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Women around the world suffer violations of their human rights, many of them related to cultural or societal practices such as female genital cutting or domestic violence. Those who oppose protection for these women in the United States fear that granting asylum will open the floodgates and that the victims of these violations will inundate this nation. Rather than deny protection to women whose lives are in danger, the United States should use its considerable influence to help end the conditions that result in the violations of women’s rights. This “root cause” approach is not only more humane than denying protection, but, over the long run, it is probably more cost-effective than increasing the amount of investment in enforcement strategies to keep out asylum seekers. The case of Rodi Alvarado provides an example of the controversy surrounding this issue and of the value of a root-cause solution. In 1996, an immigration judge in San Francisco granted asylum to Rodi Alvarado, a Guatemalan woman. According to her uncontroverted testimony, which the court ruled as credible in its entirety, she alleges she fled her home country to escape 10 years of brutal battering at the hands of her spouse, Francisco Osorio. During his frequent beatings of her, Osorio, a former soldier in Guatemala’s military during that country’s bloody civil war, bragged that he had killed the elderly and children with impunity. He told his wife he could kill her and no one would care. Unfortunately, his vicious boasts seemed rooted in fact, as Alvarado’s repeated pleas for help to the police and the courts of Guatemala went unheeded. Before abandoning her country — an agonizing choice that required her to leave her two small children behind — Alvarado tried to escape her husband within the borders of Guatemala, but Osorio was always able to track her down. Her attempts to escape so enraged him that, on one of the last occasions that he found where she was hiding, he allegedly beat her unconscious in front of their children. A U.S. immigration judge’s 1996 decision in Matter of R.A. to grant protection to Alvarado relied upon Matter of Kasinga (1996), the landmark decision by the Board of Immigration Appeals that held that a successful claim for political asylum could be based on fear of female genital cutting. What the two cases had in common was they both involved claims for asylum arising out of the infliction of harms that are gender-based and often culturally accepted — namely, female genital cutting in Kasinga and domestic violence in Alvarado’s case. But whereas the U.S. immigration authorities themselves had lauded the decision in Kasinga, they disagreed with its application in the Alvarado case and appealed the immigration judge’s grant of asylum. In 1999 the BIA — the same court that had granted asylum in Kasinga in 1996 — reversed the grant of asylum to Alvarado. But that decision was not to be the last word on the matter. Two successive U.S. attorneys general, Janet Reno and John Ashcroft, personally intervened in the Alvarado case, and in 2000 the Department of Justice issued proposed regulations to address such claims. Although the proposed regulations apply generally to asylum, their preamble states that they were intended to remove some of the “barriers” to claims for asylum based on domestic violence. At this point, though the BIA’s 1999 denial has been vacated, the case has still not been decided. The most recent order in the case, from former Attorney General Ashcroft, is that the BIA must decide the case again once the proposed regulations are issued in final form. But the dispute around this issue has been so strong that the regulations, which were proposed almost six years ago, have never been issued in final form. Meanwhile, the controversy over the appropriateness of extending asylum protection in these cases rages on. A NEXUS REQUIREMENT Those who oppose a grant of asylum often argue that the international and domestic laws that govern refugee status were never intended to protect women fleeing gender-related harms. Under international and U.S. law a refugee is defined as an individual with a well-founded fear of persecution on account of — or linked to — race, religion, nationality, political opinion, or membership in a particular social group. This is commonly known as the “nexus” requirement. Those opposed to asylum in gender cases generally argue that the harms imposed on women do not meet the definition of “persecution” because they arise from cultural norms and are often inflicted by family members, rather than by a government. Opponents also assert that women’s claims fail to meet the nexus requirement because the persecution is often based on gender, and gender is not one of the five specified grounds, such as race or religion. There are solid responses to each of these objections to protection in gender cases. First, it is broadly recognized that the fact that certain harms, such as female genital cutting or honor killings, are condoned by culture does not insulate them from constituting human rights violations. For example, the U.N. Declaration on the Elimination of Violence against Women identifies practices such as spousal battering and female genital cutting as violations. It provides that governments should not “invoke any custom, tradition or religious consideration” to avoid their obligation to bring an end to them. Second, under U.S. refugee law, as well as the law of the majority of refugee-receiving countries, no requirement exists that a government directly be the agent of persecution. Protection extends where the persecution is by nonstate actors (such as family members or the community), as long as the state itself fails to provide protection. And, finally, women can establish nexus because, under most circumstances, they can meet the definition of a “particular social group” as that term is understood in U.S. and international