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INS Alert 2003-02-26, 11:01 p.m. Action Appeal Action Issued: January 22, 2002 Rodi Alvarado, from Guatemala USA On May 25, 1999, Amnesty International USA (AIUSA) issued its first action regarding the asylum case of Ms. Rodi Alvarado, a national of Guatemala (NSA 6/99). An immigration judge granted Ms. Alvarado asylum in 1996. The Immigration and Naturalization Service (INS) appealed. The INS won its appeal in June 1999, when a sharply divided Board of Immigration Appeals (BIA) reversed the grant of asylum to Ms. Alvarado. This decision, Matter of R-A-, set a precedent that had a negative impact on other gender-based cases. More on this Web site: Women's Human Rights Torture of Women Refugees Guatemala In December 2000, the Department of Justice and INS published draft regulations pertaining to women's asylum claims that criticize the BIA's decision and seek to "remove certain barriers" that it created. In January 2001, Attorney General Janet Reno issued an order vacating the BIA's decision. The Attorney General ordered that the BIA reconsider its decision based on the new INS regulations, after they are published in final form. One year later, the Department of Justice has yet to publish a final version of those regulations, and Ms. Alvarado's claim for asylum in the United States remains before the BIA. Altogether, Ms. Alvarado's claim for asylum has been pending for a total of six years, during which time she has been separated from her two children, ages nine and fourteen, who remain in Guatemala. Until she is granted asylum she has no legal right to bring her children. SUMMARY OF THE CASE Ms. Alvarado applied for political asylum when she was placed in deportation proceedings in 1995 for entering the United States without inspection. She had fled Guatemala, leaving behind her two children, after suffering a particularly brutal beating at the hands of her husband. Ms. Alvarado asserted that for nearly ten years, ever since she married a Guatemalan Army soldier when she was sixteen, she was subjected to intense abuse. Her husband raped her repeatedly, 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 vagina and used her head to break windows. Ms. Alvarado was refused official protection and assistance. Following a hearing, Ms. Alvarado was granted asylum by the Immigration Judge, who found that the abuse that she suffered, together with the government's unwillingness or inability to protect her, constituted persecution. The facts of Ms. Alvarado's story are not in dispute. Nor did the INS appeal the judge's finding that she faced persecution in Guatemala. Instead, INS argued, and the BIA in Matter of R-A- agreed, that Ms. Alvarado does not fit into any of the categories for asylum. However, the INS's own Considerations for Asylum Officers Adjudicating Claims from Women (Gender Guidelines), published in 1995 to guide the decisions of Asylum Officers, flatly state that government-tolerated domestic abuse can be considered to fit in the category of persecution on account of political opinion -- the political opinion being her beliefs about the role and status of women in society. Thus, even before the draft regulations, the published guidelines recognized that a claim to asylum may be premised on a well-founded fear of domestic violence. AMNESTY INTERNATIONAL'S CONCERNS As stated in NSA 6/99, AI believes that the Immigration Judge's grant of asylum to Ms. Alvarado was the appropriate decision in her case. AI believes that the INS decision to appeal in Ms. Alvarado's case indicates indifference or opposition to its own principles, as enunciated in the Gender Guidelines and the draft regulations. Further, AI believes that Matter of R- A- was one of many examples of U.S. officials seeking to narrow protection under U.S. asylum law, in direct contradiction of the international law and standards on which it was founded. AI is concerned over the INS's continuing opposition to a grant of asylum to Rodi Alvarado. INS's opposition is contrary to considerable progress that has been made towards the recognition of gender-based violence as a human rights violation, progress evidenced by the 1993 adoption of the Declaration on the Elimination of Violence Against Women by the United Nations General Assembly, the INS's own Gender Guidelines, and decisions in other countries. Countries around the world recognize government-tolerated gender-based violence as a basis for asylum, including Canada, the United Kingdom, Australia, and New Zealand. The European Union is currently considering a proposal to recognize gender persecution as a basis for asylum throughout the EU. SUGGESTED ACTION Please send letters to the following officials, addressing the following points and concerns: (1) Ask that the Department of Justice and INS exercise their discretion to drop their appeal of Ms. Alvarado's grant of asylum by the Immigration Judge. Withdrawal of the INS appeal would restore the grant of asylum Ms. Alvarado won in 1996, and would allow her to reunite with her children. (2) Stress the leadership role the United States has played on refugee issues internationally, and the importance of the protection of women throughout the world against gender-based violence - recognized as a basis for asylum by many countries. Express concern about INS's apparent continuing opposition to asylum for Rodi Alvarado, which is inconsistent with developing international standards, including the INS's own Gender Guidelines, and urge that the draft regulations be finalized with these standards in mind. LETTERS TO: Attorney General John Ashcroft United States Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 INS Commissioner James Ziglar 425 I Street, NW Washington, DC 20536 COPIES TO: George W. Bush, President The White House Washington, DC 20500
Anyone? - 2008-01-24
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