Hope for the future? The asylum claims of women fleeing sexual violence in Guatemala.

• Author: Reimann, Allison W.

INTRODUCTION I. Violence Against Women in Guatemala II. United States Asylum Law and Sexual Violence A. A Well-Founded Fear of Persecution: Sexual Violence as Egregious Harm B. An Actor the Government Is Unable or Unwilling to Control. C. Possession of a Protected, Characteristic D. Nexus Between the Persecution and the Protected Characteristic III. REGULATORY CHANGE IS NEEDED IV. FEAR OF OPENING THE ASYLUM FLOODGATES IS UNWARRANTED AND UNPRINCIPLED CONCLUSION INTRODUCTION

More than 3800 women in Guatemala have been murdered since 2001, (1) often following rape or sexual mutilation. (2) And while crime in Guatemala has generally been on the rise in recent years, the murder rate of women has gone up at a rate nearly twice that of men. (3) These murders are often described as "femicides," both due to the "misogynistic brutality" with which they are carried out and because the victims' gender provides their only unifying characteristic. (4) Though the gruesome circumstances and devastating results make it particularly alarming, femicide is only one of many types of violence facing women in Guatemala. In the first nine months of 2007, there were approximately 1800 reported complaints of domestic violence, although the actual number is likely higher due to significant underreporting. (5) Reports of rape have also risen thirty percent over the last four years. (6) Altogether, the pervasive problem of gender-based violence in Guatemala has created among its female citizens a "widespread perception of insecurity." (7)

Femicide, domestic violence, and sexual assault in Guatemala are interrelated problems representing many faces along a "continuum of gender-based violence." (8) All arise from the same root problems: first, a culture that devalues and subordinates women, as manifested by anachronistic criminal laws and gender-based discrimination in the home and workplace; and, second, widespread impunity for crimes against women that traces from the country's thirty-six-year civil war. Under the circumstances, it is far from surprising that many Guatemalan women have given up relying on the Guatemalan authorities for protection, but rather have fled their homes, seeking asylum in countries such as the United States. (9)

In the United States, an individual may be granted asylum if she qualifies as a "refugee," which requires (1) a well-founded fear of persecution (2) by the government or an individual that the government is unable or unwilling to control (3) on account of (4) race, religion, nationality, membership in a particular social group, or political opinion. (10) In principle, women are eligible to receive asylum within this framework to the same extent as men. (11) However, a number of obstacles have confronted women who seek asylum from gender-based harm. (12) Most prominently, gender is not one of the characteristics included in the asylum statute as expressly warranting protection. (13) Thus, applicants for asylum fleeing gender-based harm are forced to characterize their claims to fit into one of the five recognized categories--most often membership in a particular social group. (14) Because of pervasive attitudes among United States decision makers that gender alone cannot constitute a particular social group--largely out of fear that such an allowance would make half of a country's population eligible for asylum--applicants have felt constrained to describe their claims in terms of extremely narrow subsets of women. (15) Gender alone, however, is often the single factor linking the persecution to the protected ground, both motivating the persecutor to harm the victim and accounting for the failure of the victim's state to adequately protect her. Thus, these applicants face the paradox of defining their particular social group very narrowly only to render nearly impossible their ability to establish the required causal nexus between the persecution and their narrowly defined particular social group. (16)

Asylum claims of women fleeing gender-based violence in Guatemala are not new to United States immigration authorities. On June 11, 1999, the United States Board of Immigration Appeals (BIA) decided In re R-A-, (17) one of the most controversial gender-based asylum cases in United States history. (18) The petitioner, Rodi Alvarado, fled Guatemala in 1995 after suffering years of physical and sexual abuse at the hands of her husband. (19) He raped her repeatedly, beating her before and after; kicked her genitalia, causing her to bleed for eight days; forcefully sodomized her; pistol-whipped her; and violently kicked her in the spine when she refused to abort their fetus. (20) When she protested, he often responded, "You're my woman, you do what I say," (21) or "I can do it if I want to." (22)

