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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Time is running out for Rodi Alvarado Peña
by Irene Weiser

Time is running out for Rodi Alvarado Peña, and other abused women who seek asylum in the United States each year.

Rodi Alvarado, a Guatemalan refugee who was brutally abused by her husband, was lucky to escape before being murdered.  But her application for asylum in the US has been denied, and she now faces deportation back to the man who promises to kill her, in a country that will do nothing to stop him. Further, the court ruling used to justify Alvarado’s deportation is now being used to deny asylum to other women refugees who suffer a broad range of abuses such as gang rapes, forced prostitution, and honor killings (murder by men who believe their wives have dishonored them).

Attorney General Janet Reno has the authority to overturn this decision and to grant Rodi Alvarado asylum.  In so doing, she will also help ensure safe passage for other abused women who seek asylum in this country each year.  But she will have to act quickly – Reno’s appointment ends January 20, 2001.

Brutal Abuses (graphic content)

Rodi Alvarado Peña was brutally abused by her husband over the course of their ten year marriage.  She was raped, sodomized, whipped with electrical cords, kicked in the genitalia, bludgeoned with a pistol, dragged by her hair, and threatened with a machette.  When she was pregnant, her husband dislocated her jaw, and kicked her in the spine repeatedly, trying to cause an abortion. Whenever she tried to escape, he would bring her back, once beating her until she lost consciousness in front of their 2 children.  He told her that she could never get away from him, because he would "cut off her arms and legs, and leave her in a wheelchair, if she ever tried to leave him."

Government failed to protect

Rodi Alvarado was unable to obtain protection in her native country.  Neither the police nor the courts would intervene, saying that the violence she suffered was a private, family matter.  Nor could she obtain a divorce, since in Guatemala, the husband must consent to such proceedings.  She was not even able to find a domestic violence shelter to take her in –indeed, there were no government services for battered women in Guatemala. Rather, in Guatemala, civil code gives the husband legal authority to forbid his wife from engaging in activities outside of the home.

Rodi escapes

Finally, after a particularly violent beating, when her children were safely away at their grandparents, Rodi Alvarado, – desperate to save her own life – left for foreign lands.  Good samaritans helped her obtain passage to a place she had never heard of before -- the United States of America.  She arrived in the United States in May 1995, and was scheduled for an asylum hearing in California. 

Asylum granted

Under the 1980 Refugee Act, a person can be granted asylum only if she or he establishes a well-founded fear of persecution on account of one of five protected grounds:  race, religion, nationality, membership in a particular social group. or political opinion. 

In a September 1996 ruling, the Immigration Judge in San Francisco determined that Rodi Alvarado qualified for asylum.  Specifically, the judge found that Rodi Alvarado faced a well-founded fear of persecution because she was a member of a group of Guatemalan women married to men who believe women are supposed to live under male domination.  Additionally, the judge found that Rodi Alvarado faced persecution for expressing her political opinion against male domination.

Asylum revoked

The Immigration and Naturalization Service (INS) promptly appealed the Immigration Judge’s decision to a higher court, the Board of Immigration Appeals (BIA).  In a June 1999 decision, the BIA reversed the grant of the Immigration Judge by a 10-5 decision. They believed the abuses Alvarado testified to really occurred, but rejected the notion that United States asylum law could provide any protection.  They asserted that the particular social group cited by the Immigration Judge was not a real social group, nor were Alvarado’s attempts to leave a real expression of political opinion.

The BIA judges ordered Rodi Alvarado deported to Guatemala even though they believed that her husband had sworn to "hunt her down and kill her" if she returns.  Alvarado’s  deportation has been postponed while her lawyer, Jane Kroesche, seeks one last chance to appeal.

Other abused refugees affected by ruling

The BIA’s decision to deny Rodi Alvarado asylum now serves as a nationwide precedent for abused women refugees, and is having devastating effects.  Using the decision in Alvarado’s  case as justification, women refugees are now being denied asylum in cases of forced prostitution, gang rape and honor killing, as well as domestic violence.

