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In late October, the Obama Administration’s Department of Homeland Security (DHS) signaled that the government is open to considering asylum claims from women fleeing severe domestic violence when it recommended that a San Francisco immigration court grant asylum to Rody Alvarado Peña, whose case has been in and out of United States immigration courts for 14 years.

While the action applies only to Alvarado Peña’s case, experts are calling it is a major step toward defining the legal grounds on which battered and sexually abused women from foreign countries can seek protection in the United States. The Family Violence Prevention Fund, Center for Gender and Refugees Studies, and other advocates for victims of violence have long advocated for this recommendation.

An immigration judge must now formally rule on the case, but Alvarado Peña’s lawyer, Karen Musalo, who directs the Center for Gender and Refugee Studies at Hastings College of Law at the University of California, says that since the government itself if in favor of a grant of asylum, it is likely that a judge will approve her claim.

In an interview with the New York Times, Alvarado Peña said she hoped the resolution of her case will mean that other abused women receive quicker, favorable decisions from the immigration courts.

“The Department of Homeland Security should follow up its brief in the Alvarado case by issuing something more lasting and useful: a firm, clear set of regulations spelling out the conditions under which battered women could be granted asylum here,” the New York Times recommended in a November 9 editorial. “Such regulations would give invaluable guidance to asylum officials and immigration judges and prevent the years of delays and uncertainty that so worsened Ms. Alvarado’s ordeal.”

Family Violence Prevention Fund President Esta Soler agreed. “We intend to press vigorously for strong regulations or laws that will ensure that victims of domestic and sexual violence do not spend decades in limbo, fighting deportation in our immigration courts,” she said. “We cannot put the fate of women whose lives are in grave danger at the mercy of whatever Administration holds office.”

Grim History

Rody Alvarado Peña came to the United States from Guatemala in 1995 after more than a decade of vicious abuse at the hands of her husband, a former soldier in the Guatemalan army. Married at age 16, Alvarado Peña suffered rape and beatings from a husband who broke mirrors over her head, caused her to miscarry, and beat her unconscious.

Divorce was impossible without her abusive husband’s consent, and no shelters or other supports were available. So Alvarado Peña fled to the United States.

Although she was granted asylum in 1996, the government appealed the ruling. Nobody ever disputed the horrific facts in her case, but in the years since immigration courts have made conflicting rulings that left her in limbo.

The legal questions surrounding whether abused immigrant women are eligible for asylum focus on whether these women are part of a “particular social group” that has faced persecution – one of the criteria for seeking asylum. At present, United States law requires that any applicant for asylum or refugee status demonstrate a “well-founded fear of persecution” based on race, religion, nationality, political opinion or “membership in a particular social group.” Victims of gender-based violence often are not persecuted for their race, religion, nationality or political opinion, so in order to win asylum they need to be recognized as members of a social group. When the government declines to find them to be social group members, they are denied asylum or left in limbo.

“The administration’s move should serve as an important symbolic victory for the human rights of battered women everywhere, a message that brutality at the hands of a spouse and administered with the acquiescence of the state is never acceptable,” the Washington Post said in a November 10 editorial.

In another favorable action, earlier this year DHS moved to allow some battered women to receive asylum in the United States in a brief in the case of L.R., a Mexican woman who requested asylum because she feared her common-law husband would kill her. That DHS brief argued that abused women who can show that they are treated as subordinates or property by their abusers, in a country where domestic abuse is widely tolerated and no institutions provide protection, should be granted asylum. Read the DHS brief here.