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Advocates for refugees and women's human rights have won a dramatic victory with the Department of Homeland Security's announcement of its support for Ms. Rodi Alvarado's claim to asylum from a life of unremitting violence at the hands of her husband in Guatemala. After eight long years in which the government opposed her claim, on Feb. 19 the Department of Homeland Security (DHS) filed a 43-page brief with Attorney General John Ashcroft that forcefully argues that Ms. Alvarado is a refugee and lays out a detailed legal argument explaining its rationale for why she should be granted asylum under U.S. law. The decision now remains in the hands of the Attorney General.
The Center for Gender and Refugee Studies (CGRS) and the Family Violence Prevention Fund (FVPF) have played a central role among those groups leading the struggle for recognition as refugees of women fleeing gender-based violence. CGRS Director Karen Musalo, who represents Ms. Alvarado, stated, "We welcome the unequivocably positive step represented by the government's position in its brief, and Rodi Alvarado expresses her gratitude to the DHS for supporting her struggle to gain protection from the brutal violence she suffered for so many years."
Over the course of her decade long marriage, Rodi Alvarado's husband turned their home into a virtual torture chamber. He beat, whipped and kicked into unconsciousness, threatened her with machetes and guns, and dragged her by her hair, breaking windows and mirrors with her head. Her repeated pleas to the police and courts of Guatemala were rebuffed, until she concluded that the only way to save her life was to flee her country and seek refuge far away from her vicious husband. After first being granted asylum in 1996, Ms. Alvarado's claim for asylum status in the United States has been subject to unusual scrutiny, which has brought it before two successive attorney generals – Janet Reno and John Ashcroft. With this latest development, the DHS urges John Ashcroft to end Ms. Alvarado's odyssey with a grant of protection.
Because the DHS is in the process of finalizing regulations to govern claims such as Ms. Alvarado's, it urges the Attorney General to dispose of the case without a detailed decision that would establish precedent. Should the Attorney General reject DHS's request to dispose of the case in this manner, DHS requests that the A.G. postpone a decision until the final regulation is published, noting that under the rule "as the DHS plans to finalize it, [Rodi Alvarado] would be eligible for asylum." [Brief at 6]. If the Attorney General decides not to follow either of these two requests, and opts to issue a precedent decision instead, DHS requests that that decision be "narrowly tailored and limited as much as possible to the facts of this case." [Brief at 4].
DHS's brief makes a number of significant statements on important legal and policy issues. Most significantly, DHS agrees with refugee and women's rights advocates that it is not necessary to develop any special legal principles or new legal framework in order to analyze claims based on domestic violence. DHS states that such cases are to be analyzed under "generally applicable requirements for asylum" and that its rule on the issue will be "drawn from established concepts of asylum law." [Brief at 5]. This point is especially significant in light of the often-repeated criticism that gender claims require some distortion of normal legal principles or call for "special treatment" under asylum law.
Ms. Alvarado's case has long been championed by women's rights and refugee rights groups, and this latest development is an indication of the success of their ongoing efforts to educate the public and policy makers on this issue. Key partners in the effort include the Family Violence Prevention Fund, Human Rights First, Amnesty International- USA, the amicus team at Harvard Law School and Greater Boston Legal Services, the National Immigration Project of the National Lawyers Guild, and the Women's Commission for Refugee Women & Children.
Stephen Knight, Coordinating Attorney