens-rights/domestic-violence.
- ———. ‘‘Women’s Rights: Refugee and Internally Displaced Women’’ http://www.hrw.org/topic/womens-rights/refugee-and-internally-displaced-women.
- Musalo, Karen. ‘‘Matter of R-A-: An Analysis of the Decision and its Implications.’’ 76 Interpreter Releases (August 9, 1999): 1177–1182.
- National Domestic Violence Hotline. ‘‘Abuse in America.’’ http://www.thehotline.org/get-educated/abuse-in-america/.
- Thomas, Dorothy Q., and Michele E. Beasley. ‘‘Domestic Violence as a Human Rights Issue.’’ Albany Law Review 58 (1995): 1119–1147.
- Von Sternberg, Mark. ‘‘Battered Women and the Criteria for Refugee Status.’’ World Refugee Survey (2000): 40–47.
Cases, Statutes, and International Treaties Cited:
- 1951 Convention Relating to the Status of Refugees, United Nations, Treaty Series, Vol. 189, p. 137, and the 1967 Protocol Relating to the Status of Refugees, United Nations, Treaty Series, Vol. 606, p. 267.
- Declaration on the Elimination of All Forms of Violence Against Women, Adopted by General Assembly Resolution 48/104, 20 December 1993.
- Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).
- Matter of R-A-, Int. Dec. 3403 (BIA 1999), withdrawn pursuant to 22 I&N Dec. 906 (A.G. 2001).
- Matter of [Name withheld], [number withheld], slip op. at 13 (IJ Oct. 24, 2001) (New York) (Chew, IJ).
- Matter of S-A-, 22 I&N Dec. 1328 (BIA 2000) (father beat, imposed isolation, and deprived daughter of education because of his orthodox Muslim views concerning the proper role of women in Moroccan society and because her liberal Muslim beliefs were inconsistent with his own).
- The 1980 Refugee Act, as codified in the Immigration and Nationality Act, 8 U.S.C. §§101(a)(42) and §1158; 8 U.S.C. §101(a)(42) and §1157.
- United Nations Special Rapporteur on Violence Against Women: Its Causes and Consequences, Preliminary Report. UN Doc E/CN.4/1995/42; Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, E/CN.4/1996/53; Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, E/CN.4/2003/75.