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.
Early in their marriage he began beating her viciously. Court documents show that in sprees of violence Osorio dislocated R.A.'s jaw, tried to cut off her hands with a machete, and kicked her in the spine while she was pregnant to force a miscarriage. He also dragged her by her hair and used her head to break windows. Some beatings occurred in public.
When R.A. objected to the abuse, he told her, "You don't order me." When she questioned Osorio's right to beat her, he yelled at her for her impudence, and the abuse worsened.
Osorio would also sexually abuse R.A. daily, forcing himself on her by holding her by her hair so she could not escape. When R.A. protested the rapes, he would tell her, "I can do it anytime I want. You're my woman and I can do whatever I want."
R.A. has documented that she was unable to find help through the Guatemalan police and courts. When she went to the police, they either did not respond to her calls or told her they would not get involved. When they issued citations to Osorio, he would ignore them, and the police never questioned or arrested him. When R.A. went to the courts for help, the judge never issued a ruling, stating that he would not get involved with domestic issues.
R.A. says that her husband's ties to the military made it easier for Osorio to evade punishment and to find her whenever she tried to leave him. But in May 1995, after a particularly vicious beating, R.A. decided she needed to leave her husband to save her life, and the only way to escape was to flee the country and leave her two children behind.
She says that when she left, she had no idea where to go because there are no domestic violence shelters in Guatemala. But when she got on the bus to leave her small town, she came across an amnesty group who wanted to help her build a new life in the United States.
She arrived in San Francisco a few days later.
At the heart of the debate of R.A.'s case are varying perceptions of domestic violence, and the circumstances under which the U.S. government can interfere in international issues.
R.A. supporters, including five dissenting board judges, argue that domestic violence is an example of how persecution of women occurs differently than it does for men, which should be taken into consideration in asylum cases.
"The paradigm of refugee law is about the concerns for men," asserts UC Berkeley law professor Patty Blum. "They are about the public sphere activities that men participate in, the political organizations they participate in, the speeches they make. But women are impacted in the society in this more private sphere. They may be prevented from attending school, or they're impacted because they're beaten by their spouse. There are a variety of ways so-called societal oppression has not been acknowledged within refugee law. But that has really been changing in the last five years. There have been other decisions that recognize that private oppression is a legitimate basis for obtaining status as a refugee."
R.A. supporters argue that in recent years the U.S. government has increasingly recognized the abuses particular to women. In 1995, the Department of Justice issued guidelines for immigration officers for dealing with asylum cases involving domestic violence and rape.
The Board of Immigration Appeals, however, does not interpret violence that happens in the home as being within the jurisdiction of American asylum law. Specifically, the board questions the legitimacy of R.A.'s claimed social group, calling it abstract and an unrecognizable group in Guatemala. The board also argues that there is no evidence that Osorio beat R.A. because of membership in that social group.
The board asserts that there was no evidence that R.A. was offering a political opinion when she protested the beatings, "unless one assumes that the common human desire not to be harmed ... is in itself a "political opinion.'"
"[The board] is saying that he beat her up just because he's mean, and we don't offer redress on people for just being people," attorney Kroesche says. "They're putting [domestic violence] behind closed doors, and they're not recognizing the social problem that domestic violence is."
Despite the board's decision on R.A.'s case, victims of domestic violence and other forms of gender persecution can still potentially gain asylum. A landmark 1996 Board of Immigration Appeals decision allows gender to be recognized as a legitimate social group, as long as it is combined with other factors, such as religion or political opinion.
But asylum advocates point to several cases in which the R.A. ruling has prevented abused women from gaining asylum, such as a woman from Congo whose husband beat and raped her regularly. Similar to R.A.'s experience, the woman from Congo also futilely sought police help, and had a husband with connections to the military and the state. She has appealed the asylum denial, which is still pending.
Perhaps most troubling to immigration attorneys, the R.A. decision sets legal precedents making it harder for their clients to claim they are a part of a persecuted social group. Because of the R.A. decision, asylum attorneys must now show that the social group is easily recognizable and that the abuse their client faces is not desirable in that country. R.A.'s claim failed because domestic violence victims are not organized and spousal abuse is not encouraged by the Guatemalan government.
"Everyone agrees that [domestic violence] is persecution," says Karen Musalo, director of UC Hastings' Center for Gender and Refugee Studies. "The board is saying that [the circumstances] are a shame, but they are bound by the statutes of the law. We, the people that disagree, say that you can interpret the statutes differently. But the effect is that right now, we might not be able to offer protection to women persecuted because of their gender."