Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When Karen Musalo began teaching refugee law and policy in 1989, she didn’t have much to go on. There wasn’t even a case book for her specialty, so years later she had to write her own. After cobbling that tome together, Musalo began to build the Center for Gender and Refugee Studies at the University of California’s Hastings College of the Law, a first-of-its-kind project focusing on an area of law that has troubled immigration judges: the nexus of asylum law and women’s rights. Now all the work on behalf of those persecuted for their gender — specifically, victims of domestic violence — may be coming to a head. Musalo has a client, Rodi Alvarado Pena, whose case has become intertwined with long-delayed immigration regulations that were first due to be released under ex-Attorney General Janet Reno. Those rules would have provided asylum to women who suffer domestic abuse in countries that turn a blind eye. After years of delay, many who follow this area of the law expect the regulations to be issued shortly. Though she is hoping that Attorney General John Ashcroft sides with her client, Musalo fears the worst. For anyone who hears her plea, it is hard to deny that Alvarado deserves a safe haven. When she applied for asylum, she testified to the following: Her Guatemalan husband pushed her head through a mirror, kicked her in the spine, whipped her with an electrical cord and threatened her with a machete. She was beaten before and during rapes that occurred almost daily. She was pistol-whipped and dragged through the streets of her hometown. When she asked her husband why he was doing this to her, she was told that as a wife, she belonged to him, and he could do with her as he pleased. No amount of pleading stopped him. When she went to stay with relatives, he came after her. Efforts to involve the authorities proved fruitless. So she left. If Ashcroft, who has taken Alvarado’s case under personal advisement, rules against her, the consequences could be devastating not just for those seeking shelter from abusive husbands, but persecuted women worldwide, Musalo said. “It’s important because it will impact gender asylum cases more broadly than those related to domestic violence,” Musalo said. “It really does set the standard in terms of whether a social group can be defined by gender … and who gets protection.” In addition to legal standards, there is the symbolic power of the case. “Although it’s important for Rodi Alvarado as an individual,” Musalo continued, “the fact of the matter is, what the U.S. does on important human rights issues has impact around the world.” An adverse ruling “could have a fairly corrosive effect on protections worldwide.” THE NEXT BIG THING After founding CGRS in 1999 and installing it in an office at Hastings, Musalo has built it through grants and individual donations. Backers include several foundations tilted toward social justice, including the Ford Foundation. “If we think about what a lot of refugee clients have been through, it’s kind of incomprehensible,” she said. “It’s really a great honor to be doing legal work in that context.” Together with Stephen Knight, Musalo has steered CGRS toward a position of influence by lobbying politicians and pushing gender asylum law in directions courts have been reluctant to go. Musalo also tries to do what any good public interest lawyer would, identifying litigation that will have an impact and winning the cases. Her first big win was getting the Immigration and Naturalization Service to give asylum to Fauziya Kasinga. The Togolese woman fled her country to avoid ritualistic female genital mutilation. It was the first time the INS gave asylum to anyone based on gender-specific persecution where the motive wasn’t transparently political. That 1996 win brought recognition to Musalo and the cause. Shortly after, she was named one of the 45 top public interest lawyers in the country by Recorder and law.com affiliate The American Lawyer magazine. Alvarado’s case, Matter of R-A-, 3403, is the next big thing. The United Nations defines a refugee as someone who has been persecuted or has a well-founded fear of persecution, based upon race, religion, nationality, membership in a particular social group or political opinion. Nowhere does it define classes of refugees by gender. “The challenge to women’s claims has been for judges to see that the claims are on account of one of the five grounds,” Musalo said. For some groups of women — victims of widespread rapes in Bosnia, for example — the crimes against them are part and parcel of political upheaval. Courts have had an easy time granting those victims asylum. But whether crimes based solely on gender, accompanied by political apathy toward those crimes, can itself be the basis of an asylum claim is law that is still evolving. That’s where Musalo comes in. Both the United Nations and several Western governments recognize gender-based asylum claims. The problem for U.S. courts has been finding a way to fit women into the definition of a “particular social group.” In Alvarado’s case, her group was defined as women who refuse to live under the domination of men. An immigration judge sided with her, but the Board of Immigration Appeals reversed. The 10-5 majority was troubled by whether Alvarado’s husband was “persecuting” her as the law understands it or whether he was simply sadistic — victims of “everyday” crimes aren’t usually eligible for asylum. CAUSAL CONNECTION? Though sympathetic to her suffering, the court wrote, “What we find lacking in this respondent’s showing … is any meaningful evidence that her husband’s behavior was influenced at all by his perception of [Alvarado's] opinion.” This sort of causal connection has long been a requirement in asylum law. But in dissent, several BIA judges argued that the requirement should be loosened. They used a hypothetical example: Nazi Germany. One shopkeeper decides he’s going to run a competitor out of town by bombing his shop. The competitor happens to be Jewish. He may not have anything against Jews at all, but he knows he can get away with it. In those cases, the dissenters argued, courts should look at the situation that allowed the persecutor to act with impunity. But the majority declined to go that far in their 1999 decision. Reno then invoked a rarely used privilege of attorneys general and vacated the decision. She directed the INS to issue new regulations regarding gender asylum law and said she would decide Alvarado’s case after the new regulations were implemented. Proposed regulations were issued in December 2000 but they had to go through a public comment period and hadn’t become final when the White House switched hands. For 2 1/2 years, asylum lawyers have awaited Ashcroft’s final rules. The attorney general recently announced that he, like Reno, has taken Alvarado’s case under his wing. But Musalo and others have heard that Ashcroft intends to scale back the regulations significantly. Musalo has marshaled letters from congressmen and senators urging the AG not to do so. “In my mind, that increases the chance that Ashcroft might not do what it was he was planning to do,” said Musalo. One of the reasons for the delay is likely the dissolution of the INS. The Justice Department, which still has jurisdiction over immigration courts, is working with the Department of Homeland Security — which now has jurisdiction over immigration policy — to come up with the new regulations. They are also part of a larger set of regulations, though Justice Department spokesman Jorge Martinez said gender asylum is a difficult area of the law. “Some of these things take a long time, some of them not so long,” Martinez said. “Obviously, these regulations would not be as simple as others.” But because Ashcroft has personally taken Alvarado’s case under advisement, he has broad latitude. “His role is to interpret the definition of refugee” and whether Alvarado’s case applies, Martinez said. If Ashcroft orders her deported, Musalo promises that won’t be the end of it. “Even if Ashcroft decides the Rodi Alvarado case against her, we would go up to the 9th Circuit and appeal that decision,” she said. And she — and her Center for Gender and Refugee Studies — will keep fighting. “My philosophy for lawyering for society is just understanding that law is not in a vacuum, but law is working with people and working with communities,” Musalo said. “There are actually a heck of a lot of people in this country who are deeply concerned about the welfare of women.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.