Asylum ruling controversial

The BIA’s decision has been very controversial, and has garnered attention from the public media as well as from immigration, human rights, and domestic violence experts. 

“This decision is seriously flawed and based on the now discredited belief that domestic violence is not gender motivated.  It has serious negative consequences not only for women fleeing domestic violence, but for women fleeing a wide array of serious human rights violations inflicted on them because of their gender,” says Karen Musalo, director of the Center for Gender and Refugee Studies.

Other critics argue that the ruling is inconsistent with the INS’ own Gender Guidelines, as well as with a recent landmark INS decision granting asylum in the case of female genital mutilation. 

Most damning is the assertion by 5 BIA judges in their dissenting opinion, that “the majority opinion is at odds with our own [BIA] precedent, federal court authority and Department of Justice policy announcements…[the decision]…ignores international human rights developments and the guiding principal of the Charter of the United Nations, the Universal Declaration of Human Rights, and the 1951 Convention Relating to the Status of Refugees.”

New rules drafted

In response to concerns raised by the Alvarado decision, the INS released Proposed Rules to address Gender-Based Asylum Claims on December 7, 2000.  These rules do not specify how Rodi Alvarado’s situation should be decided.  Instead, the INS says the purpose of these rules is “to provide a broad analytical framework for the consideration of asylum claims based on membership in a particular social group.”  Immigration experts are currently reviewing the INS proposals, and are not yet ready to comment on their merits.  The deadline for public commentary on the rules is January 22, 2001 – two days into the new presidential administration.  The review and revision process after public input could be lengthy, and a date when the rules would take effect is uncertain.  Some activists fear the rules may never be finalized, since a new administration will likely want to conduct their own study and make their own recommendations.

No flood of refugees expected

While there are millions of women throughout the world who suffer human rights abuses each year, the sad reality is that very few have the resources to flee to foreign lands to seek refuge.  The INS reports that of over 42,000 applications for asylum in 1999, only 1085 were from women seeking asylum based on gender related persecution.  Further, they say that they do not expect a significant increase in asylum applications if the new rules are implemented.  This is consistent with findings in Canada, England, Australia and New Zealand, which have all opened their borders to abused women refugees; none have seen a flood of women seeking safety.

Rodi’s deadline

Meanwhile, time is running our for Rodi Alvarado. Her final appeal for asylum at the 9th Federal Circuit Court has been on hold – awaiting further review of the BIA’s controversial decision.  That postponement is set to expire January 26, 2001 -- a mere four days after the public commentary period on the new rules ends, and ages away from their implementation. While Alvarado’s attorney, Jane Kroesche, remains optimistic about the merits of her client’s case, she admits she can’t be certain how the court will decide in such a situation. 

Lingering bad precedent

Even if the court found in Rodi Alvarado’s favor and reinstated her grant of asylum, significant problems would remain.  The BIA’s decision to deny asylum sets a national precedent; whereas any ruling by the 9th Federal Circuit Court only applies in the 9th Circuit Court’s district.  Thus, the BIA’s decision to deny asylum to abused women refugees will remain in effect throughout the rest of the country until and unless the Rules addressing Gender-Based Asylum are enacted.

Reno’s decision

Attorney General Janet Reno has the authority to overturn the BIA’s decision and to establish a precedent that will provide abused immigrant women safe refuge when they come to our shores.  To date, 57 members of the House of Representatives, including all members of the Hispanic Caucus, and a dozen Senators have written to Reno, urging her to reverse the BIA’s decision before she leaves office.  There isn’t much time left – her appointment ends January 20, 2001..

ACT NOW to send a letter to Attorney General Janet Reno, urging her to protect abused women refugees by overturning the BIA’s decision in the matter of Rodi Alvarado Peña.


About The Author

To learn more about Rodi Alvarado Peña’s case and send an e-mail urging Attorney General Janet Reno to grant asylum visit http://www.stopfamilyviolence.org.

 



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