Despite her pleas, the Guatemalan police would not or could not help Alvarado. (23) On three occasions her husband was summoned, but he failed to appear and the police took no further action. (24) Twice the police did not respond at all to her calls for help, and a judge told Alvarado that he would not intervene in domestic disputes. (25) Her husband insisted that calling the police was futile because of his connections with them through military service. (26) Alvarado knew of no shelters or organizations that could help her, so she fled to the United States and sought asylum. (27)

Alvarado based her asylum claim on the past persecution that she had suffered at the hands of her husband and on the failure of the Guatemalan government to protect her. (28) Alvarado claimed that she was persecuted as a member of a particular social group composed of "Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination," (29) and for the related imputed political opinion that she was against control and domination by men. (30) An Immigration Judge (IJ) found her credible and agreed with the legal basis of her claim, granting her asylum.

On appeal by the government, however, the BIA reversed the IJ, finding that Alvarado was ineligible for asylum. (31) The BIA agreed that Alvarado had a well-founded fear of persecution and that Guatemala was unable or unwilling to protect her from her husband. (32) Nonetheless, it held that she failed to demonstrate any of the characteristics protected by the statute (33) or, even if she did, that her husband had persecuted her "on account of" these categories. (34) The BIA concluded that Alvarado's husband had harmed her "regardless of what she actually believed or what he thought she believed," (35) and that her claimed social group was neither visible nor important in Guatemalan society (36)--much less the cause of her husband's behavior. (37) Accordingly, Alvarado was ordered to return to Guatemala--a country that the Board recognized was unable and unwilling to meaningfully assist her (38)--to face her husband's threat that he was "going to hunt her down and kill her if she [came] back." (39)

In re R-A- was immediately followed by a flurry of intense criticism for being inconsistent with BIA precedent and contrary to both United States and international guidelines on the evaluation of gender-based asylum claims. (40) In December 2000, following intensive advocacy by asylum advocates, (41) the Immigration and Naturalization Service (INS) (42) issued proposed amendments to the regulations governing asylum to provide "an analytical framework within which gender-related and other new kinds of claims should be considered" (43) that "remove[] certain barriers that the In re R-A- decision seems to pose." (44) Soon after the R-A- rule was proposed, former Attorney General Janet Reno, in an unusual move, exercised her authority to review In re R-A and stayed Alvarado's case until the BIA could reconsider it under the finalized amendments. (45)

In February 2003, former Attorney General John Ashcroft recertified the decision to himself, prompting fear that the BIA's decision in In re R-A- would be reinstated and that more restrictive asylum regulations would subsequently be promulgated. (46) The advocacy efforts of women's rights groups, human rights groups, and refugee rights groups are credited with staying Ashcroft's hand. (47) Nonetheless, in September 2008--during the waning months of the Bush Administration--Attorney General Michael Mukasey referred the case back to the Office of the Attorney General, lifted the stay, and remanded the case to the BIA. (48) While not expressly repudiating the proposed amendments, former Attorney General Mukasey noted that the proposed rule "never has been made final" and ordered that, on remand, "[i]nsofar as a question involves interpretation of ambiguous statutory language, the [BIA] is free to exercise its own discretion and issue a precedent decision establishing a uniform standard nationwide." (49) Thus, the future of asylum claims based upon domestic violence and other gender-based harm has become even more uncertain. (50)

The case of Rodi Alvarado highlights die legal and political struggle over the availability of asylum for women persecuted on account of their gender, in the face of a statutory framework that neither explicitly permits nor excludes such claims. It also exemplifies the crisis faced by women living in countries that are unable or unwilling to protect them from gender-based violence. Guatemala has gained notoriety due to the prevalence of sexual assaults and murders that manifest animus towards women, as well as the impunity with which the perpetrators act. (51) In re R-A- invigorated a push to open asylum to survivors of domestic violence from countries such as Guatemala. (52) Though a domestic violence case prompted the proposed R-A- rule, the rule itself purported to go even further, setting out "generally applicable principles" designed to address some of the "novel issues"--including claims based on the applicant's gender--that asylum...