The floodgates are not going to open, but will the U.S. border?

• Author: Grant, Helen P.

1. OVERVIEW--THE BASICS OF ASYLUM LAW II. THE FIRST LIMITING FACTOR--THE DOMESTIC VIOLENCE MUST RISE TO THE LEVEL OF PERSECUTION III. THE SECOND LIMITING FACTOR--PROVING NEXUS IV. THE THIRD LIMITING FACTOR--ESTABLISHING A CONVENTION GROUND V. THE FOURTH LIMITATION--THE FEAR MUST BE "WELL-FOUNDED" VI. THE FIFTH LIMITATION--OUTSIDE HIS OR HER COUNTRY OF NATIONALITY VII. CONCLUSION [S]ex-specific violence [and discrimination] has never been treated with the same seriousness as other human rights abuses.... If a person is murdered because of his or her politics, the world justifiably responds with outrage. But if a person is beaten or allowed to die because she is female, the world dismisses it as "cultural tradition." (1)

   Great strides have been taken in recent years to address this misconception; however, vestige of this erroneous belief persists for female asylum-seekers who are the victims of domestic violence. These women flee and seek refuge in the United States because their own country cannot or will not provide them with protection from spousal abuse. Their countries tolerate, condone, or encourage domestic violence, and, it could well mean death for these women to remain within their countries' borders. Nonetheless, the United States sees its protectionist role as limited--that is, limited to those who can prove that the reason their spouse abused them is because of the wife's race, religion, nationality, or political opinion. The United States has yet to acknowledge that domestic violence can occur simply because a wife is seen as part of an inferior class--that of "women"--a possession not seen as deserving of protection by their own country and also not, it would seem, deserving of asylum.

   The most publicized and renowned case (2) of this kind is that of Rodi Alvarado Pena, a woman who was beaten from the day she married Francisco Osorio, a Guatemalan army officer. She was repeatedly raped; her jaw was dislocated; her husband attempted to cut off her hands with a machete; he kicked her in an attempt to abort their second child; he shoved her head through windows; and he kicked her in the genitalia causing her to bleed for eight days. (3) Although a number of these attacks occurred while the couple was in public, and Ms. Alvarado sought legal intervention, the Guatemalan courts and the police failed to come to her assistance. Her attempts to flee within her own country were also unsuccessful. In 1995, after ten years of this brutal violence, she fled to the United States seeking protection from certain death. (4) In 1996, an immigration judge granted her claim for asylum on the grounds that Guatemala was unwilling to provide her with protection from the persecution she suffered because of her social group--"Guatemalan women involved intimately with Guatemalan male companions, who believe that women are to live under male domination"--and her political opinion--opposition to male domination. (5) The Immigration and Naturalization Service (INS) appealed the immigration judge's decision, and the Board of Immigration Appeals (BIA) reversed Ms. Alvarado's grant of asylum. (6) The BIA rejected the respondent's claim that she was persecuted because of her social group and/or political opinion, instead concluding that the domestic violence was perpetrated because her husband could, and that it was a personal matter. (7) Ms. Alvarado sought review and simultaneously sought certification of the BIA's decision to the Attorney General. Prior to the Attorney General accepting certification, the Department of Justice (DOJ) issued a proposed rule (the Proposed Rule) to deal with the issue of asylum and domestic violence. (8) After publication of the Proposed Rule, then Attorney General Janet Reno accepted certification of the matter, vacating the decision of the BIA and remanding it to the BIA for reconsideration in accordance with the Proposed Rule upon its being issued in final form. (9) With the change of administration, however, Attorney General John Ashcroft directed the BIA to certify the case to him. (10) During Ashcroft's term as Attorney General, he refrained from making a decision on the matter, and the Proposed Rule was not published in final form. By an order dated January 19, 2005, he vacated the matter and remitted it to the BIA. (11) However, the Proposed Rule, which would lead to a grant of asylum to Rodi Alvarado, has not been issued in final form as of the publication of this Article.

