Guest Blogger: Kim Thuy Seelinger

It's IntLawGrrls' great pleasure to welcome Kim Thuy Seelinger (left) as today's guest blogger.
Kim directs the Sexual Violence & Accountability Project at the Human Rights Center at the University of California, Berkeley, School of Law. The Project pursues interdisciplinary strategies to address impunity for sexual violence.
Prior to joining the Human Rights Center, Kim was a staff attorney and clinical instructor at the Center for Gender and Refugee Studies at the University of California Hastings College of the Law. There she co-taught the Refugee and Human Rights Clinic with our Hastings colleague Karen Musalo (prior IntLawGrrls posts). Kim also represented asylum seekers who were fleeing gender-based violence. She's also served as a Yale-China Association Legal Education Fellow in southwest China and as immigration staff attorney with Lutheran Family & Community Services in New York City. She earned her J.D. from New York University School of Law, and serves on the Board of Directors of the Southeast Asia Resource Action Center.
Kim's scholarship focuses on issues of gender-based violence, persecution based on sexual orientation, and developments in asylum jurisprudence. Most recently, this year she published "Violence Against Women and HIV Control in Uganda: A Paradox of Protection? ," in the Hastings International and Comparative Law Review. Her sample-based analysis of asylum claims involving forced marriage is forthcoming. Ki'ms current interests include the relationship of legal and medical sectors in the prosecution of sexual violence, as well as the intersection of women's rights and health status in general. In her guest post below, Kim discusses a range of efforts to address sexual violence in Kenya.
She writes the following dedication:

Kim dreams her international foremother to have been Trưng Trắc, a Vietnamese village woman born in the 1st century. Under the strain of Chinese Han control over North Vietnam, Trưng Trắc and her younger sister (atop elephants), led a predominantly female legion to temporarily expel Han dynasty forces from the northern prefectures.

Today Trưng (image credit) joins IntLawGrrls' other foremothers in the list just below the "visiting from..." map at right.

Heartfelt welcome!

Reviving the "Particular Social Group"

Two recent decisions have breathed new life into the particular social group ground for asylum, expanding the doctrine to cover claims that had previously appeared all but dead. Last week, an immigration judge granted asylum to Rodi Alvarado, (pictured below right) a Guatemalan woman whose domestic violence claim has been the centerpiece of a fourteen-year struggle over whether such cases should be protected by asylum law. On Tuesday, in the Benitez Ramos case, Judge Posner of the Seventh Circuit Court of Appeals eviscerated the Board of Immigration Appeals on two crucial points of law: first, that former gang members may constitute a particular social group, and second, that the "social visibility" requirement is not only incoherently applied by the BIA but is irrelevant in determining the existence of a particular social group.
The immigration judge's decision in the Rodi Alvarado case, about which we've posted here and here, marks the end of a very long battle by a woman and her lawyer, Karen Musalo, for the right to live in a society that protects women against domestic violence. This has been an unmistakably feminist struggle to regulate the "private sphere" internationally. If asylum law is political expression, the decision to include domestic violence claims within the particular social group category says loud and clear that the right to be free of physical violence does not end at the door of one's home, and that societies that fail to protect women from such violence are not only sexist but are enabling serious human rights abuses.
The Benitez Ramos case is similarly breathtaking in its impact. Asylum has been granted rarely to those fleeing persecution by gangs (even if they were never gang members), and almost never to former gang members. Posner rips apart the faulty legal reasoning that has created this situation, noting that former gang membership is an immutable characteristic and thus meets the definition of particular social group. He adds that former gang members may be excluded or barred from asylum or withholding of removal for violent activities related to their gang membership -- but that must be determined on a case-by-case basis, and their eligibility for asylum should be determined separately. Posner also destroys the BIA's nonsensical "social visibility" test for particular social group claims, noting:

“Visibility” in the literal sense in which the Board has sometimes used the term might be relevant to the likelihood of persecution, but it is irrelevant to whether if there is persecution it will be on the ground of group membership. Often it is unclear whether the Board is using the term “social visibility” in the literal sense or in the “external criterion” sense, or even whether it understands the difference.

Whether or not Benitez Ramos ultimately wins his case, this clearheaded approach will hopefully be adopted by other federal courts of appeals and even -- who knows! -- the Board of Immigration Appeals. Stranger things have happened.
It's important to note that these are both cases from Central America; the geopolitics of asylum law has traditionally frowned upon our neighbors to the south, and has given rise to convoluted law and unlawful policy decisions. Allowing claims by victims of domestic violence and former gang members (and presumably to all those fleeing gangs) could give rise to a "fear of the floodgates" and consequent backlash. It is still the right thing, legally and morally, for the Obama Administration to issue long-awaited guidelines for asylum claims based on domestic violence and to follow Posner's lead in expanding the availability of asylum for former gang members and those fleeing gangs.

Door finally open to gender-based asylum claims?

