The Department of Homeland Security (DHS) has recommended to Attorney General John Ashcroft to support a policy regarding gender asylum.  The DHS supports the asylum claim of Rodi Alvarado, a Guatemalan woman who was abused by her husband for ten years.  After Guatemalan police and courts refused to intervene, Alvarado fled to the US in 1995.  In 1996, an Immigration Judge granted her petition for political asylum. 

To qualify for political asylum, the potential asylee must demonstrate that they have been persecuted in the past or who has a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion.  Alvarado was granted asylum due to her gender, which falls under the category of a social group.

The INS appealed the decision to the Board of Immigration Appeals (BIA), who overturned the judge’s decision in 1999.  Then Attorney General Janet Reno voided the BIA’s decision and the Justice Department proposed that domestic abuse is grounds for political asylum.  However, due to an administration change, the issue was placed in limbo.  Last year, Attorney General Ashcroft looked over the policy and the DHS is expected to finalize rules on gender asylum.

In the brief the DHS filed on February 19, 2004, the DHS requests that the Attorney General (AG) remand the case to the BIA with instructions to summarily grant asylum without opinion.  The DHS further requests that should the AG refuse to remand to the BIA, it asks that the AG wait to render a decision until the final DHS regulation is published, since this will then make Alvarado eligible for asylum.  The brief states that the DHS plans to work with the Department of Justice to finalize the proposed regulations on gender asylum.

In 1995, the US adopted guidelines on gender asylum, joining Canada, as the only two nations to have this policy.  Other countries have since adopted similar policies.

The DHS brief is available here: http://www.uchastings.edu/cgrs/documents/legal/dhs_brief_ra.pdf