   Representatives of Ms. Alvarado are touting the return of her matter to the BIA as a victory. (12) However, the fate of Ms. Alvarado is now once again in the hands of the BIA, and the long awaited immigration regulations--which, in their draft form, indicated support for asylum claims for women fleeing a country that cannot or will not protect them against domestic violence--still remain to be finalized. The appointment of Alberto Gonzales as Attorney General provides no further certainty as to the outcome of Ms. Alvarado's case or the cases of those seeking protection under similar bases. During his confirmation hearings, Attorney General Gonzales refrained from voicing a view on the Alvarado case and, in fact, aroused concern as to whether the Proposed Rule would ever be issued in final form. (13) The fate of Ms. Alvarado and others who are in similar positions is still far from certain.

   What is certain is that the United States' Attorney Generals passed on making an affirmative finding as to whether a woman in these circumstances may ever be granted asylum and avoid being deported. The delay in making a decision on this case, the delay in publishing the Proposed Rule in final form, and the approach of the BIA demonstrate a reluctance to grant asylum to women who are victims of domestic violence and are clearly in need of protection. One of the major concerns behind the approach of the United States is the floodgates argument--the potential risk to the American economic and social well-being if it were to recognize women as a social group and domestic violence as persecution for the purposes of asylum. Statistics presently conclude that one in four women in the United States experience some form of domestic violence. (14) If that is the case in a country whose laws and infrastructures condemn and seek to eradicate domestic violence, what would the statistics be in a country in which very few, if any, controls exist? The number of potential asylum-seekers, those seeking a new life in a country they perceive will protect and provide a future, can only lead those who control immigration to panic. The natural thought is that the borders would open beyond all reason. Couple this belief with the concern of fraudulent claims (how easy it must be to bring a claim of asylum by saying "my husband beats me") and you have the result of closing the borders to those in need of protection.

   The panic, however, is unnecessary. There is absolutely no reason that a grant of asylum, safeguarding Ms. Alvarado from the persecutory acts of her husband, given that her country is unable or unwilling to provide such protection, will open the floodgates to these types of claims. Panic has blinded the administrators, the courts, and the government to limitations that were built into the 1951 Convention on the Status of Refugees (the 1951 Convention), (15) the United Nations Protocol Relating to the Status of Refugees (the 1967 Protocol), (16) and the domestic asylum laws, (17) precluding this type of situation from arising.

   The United States' restrictive approach to domestic violence and asylum law is out of step with the other major nations who are signatories to the 1967 Protocol and/or 1951 Convention. Countries such as Australia, Canada, New Zealand, and the United Kingdom have recognized that women within a given society can and do constitute cognizable social groups, and, as such, can be and are persecuted because of their status as women within that particular grouping. (18) The United Nations High Commissioner for Refugees' (UNHCR) approach clearly conforms to the approaches of these nations rather than the United States' approach. (19)

   It is the aim of this Article to prove that, by adopting the approach advocated by the UNHCR and the countries mentioned, the United States' borders will not be flooded by female asylum-seekers. The safeguards that the United Nations built into the 1951 Convention and the 1967 Protocol still can and do provide the required balance and protection for signatory countries, even in these modern day situations. This Article analyzes the threshold requirements imposed by the 1951 Convention and U.S. law for a valid grant of asylum. There are five key preconditions, or limitations, which an asylum-seeker must satisfy. Each precondition is discussed in this Article, including the effect of these threshold requirements on those who seek asylum as victims of domestic violence. In examining the threshold requirements of "Nexus" and "Convention grounds," this Article compares and analyzes differing approaches taken in other major signatory countries to support the theory that, not only is the United States out of conformity with these other major signatory countries, but the fear of open borders to which the United States clings is without a strong foundation.

1. OVERVIEW--THE BASICS OF ASYLUM LAW

   The origins of modern day asylum law in this country and throughout the world are found in the 1951 Convention (20) and the 1967 Protocol. (21) In 1951, still dealing with the after effects of World War II, the United Nations convened a Conference of Plenipotentiaries to draft a convention that would assist in dealing with the ongoing issue of refugees and displaced persons. The 1951 Convention did so by providing a definition of who qualified as a refugee under international law, what a state party's obligations were to refugees, and what the obligations of those granted refugee status were to the granting...