Attorney General Janet Reno faces a decision whether to save the life of Rodi Adali Alvarado Pena. Alvarado came to the United States in 1995. If she is forced to return to her native Guatemala, she faces a husband who has made no secret of his intention to kill her.
For 10 years after her marriage at age 16, Alvarado suffered rapes and beatings from her husband, a career soldier. He attempted to abort their second child by kicking her in the spine until she hemorrhaged. He broke windows and mirrors with her head. Each time she fled, he forced her to return home. Then he beat her in front of the children until she lost consciousness.
Alvarado knew of no shelters for battered women, and the legal system provided no protection. Because her husband was in the military, the police would not arrest him. He ignored the few citations he received and failed to show up for court hearings. When Alvarado went to court to plead for help, the judge told her that domestic violence was a private matter.
In Guatemala, a husband's consent is required to obtain a divorce -- so Alvarado was forced to remain married to her abuser. Finally, she left her two children with relatives and, knowing that they were safe, fled to the United States.
Shortly after Alvarado arrived, the Immigration and Naturalization Service (INS) issued guidelines that recognize gender-based persecution as a basis for asylum. The guidelines are nonbinding, but they note that women are often victims of persecution particular to their gender, including rape and domestic assault. And they contemplate that gender-based abuses can serve as the basis for asylum claims.
But immigration courts have been wildly inconsistent in gender-based cases. In 1996 the Board of Immigration Appeals -- the highest court within the INS -- granted asylum to a Togolese refugee who would have faced genital mutilation if she returned home. The gender guidelines were a consideration but not the basis for the court's decision.
In 1996 a judge granted Alvarado asylum based in part on those guidelines. But the INS appealed the ruling. The case went to the Board of Immigration Appeals. In a 10-5 ruling in June, the board denied Alvarado asylum. The judges did not question that Alvarado has suffered; they deplored her husband's vicious conduct. But they ruled that she should be deported because the persecution she suffered was not based on her race, religion, nationality, political opinion or membership in a social group.
The ruling contradicts the board's ruling in the case of the woman from Togo, where it found that persecution for reasons of gender is social group persecution. It also renders the INS gender guidelines almost meaningless.
If Rodi Adali Alvarado Pena cannot satisfy the criteria for asylum here, chances are that no battered immigrant woman can. Thus, the Board of Immigration Appeals decision sets the dangerous and callous precedent that a foreign woman fleeing domestic violence cannot gain asylum here even if her life will be in jeopardy in her home country and even if local authorities there will not protect her.
This case brings together two charged issues -- domestic violence and immigration. We've made tremendous progress in recent years in recognizing domestic violence as the crime that it is. The board ruling, if it stands, will threaten that progress because it treats domestic violence as a less-serious crime than other types of violence.
Like much immigration policy, this ruling seems to put political calculation ahead of justice. At a time when some politicians fan the flames of anti-immigrant sentiment, courts and public officials are wary of actions that could allow in more immigrants.
Attorney General Janet Reno has a decision to make. She can make the politically safe choice and let the Board of Immigration Appeals ruling stand, or she can overturn the decision and save the life of Rodi Adali Alvarado Pena. By wiping the decision off the books, she would get our nation's asylum laws back on track so that other battered immigrant women do not face deportation.
The writer is founder and executive director of the Family Violence Prevention Fund.