Advocates for victims of abuse, refugees and women's human rights won a major victory last week when the U.S. Department of Homeland Security announced its support for Rodi Alvarado's claim to asylum. Alvarado is seeking to escape a life of unremitting violence at the hands of her husband in Guatemala.

For eight years, the U.S. government has opposed Alvarado's request for asylum. That changed last Thursday, when the U.S. Department of Homeland Security (DHS) filed a 43-page brief with Attorney General John Ashcroft offering a detailed legal argument for why Alvarado should be granted asylum under U.S. law. The decision is now in the hands of the Attorney General.

"There is now no good reason for Attorney General Ashcroft to delay," said Family Violence Prevention Fund President Esta Soler. "The Department of Homeland Security has recommended asylum for Rodi Alvarado, and there is no reason to keep her in limbo any longer."

"Too many nations make no effort to stop or punish domestic abuse or other forms of violence against women," Soler continued. "We ask the Department of Homeland Security and the Attorney General to move quickly in this case, and to issue broad regulations that ensure that our nation will offer asylum to women fleeing gender-based violence, just as we grant asylum to people fleeing political, religious and other forms of persecution."

The Center for Gender and Refugee Studies (CGRS) and the Family Violence Prevention Fund (FVPF) have led the struggle to recognize women fleeing gender-based violence as refugees. "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," said CGRS Director Karen Musalo, Alvarado's attorney.

Women's and refugee groups have long championed Alvarado's case. Key partners include 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.

Alvarado's Ordeal

Rodi Adali Alvarado Peña fled her native Guatemala and came to the United States in 1995 to escape brutal domestic violence. Over the course of her decade-long marriage, her husband turned their home into a virtual torture chamber. A former soldier in the Guatemalan army, he beat, whipped and kicked her into unconsciousness, threatened her with machetes and guns, and dragged her by her hair, breaking windows and mirrors with her head. Because police and courts rebuffed her repeated pleas for help, Alvarado concluded that the only way to save her life was to flee her country and seek refuge far away from her vicious husband.

She fled to the United States in 1995. Shortly after Alvarado arrived, the INS issued guidelines that recognized gender-based persecution as a basis for asylum. Although they were non-binding, the guidelines noted that women are often victims of persecution particular to their gender, including rape and domestic abuse. In 1996, a judge granted Alvarado asylum based, in part based on those guidelines. But the Immigration and Naturalization Service (INS) appealed the ruling, and in a ten to five decision in 1995, the Bureau of Immigration Appeals (BIA) denied Alvarado asylum.

Advocates say that Alvarado's claim for asylum status in the United States has been subject to unusual scrutiny. In one of her last acts in office in 2000, Attorney General Janet Reno vacated the BIA's decision, instructing the BIA to reconsider the Alvarado case after the INS and the Justice Department finalized new regulations that made gender-based violence a possible ground for granting asylum. The regulations were never finalized, and Bush Administration Attorney General John Ashcroft took the case under advisement. With this latest development, the DHS urges Ashcroft to end Ms. Alvarado's odyssey with a grant of protection.

DHS Brief

Because the DHS is in the process of finalizing new regulations on gender-based asylum that would govern claims such as Alvarado's, its brief urges the Attorney General to dispose of her 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 he 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."

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."

The DHS brief makes significant statements on important legal and policy issues. Most importantly, DHS agreed 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 stated 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." 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.

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