After 14 years of limbo, Rodi Alvarado may receive a grant of asylum.
As IntLawGrrl Amy Senier then posted, this summer the administration announced its intention to adopt regulations that have been pending since Matter of R-A- was first litigated in the mid-1990s.
This week, in a one-paragraph brief issued from the office of Chief Counsel Ron LeFevre, the Department of Homeland Security announced that Alvarado “is eligible for asylum and merits a grant of asylum as a matter of discretion.” This succinct brief not only paves the way for an Immigration Judge to grant her asylum, but appears also to be following through on the promise to adopt and implement regulations creating broader possibilities for gender-based asylum brought under the claim of "membership in a particular social group."
Alvarado (above left) fled horrific domestic violence at the hands of her husband, including his attempts to induce an abortion by repeatedly kicking her in the abdomen, as well as dragging her down the street by her hair and using her head to break mirrors and windows. Her attorney throughout these 14 years, Karen Musalo (right), Clinical Professor of Law and Director, Center for Gender and Refugee Studies, University of California, Hastings College of the Law, should be congratulated for tirelessly pursuing the government's 14 year old promise to revise the regulations.
Let us now see whether the administration follows through in the face of inevitable criticism that the decision opens the floodgates to hoards of victims of domestic violence who go unprotected in their own countries.

Obama Administration sets guidelines for asylum for survivors of domestic violence

An article in the New York Times this week hinted at a great victory for battered women asylees and their advocates in the United States:

The Department of Homeland Security recently released a brief, submitted earlier this year, through which the Obama Administration voiced support for the proposition that asylum applicants fleeing domestic violence may be eligible to resettle in the United States.

For immigrant rights advocates -- among them our colleague, Professor Karen Musalo (below right), Director of the Center for Gender and Refugee Studies and the University of California Hastings College of the Law -- the statement in the DHS brief marked a turning point in the 14-year struggle to achieve clear guidelines for battered women seeking asylum in the United States.

The fight began in 1995 when Rodi Alvarado (left), a Guatemalan woman who had suffered years of horrific abuse at the hands of her husband in their home country, applied for asylum after fleeing to the United States. The immigration judge who heard Alvarado's testimony found her story of abuse credible and granted her asylum. The Immigration and Naturalization Service (now known as Citizenship and Immigration Services) appealed the decision, In the Matter of R.A., to the Board of Immigration Appeals. The Board--though finding Alvarado's testimony regarding her history of abuse credible -- reversed the judge's grant of asylum on the ground that she was not eligible for asylum. Rather than proceeding to the U.S. Court of Appeals for the Ninth Circuit for judicial review, the Immigration and Naturalization Service re-examined the case and disagreed with the Board.

In a 2000 response to this INS action, the Department of Justice published a proposed rule that set forth domestic violence survivors' eligibility for asylum. One year later, Attorney General Janet Reno vacated the Board's decision, instructing it to reconsider the case after the new rule was promulgated. But the rule never was finalized.

In 2003, Attorney General John Ashcroft certified Matter of R.A. to himself and ordered supplemental briefing on Alvarado's eligibility. Two years later, the litigation remained in administrative limbo, as Ashcroft remanded Alvarado's case to the Board, again ordering decision upon publication of a final rule.

In 2008 there still was no final rule governing domestic violence survivors' eligibility for asylum. At that point yet another Attorney General, Michael B. Mukasey, ordered the Board to reconsider Matter of R.A. in light the nine intervening years of relevant case law.

The protracted journey of this case underscores the confusion within the executive and judicial branches regarding the interpretation of U.S. asylum law applicable to domestic violence survivors. Under Section 101(a)(42)(A) of the Immigration and Nationality Act, an applicant is eligible for asylum if she can demonstrate a

well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Applicants must also show both that their home country government is unable or unwilling to protect them and that internal relocation is not possible to avoid future persecution. The contentious issue in Matter of R.A. and similar cases concerns whether an applicant who has suffered domestic violence can demonstrate that she belongs in the "social group" category of asylees.

Alvarado's lawyers long have argued that Alvarado was persecuted by her husband because she belongs to a social group defined by her gender, marital status, and nationality (e.g. married women in Guatemala.) They have also argued that her husband persecuted her on the basis of her political opinion that women are not subordinate to men.

And that is where the DHS brief described above -- filed before the Board of Immigration Appeals on April 13, 2009, in an analogous case (also litigated by Musalo and her colleagues) -- comes in. The brief stated:

[I]t is possible that ... applicants who have experienced domestic violence could qualify for asylum ... based on alternative particular social group foundations.

Although it did not lay out a definitive test governing the grant of asylum in domestic violence cases,the brief did set forth some criteria that such applicants should satisfy. These include:

► Past abuse rising to the level of persecution;

► Well-founded fear of future persecution;

► Impossibility of avoiding future persecution by relocation within the applicant's home country; and

► Unwillingness or inability by the state to protect the applicant.

Time will tell how asylum officers and immigration judges will apply the criteria. Even so, the decision is being hailed as a positive step and welcome reversal of the Bush administration's position that battered women did not qualify for asylum.