By Erin Sherbert
By Erin Sherbert
By Leif Haven
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By Chris Roberts
By Kate Conger
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By Rachel Swan
She is known in court documents only as "R.A." The initials are meant to protect the identity of a San Francisco woman who immigrated here illegally five years ago to escape domestic violence in Guatemala. R.A. is a short, dark-haired 33-year-old who lives now in the Mission District, and though her identity has been concealed in court, her fight to remain in the United States is anything but anonymous. In fact, it is the subject of a national debate over a complex and controversial question of immigration law: Should the United States grant asylum to foreign women who can't get protection in their own country?
In 1995, R.A. crossed the Texas border without money or immigration papers, carrying only a few articles of clothing. R.A. says she didn't want to leave her home or two children behind; she made the journey out of desperation after a particularly brutal beating by her husband. With the help of an amnesty group, R.A. eventually made her way to San Francisco.
Determined to escape her violent marriage, R.A. filed for political asylum in the United States in 1995. But today her asylum status still hangs in the balance.
A San Francisco immigration judge granted R.A. asylum in 1996, but the national Board of Immigration Appeals reversed the decision in 1999. The board argued that, though it sympathized with R.A., her case does not fit in the framework of refugee law because she wasn't abused for her political opinions or membership in a social group.
The board's decision sets a legal precedent that worries domestic violence organizations and asylum advocates. "The decision effectively increases the hurdles to women seeking asylum and fails to recognize the unique violence women face," says R.A.'s attorney Jane Kroesche.
Fearing the impact of the board decision, UC Hastings' Center for Gender and Refugee Studies has organized a national campaign to help R.A. win asylum. The case has been appealed to a federal court, and supporters have asked for a review of the decision by U.S. Attorney General Janet Reno, who has the power to trump the board's decision.
National domestic violence and human rights organizations have voiced support for R.A., and last month eight members of the U.S. Senate sent a letter to Reno expressing their "increasing concern" over the board's decision.
Reno has given no indication about whether she will review the case; R.A.'s appeal in federal court has been put on hold until Reno issues a statement.
In the United States, asylum is granted to foreigners persecuted in their home country for race, religion, national origin, social group, or political opinion. Gender-related claims have traditionally been filed under the "social group" or "political opinion" categories.
In asking for asylum, R.A. argued that she belonged to a persecuted social group: Guatemalan women who didn't want to live under the domination of their husbands. She also claimed that her verbal protests over her husband's beatings, and her attempts to seek help and flee the marriage, were forms of persecuted political opinion. Because she could not get state protection in Guatemala, attorney Kroesche argues, R.A. embodies the purpose of asylum.
R.A. is certainly not the first domestic violence victim to file for asylum in the United States, and some women have been granted permanent asylum in lower level courts. The R.A. decision, however, sets a legal precedent because it was issued by the Board of Immigration Appeals, which publishes its decisions in law books. Therefore, lower courts that could use their own interpretations of asylum law in the past are now forced to rely on the board's decision when domestic violence victims seek asylum using the "social group" argument.
In its decision, the board said that offering asylum to R.A. would stretch the refugee limits too far, and could open a floodgate for women with false asylum claims to enter the country. Though R.A. has "a genuine and reasonable fear of returning to Guatemala, ... the issue is whether our asylum laws include additional protection for abused women," the decision states. "In our judgment, however, Congress did not intend the "social group' category to be an all-encompassing residual category for persons facing genuine social ills that governments do not remedy."
(A Board of Immigration Appeals spokesperson said the board's perspective could be gleaned from its published decision and declined further comment.)
But University of Southern California law professor Edwin Smith says the R.A. decision is at odds with current legal trends. "In the past five years, there has been a broadening of gender claims," Smith says. "But it is not unusual for the immigrant appeals process to lag behind the cutting edge of the law."
The gory facts of the R.A. case are undisputed, and even the Board of Immigration Appeals stated in its decision that it "struggle(s) to describe how deplorable we find the husband's conduct to have been."
The years of abuse for R.A. began when she married her husband, Francisco Osorio, at age 16. A former soldier for the Guatemalan army, Osorio regularly boasted of the power and authority of the military and would graphically describe to R.A. how the army killed infants and the elderly.