Gender Violence: The In R-A- Aylum Case Saga

 Students in Birdsong’s Refugee Law seminar and others should know of the now ‘infamous” aylum case concerning abused women.  It is the case of In R-A-, a case of gender violence wherein the victim sought asylum in 1995.  The case, after many reversals and proposed  INS regulations is yet to have been resolved.  This excerpt is from a Birdsong article pusblished in the Nova Law Reveiw which appeared in the Spring of  2008:

 Iin 1995 came the gender violence case that continues to cause controversy with respect to how we apply asylum law to women who are subjected to extreme domestic abuse.  In In re R-A- a Guatemalan woman, Rodi Alvarado Pena, sought asylum in the United States.  She had fled her country to escape a husband who, for at least ten years, had abused her, beaten her, broken a window and a mirror with her head, kicked her in her vagina when she was pregnant, raped and sodomized her, and had threatened to kill her if she ever left him.  The police would not help her.  The IJ found her testimony credible and granted asylum on the grounds that she was a member of “a particular social group,” i.e., Guatemalan women who have been involved with Guatemalan male companions, who believe that women are to live under male domination.[1]

            Despite the earlier Kasinga decision, in 1999 the BIA reversed the IJ’s decision and such reversal was affirmed by the Attorney General.  The BIA held that Guatemalan women who have been involved intimately with Guatemalan male companions who believe that women are to live under male domination is not a particular social group.  Absent from this group’s makeup is a voluntary associational relationship that is of central concern in the Ninth Circuit.[2]  The In re R-A- has had a tortured history and is a primer for why abused women have more trouble obtaining asylum under the statute than LGBT persons. [3]

                        Musalo summarizes the tortured history in the In re R-A- case :

In 1999 a majority of the BIA — the same body that had granted [Kasinga’s ] case three years earlier — reversed the immigration judge’s grant of asylum to Rodi Alvarado.  The BIA attempted to distinguish the two cases to justify the grant in one case and the denial in the other.

 The ongoing ambivalency on the issues of gender asylum became apparent approximately eighteen months after the BIA’s decision when the Department of Justice (DOJ) issued proposed asylum regulations to address claims of gender persecution.  The preamble to the regulations explicitly states that their purpose is [to] remove “certain barriers that the In re R-A-decision seems to pose” to claims for asylum based on domestic violence.  Within a little more than a month of issuing the proposed regulations, then Attorney General Janet Reno took the unusual step of exercising her authority to review the decision in In re R-A-. She then vacated the denial of asylum, and sent the case back to the BIA instructing it to reconsider the case when the proposed regulations were issued as final.[4]

             The aforementioned “proposed regulations,”[5] first proposed in December 2000, have yet to be finalized. The finalization of these regulations became more complicated with the 2003 reorganization of immigration functions pursuant to the Homeland Security Act.[6] They were proposed at the end of the Clinton administration and it is now almost the end of the Bush administration.  Bureaucratic infighting and opposition by a number of groups with competing interests may keep the proposed regulations from ever being finalized. Alvarado’s status  still remains in limbo while she awaits a final end to her odyssey.

                        The main problem with the proposed regulations appears that they make it more difficult for women like Rodi Alvarado to obtain asylum than under the current case law.  Existing case law recognizes that once an asylum applicant has proved she was persecuted, she must demonstrate that such persecution was “on account of race, religion, nationality, membership in a particular social group, or political opinion.”  Thus, she must establish the persecutors frame of mind.  At present it is only necessary for her to establish that at least one of the protected categories was one of the motivations, even if it appears that a persecutor had mixed motives for inflicting the persecutory harm.[7]  Under the proposed regulations, she “must show that the protected characteristic is “central to” the persecutor’s motivation for persecution.[8]

                        Although this would be a difficult evidentiary bar to hurdle, another commentator reminds us:

In fact, the proposed rule stresses that applicants may rely on circumstantial evidence demonstrating “patterns of violence in the society against individuals similarly situated to the applicant” in order to establish motive.  The INS reasons that this evidence may reflect a country’s societal norms and demonstrate the relevant legal system’s support for the persecutory conduct.  According to the INS, this societal context may help reveal an abuser’s belief that he possesses the authority to batter and control his victim “on account of” of her inferior position in the relationship.[9]

                         Notwithstanding the thorny concerns presented by In re R-A-, recent cases cited below demonstrate that persecution of LGBT persons,[10] as well as persecution of women who are victims of gender violence, has become increasingly accepted as grounds for legal asylum in the United States.[11]  It is often easier for LGBT to obtain asylum because homosexuals have been certified as a “social group” for purposes of asylum and usually not required to make a case by case showing of their status.  As In re R-A- demonstrates, it is much more difficult for women who are persecuted by domestic partners or family members to show that they are persecuted “on account” of membership in a definite, distinct social group. The In re R-A- situation can be remedied by adoption of my fourth proposed amendment recommendation herein.

[1]  See In re R-A-, 22 I &N Dec. 906, 911-17 (BIA 2001).  The IJ  found that such a group was cognizable and cohesive, as members shared the common and immutable characteristics of gender and the experience of having been intimately involved  with a male companion who practiced male domination through violence.


[2]  Id. at 918; see also 927, where the court concluded that “it found that the respondent had been the victim of tragic and severe 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 an actual or imputed political opinion.  We therefore do not find respondent eligible for asylum.


