Human Rights Reporting

Spring 2002 Student Work

Women migrants fleeing “macho” cultures being recognized as legitimate, oppressed refugees

By Stephen Desroches

In 1984, Rodi Adali Alvarado-Pena married Francisco Osorio in the rural village of Jutiapa, Guatemala. Francisco, a former soldier who joined a private security force, moved Rodi away from her family to Guatemala City, where her nightmare began.

Francisco bragged that in the military, he had the power to kill people at will and to carry a machine gun. During Guatemala’s vicious civil war, Francisco witnessed, and sometimes took part in, such horrors as burning people alive and killing women while their children watched. Being exposed to so much violence didn’t desensitize Francisco; it excited him. The military made Francisco, by the age of 21, a sadist. Rodi, only sixteen at the time, claimed that after her first beating, Francisco told her: “I am going to treat you the way they do in the military. What they demand of me, I demand of you.”

Over the next 10 years, the abuse increased in severity. The injuries Francisco inflicted, documented by her local hospital, included a dislocated jaw, nearly pushing out her left eye, attempting to cut off her hands with a machete, kicking her in the abdomen and vagina and repeatedly kicking her in the back in an attempt to make her miscarry their second child. He also dragged her by her hair, broke a window with her head, whipped her with pistols and electrical cords and held knives to her throat. Rodi claimed many of the beatings occurred in public, where most people, including the police, turned their heads as she screamed during the savage attack. When Francisco would rape his wife, both vaginally and anally, he would leave their two young children just outside the house. The sexual assaults, at times left her hemorrhaging, with excruciating abdominal pain and eventually, multiple sexually transmitted diseases. Francisco would say to her, “You’re my woman, and I can do whatever I want.”

It was true, in Guatemala; Francisco could do whatever he wanted to his wife. In the male-dominated culture of Guatemala, a woman cannot divorce her husband without his consent. Rodi had left her husband many times. But each time he would find her and bring her back. Her family could not help, as it is the husband who decides everything in macho Latin American cultures. The police view domestic violence as a private, family matter and believe they should not intervene. There are no shelters for battered women in Guatemala. Rodi realized her only chance to escape the violence was to leave Guatemala forever.

While her two young children were vacationing with her mother, Rodi left her husband in the middle of the night. She traveled out of Guatemala, through Mexico and sneaked across the border into Brownsville, Texas on May 16, 1995. The next day, U.S. border guards arrested her for violating immigration laws by entering the country without inspection. However, she was allowed to travel to San Francisco, California, until deportation proceedings began to be with a family friend. Rodi contacted the San Francisco Lawyer’s Committee for Civil Rights for help with her case. In December 1995, at her deportation hearing, Rodi with her pro bono attorney, Jane Kroesche, declared her intention to apply for asylum.

Under U.S. law, asylum applicants must have a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a social group. The persecution either needs to be at the hands of government agents or be the result of government inaction. Rodi and her attorney thought her case made her clearly eligible for asylum. The United States Department of State’s Bureau of Democracy, Human Rights and Labor issued a letter in Rodi’s case, acknowledging that “the complaints of spousal abuse by husbands have increased in the past year” in Guatemala and explained that it was a social problem throughout Latin America. In September of 1996, an immigration judge agreed and granted her asylum. However, in 1999 the Board of Immigration Appeals reversed the decision, by a vote of 10 to 5, and ordered Rodi to be deported. Outraged women’s rights activists lobbied the Department of Justice to change the decision. On her last day in office, Attorney General Janet Reno declared that gender, in some cases, is grounds for asylum. The Justice Department accepted recommendations to clarify the guidelines. The final decision was left to the incoming Bush administration. Rodi is still in the United States; Attorney General Ashcroft has not addressed the proposed guidelines nor the problems and inconsistencies that face women refugees in the INS.

Women fleeing various types of persecution find the Immigration and Naturalization Service (INS) is ill equipped with vaguely worded policies and general ignorance of the issues that face women worldwide. “There is a need for final regulations regarding women seeking asylum,” said Leslye Orloff, director of the Immigrant Women Program at the National Organization for Women (NOW). “At present, the situation is not favorable to women. The regulations are vague and the results are inconsistent.” INS officers and judges have granted asylum to women fleeing domestic violence before, as well as to women fleeing forced marriages, honor killings and sexual slavery. In 1996, with the Matter of Kasinga, the INS recognized women fleeing female genital mutilation as a recognized social group, worthy of protection, when they granted asylum to a woman from Togo. However, there is no overall policy regarding women. Each time a women flees persecution because of her gender, the case that she is eligible must be made. That can be a daunting, lengthy and expensive task.