law, which look to whether the trait that defines a social group is “immutable or fundamental.” Because one’s gender is considered immutable or fundamental, an increasing number of courts are finding that women constitute a particular “social group” for purposes of refugee law. FEAR OF FLOODGATES If the opposition to extending protection were based on legal theories and analysis alone, this analytical approach would, theoretically at least, assuage the concerns of the opponents. But, in fact, underlying much of the opposition is the fear of opening the floodgates — the fear that a grant of asylum to women fleeing violations of their human rights will result in a deluge of claims because women’s rights are violated so widely in so many areas of the world. In reality, opposition based on fear of floodgates is misinformed. The experience of other countries, such as Canada, that have long accepted gender claims demonstrates that acceptance of these cases does not result in a skyrocketing number of claims. There are a number of explanations for this. Probably the most notable is that women who would have legitimate claims for asylum often come from countries where they have little or no rights, and this limits their ability to leave their countries in search of protection. In addition, women are frequently the primary caretakers for their children and extended family, which makes the decision to leave particularly wrenching because the dangers inherent in the journey result in the decision to leave other vulnerable family members behind. But even if the extension of protection in these cases did lead to a vast number of applicants, the humane response, as well as the most pragmatic one in the long run, should not be to return victims to situations where their rights will be violated or where they may even meet their death. Instead it is to address the human rights violations that are the root cause behind their pleas for protection. ROOT CAUSES The yet-unresolved case of Rodi Alvarado provides a clear demonstration of the link between human rights violations and flows of refugees. It also shows how the United States can address root causes as a response to refugee flows. The root cause of Alvarado’s plea for asylum is the violence against women that is committed with virtual impunity in Guatemala. The government’s inability to prevent violence against women, or to punish those responsible for it, is illustrated by the growing phenomenon of the murder of women in Guatemala. In that country more than 2,200 women have been killed in the past four years alone. The women come from all sectors of society, and the murders have been dubbed “femicides” because gender is the only common characteristic of the victims and the crimes are frequently carried out with a misogynistic brutality, accompanied by sexual violence and mutilation or dismemberment. (Similar femicides have occurred in Ciudad Juarez, Mexico, where more than 400 women have been murdered over the past 13 years.) The Guatemalan government’s failure to effectively arrest, prosecute, and punish those responsible for femicides has been documented by human rights organizations such as Amnesty International as well as by documentary filmmakers. An example is the film Killer’s Paradise, a BBC production. The Guatemalan government’s failure is beyond dispute. Since the killings started, only 12 convictions have occurred in more than 2,200 cases. Since 1992, the United States has given millions of dollars to Guatemala for the purpose of improving the functioning of its police and prosecutors. More recently, the United States has given money for the specific purpose of improving women’s legal rights. As a major donor, the United States could — and should — require the Guatemalan government to demonstrate accountability and appreciable results against gender violence. To date, it has not done so, and U.S. funding to improve law enforcement and judicial functions in Guatemala has shown very few results in terms of protecting women’s rights. Yakin Erturk, the U.N. special rapporteur on violence against women, has commented on Guatemala’s “inability to provide women with legal, judicial, and institutional protection from violence.” Human rights organizations have described specific measures the Guatemalan government should take to prevent violence against women and to investigate, prosecute, and punish those responsible for it. The U.S. government could base its continuing financial assistance on a showing that the Guatemalan government is undertaking concrete measures to address the problem. This approach is not without precedent. In the past, the United States has based its assistance on a country’s compliance with specific requirements of the International Religious Freedom Act of 1998 (to prevent violations of religious freedom) as well as the Trafficking and Violence Protection Act of 2000. This latter statute allows the U.S. government to withhold specific forms of assistance to countries that fail to meet the minimum standards for the elimination of human trafficking. If the U.S. government were seriously concerned about securing the protection of women’s rights in Guatemala, it could require that nation to provide statistics regarding its progress on eradicating violence against women — before the United States provides more aid. This would show that the issue is important to the United States. It would also, over the long run, more effectively reduce the flow of women refugees, at least when compared with the alternative of adopting harsh refugee standards that refuse to recognize their legitimate claims to protection.
Karen Musalo is a law professor at Hastings College of Law of the University of California and the director of its Center for Gender and Refugee Studies. She represents Rodi Alvarado, whose case remains pending, and represented Fauziya Kasinga in her 1996 claim for asylum.

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