[3]  Cf. Gomez v. INS, 947 F.2d 660, 662-663 (2d Cir. 1991). Earlier, in 1991, a Salvadoran woman had been denied political asylum as not being in a cognizable particular social group. Carmen Gomez had been born in El Salvador and lived there until she was eighteen.  Between the ages of twelve to fourteen she was raped and beaten by guerilla forces on  each of five occasions. After living in the U.S. for almost a decade, she pled guilty to a sale of a controlled substance, served time in jail, and was placed in deportation proceedings.  She claimed asylum on the ground of fear of persecution because she was a member of a particular social group: women who have been previously battered and raped by Salvadoran guerillas.  The IJ denied her claim of asylum.  The BIA affirmed.  The Second Circuit Court of Appeals dismissed her petition on the ground that Gomez failed to produce evidence that women who have previously been abused by the guerillas possess common characteristics – other than gender and youth- that would be persecutors could identify them as members of the purported group.


                The BIA further held that there was no indication that Gomez would be singled out for further brutalization. The court indicated it did not suggest that women who have been repeatedly and systematically brutalized by particular attackers cannot assert a well- founded fear of persecution but found that Gomez had demonstrated that she was no more likely to be persecuted than any other young woman.


[4]  See The Center For Children, Families, And The Law Interdisciplinary Conference; “Welcome to America: Immigration, Families, And the Law”; Protecting Victims of Gendered Persecution: Fear of Floodgates or Call To (Principled) Action?, 14 Va. J. Soc. Pol’y & L. 119, 125 (2007).


[5] See Asylum and Withholding Definitions, Thursday December 7, 2000 /Proposed Rules. 65 Fed. Reg. 76588 2000.


[6]  See The Center For Children, supra  note 87 at 128. “Whereas prior to the reorganization, the regulations were within the sole jurisdiction of the DOJ, they are now within the joint jurisdiction of the DOJ and the DHS, which means that both agencies will need to reach some consensus on the regulations before they can be finalized.  In the meantime, the DHS, formerly the INS, which had appealed the original grant of asylum to Rodi Alvarado and opposed her claim for eight years, changed its position, filing a brief in February 2004 in which it argued that she was eligible for recognition as a refugee.”


[7] See Borja v. INS, 175 F.3d 732,736 (9th Cir. 1999)(en banc) (holding that the applicant must produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground); and Singh v. Ilchert, 63 F.3d 1501, 1509-10 (9th cir. 1995) (finding that persecutory conduct may have more than one motive, and so long as one motive is one of the statutorily enumerated ground, the requirements have been satisfied).


[8]  65 Fed. Reg. at 76598.

[9] See Jenny-Brooke Condon,  Asylum Law’s Gender Paradox, 33 Seton Hall L. Rev. 207, 224 (2002).


[10] E.g., see Lesbian From Turkmenistan Wins Asylum In U.S, In May 2007 a lesbian from the former Soviet republic of Turkmenistan was granted asylum.  The woman, whose name is being withheld because of fears of reprisal by the Turkmenistan government against family members still in the country, had entered the U.S. on a tourist visa and then applied for refugee status.  Although there is no specific law against lesbians in Turkmenistan, they are discriminated against in employment with few ever getting jobs.  In some cases, in the mostly Muslim country, lesbians are forced by their families into marriages. .

See, also the cases of, Shahinaj v. Gonzalez, 481 F.3d 1027 (8th Cir. 2007) involving an Albanian homosexual who was beaten by police when he reported election fraud in an Albanian election; Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005) wherein an “outed” gay, Shi’ite Muslim man from Lebanon afflicted with AIDS, who was able to reverse an IJ’s finding that his fear of future persecution was not well-founded; Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005) which involved a Mexican homosexual man who was forced to perform oral sex on a high-ranking Mexican police officer; and  Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003) wherein the court remanded back to the BIA the case of a Ghanaian man who did not identify himself as homosexual but  feared persecution in Ghana because there was evidence that his persecutors imputed to him membership in a  “particular social group” as a homosexual.


[11] E.g., see Angoucheva v INS, 106 F.3d  781 (7th Cir. 1997) In this case a Bulgarian woman claimed asylum based on past persecution on an account that she was sexually assaulted by a state security officer which event caused her to flee Bulgaria.  The Seventh Circuit vacated and remanded her BIA denial of asylum on the ground that she may have been persecuted because of her Macedonian nationality; Shoafer  v.  INS,  228 F.3d  1070 (9th Cir. 2000) wherein the claimant, an Ethiopian woman of Amharic ethnicity petitioned for review of her denial of asylum by the BIA.  The Ninth Circuit held that her rape by a  government official of Tigrean ethnicity, who was her boss,  was motivated at least in part by the applicant’s Amharic ethnicity, and that she was persecuted on account of her nationality and remanded the case to the BIA; and Zubeda v Ashcroft, 333 F. 3d  463 (2d Cir. 2003) which involves a claim of asylum by a 28  year old woman from the Democratic Republic of the Congo where she was raped and imprisoned by soldiers during that country’s civil war in 2000.  The Third Circuit vacated and remanded the BIA’s order denying asylum and withholding of asylum for providing only a minimal analysis of Zubeda’s claims of degrading treatment or punishment under the Convention Against Torture. See also, Ali v. Ashcroft, 394 F.3d 780 (9th Cir. 2005). This case involved a Somali woman whose brother-in-law was shot and killed in her home while she was being raped by members of a militia group of a rival clan who opposed Ali’s political beliefs.



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