Human rights activists and international women's rights advocates gained some hope by the advances made under the Clinton administration. In October 2000, President Clinton signed the Violence Against Women Act, which provides stricter penalties for trafficking women, so called “mail order brides.” In addition, the law set aside funds for services for battered immigrant women. During the Clinton administration, immigration laws tilted in favor of battered immigrant wives of abusive American husbands. Battered wives who were not citizens could now leave their husbands, without forfeiting their right to stay in the United States. “If the changes brought by the Violence Against Women Act could be enacted in asylum policy, things would be easier for women refugees,” said Irena Lieberman, an attorney at the Tahirih Justice Center, a women’s rights legal defense organization in Falls Church, Virginia. “We have been waiting for over a year now.”

The INS and women's rights advocates are debating the factors that determine membership in a social group.

Currently, there are six factors used by the INS when considering membership:

The members of the group are closely affiliated with each other
The members are driven by a common motive or interest
A voluntary associational relationship amongst them
The group is a societal faction or recognized segment of the population in the country
Members view themselves as members and/or society distinguishes members of the group for different treatment or status than other in society.

“The problem with those regulations is that many women who live in repressive and patriarchal societies are often marginalized and isolated,” said Orloff from NOW. “They are unlikely to see themselves as members of a larger social group.” Orloff also points out that since domestic violence is viewed as a private matter, many women are not sure that other women are in their same situation. The fear is that INS officials would use the six criteria as a checklist, and if one were missing, the applicant would be denied. Advocates recommend clarifying the process so that it is not necessary to meet all the factors.

While supporters like Orloff and Lieberman argue that women fleeing abuse count as a social group, they also argue that they are eligible for asylum for their political opinions. “Women rejecting the roles their society places open them is an overt political act,” said Lieberman. “The reaction that they face is a clear result of a political action, though the respondent may not view it that way, that’s what it actually is.”

The reluctance of the U.S. government to enshrine gender-based asylum rights is based on archaic views of domestic violence, say advocates. “Domestic violence is not a private matter, it is a social problem. It’s a human rights issue,” said Knight. “To tell these women to ‘just go home’ is just unacceptable. It ignores basic tenets of human rights and refugee law.”

It would seem that with all the attention paid to the abuse of women under the Taliban in Afghanistan, that women’s rights issues would become a more important issue. Not so say advocates. In fact, it has done the reverse. “Now that the Taliban is no longer in power, many asylees from Afghanistan are being denied,” said Lieberman. “Some INS officers think the threat to their safety is gone, even though that is not the case.” In other cases, little is known about the plight of women. Most U.S. asylum cases regarding women’s issues come from Latin and South America. According to Lieberman, in comparison to the Arabic world and places in West Africa, their treatment at home appears better. “It is dangerous to compare one place to another,” said Lieberman. “It is more about the individual experience.”

The advancement of refugee women’s rights is at a standstill, keeping battered women asylum seekers and their defenders holding their breath, hoping for change. “The stories these women tell are heartbreaking,” said Orloff. “Our system is designed to help

and protect, not too make their lives harder. Change is in order.”

The matter of women and asylum has become a political hot potato, argued not in Congress, but in the private advocacy sphere. Opponents of current immigration and asylum laws feel that the regulations are too lax. While many “immigration reform” groups are thinly veiled hate groups, some organizations have gained legitimacy and political influence. The Federation for American Immigration Reform (FAIR) has long advocated immigration reform by cracking down on illegal border crossings, reducing the number of student and work visas and tightening asylum regulations. In a statement released on September 12th, in response to the terrorist attacks, FAIR stated that:

“Political asylum policy must be restored to its original intent, which was a policy that permits individuals who are legally present in the United States when some unforeseen event makes it impossible to return…in recent years, the definition of who is a refugee has been stretched to include people who suffer from harsh family or societal treatment. This has opened our doors to people never contemplated in the definition of refugee.”

Other “reform” groups claim that if domestic violence victims are specified for protection, then the floodgates will open, and thousands of refugees will arrive, clogging the system and draining financial resources. “That is ridiculous,” said Stephen Knight, coordinating attorney for the Center for Gender and Refugee Studies at the University of California, Hastings School of Law in San Francisco. “That has always been said every time asylum law changes and it never happens.” Knight points out that with categories like race and religion, which include millions of the world’s people, refugees seeking asylum remains relatively low. In addition, asylum is incredibly hard to get, so few refugees would attempt the process unless they had a legitimate claim. Even if new categories of eligibility are added, that does not mean if an applicant is a member that thy will granted asylum; they still need to prove they have a well-founded fear of persecution. Between May of 2000 and 2001, the INS processed 42,053 asylum applications; only 13,299 were approved. “Women do make up half the world’s population and many face violence, but so few ever make it to the U.S.,” said Knight. “Why should we reject the few who do make it out of fear that the rest will follow?” Knight compares that attitude to refugees fleeing the Holocaust and to the very event that created an international call for countries to have an asylum process. “It’s like the St. Louis, the ship of Jewish refugees looking to dock in America. They were sent back because the fear was that all Jews in Europe would come next. Most of those people were murdered,” said Knight. “And that is what would happen to many of these women."

Back to 2002 Index