Rape Victim Gets Obama’s Support

Dislocating her jaw, repeated public beatings, rape and an attempt to abort her unborn child. This is a small window into the abuse Rody Alvarado Peña endured at the hands of her husband.

After ten years, and one attempted suicide, she’d had enough and fled Guatemala to San Francisco, where she began her fight for asylum.  On October 29th, with the support of the Obama administration, and after 14 years of battling immigration courts and the Department of Homeland Security, Peña is well on her way.

Although Peña hasn’t yet been granted asylum, the support of the Obama Administration represents a sea of change in federal immigration governance, and a step forward in developing a broader definition of what constitutes a “social group”—one of the five official categories allowed for seeking asylum, immigration lawyers said.   It marks a sharp departure from the posture of the Bush Administration and opens the possibility that other undocumented women who have endured abusive situations will be eligible for asylum.

That departure—the first since 1996—is  represented by three simple words in  the Federal government’s court papers which say Peña is “eligible for asylum.”  In contrast, the Bush administration’s petition advised that, “the BIA [Board of Immigration] should reconsider the decision” to grant Peña asylum.

“The guidance the Obama administration is putting out seems to be toward a definition of social group that will include Rody’s case,” said Peña’s lawyer, Karen Musalo.

Karen Musalo, Peña's lawyer. Photo by Richard A. Boswell.

“It would be highly unprecedented for her to be rejected with that kind of support,” she added. Under the expected ruling, Peña will be classified as part of a larger social group of women living in Guatemala who are victim to spousal abuse that is not prosecuted under Guatemalan law.

Of the five conditions that govern asylum eligibility including, fear of prosecution for race, religion, nationality, political opinion and membership to a particular social group, the definition of “social group,” is one Peña’s case has been able to expand as a possible condition meriting asylum.

“This is not the first ruling of its kind,” said Musalo, but they’re making headway, “and it may make it easier for women, like Rudy to seek asylum. “Especially if they are from Guatemala,” she added.

“The definition of social group is something that is still evolving,” said Deputy Press Secretary of Homeland Security, Matt Chandler, unable to comment on specific cases.

This evolution has given women around the globe, subject to severe spousal abuse, hope that the new definition might include their predicament.

Now isn’t the first time that the federal government has made a move towards clarifying the definition of “social group.” In the 1994 case of Toboso-Alfonso,  Attorney General Janet Reno granted asylum to a homosexual man fleeing persecution in Cuba. In his case,  persecution for sexual orientation became a social group.

Then in 1996, the category of social group was expanded to gender issues in the case of Fauziya Kassindja, a Togolese woman granted asylum for fear of genital cutting in her home country. Under that ruling Kassindja was offered asylum based on the grounds that she was part of a social group of women that opposes the traditional genital mutilation supported by her tribe and the government of Togo.

It was the first ruling to offer asylum on the grounds of such gender discrimination, and since has opened the doors of many countries around the world to women fleeing gender-based crimes. Among them, Spain, Germany, New Zealand, Costa Rica and Canada have similar laws.

Although the Kassindja case made headlines in 1996, and prompted legislation around the globe, the United States continues to work on clarifying the definition of a social group. “There is no timeline, as of now,” said Chandler, speaking to the guidelines, still being developed.

Musalo, now director of Center for Gender and Refugee Studies at San Francisco’s Hastings College of Law, was the head lawyer in Kassindja’s case.

Now, she heads Peña’s case.

In a recent phone interview, she voiced her frustrations and hopes, “There is a difference in DHS [the Department of Homeland Security] taking a position, and having nationally binding guidelines.”

“What we are working towards is regulation of legislation issued at the agency level,” she added.

Concrete legislation may be years away, but Musalo considers Obama’s support a victory for Peña’s case.

While the Peña case offers a silver lining to some, many in support of more stringent immigration laws fear the ruling will open the floodgates on immigration, overwhelming the United States with victims of spousal abuse.

“That’s just not the case,” said Musalo pointing to evidence in countries already open to this class of asylum seeker, “Canada opened its borders in 1993, and there has been no skyrocketing of numbers,” she said, adding that, similarly, the Kassinjda case had no such effect.

Musalo declined to say how many cases similar to Peñas that she’s been following—saying she doesn’t want to feed into the floodgate theory—“but there are women here,  certainly living in the Mission District, who face similar issues.”

In a report released by Hasting’s Center for Gender and Refugee Studies in 2005, titled, “Getting Away with Murder,” Musalo cited that since 2001 more than 1,500 women have been murdered in Guatemala.  Some 500 of these women, the report found, are “believed to be a consequence of domestic violence.”

“These women have few resources, and in many cases are the primary caretaker for their families,” making it near impossible to leave, said Musalo. When Peña fled Guatemala, she left behind her two children with their grandparents—children who no longer know her as their mother.

Although Peña found help, Musalo warns there are many predatory entities that feed on the marginalized population of asylum seekers in the United States. The best advice for those who think they may be eligible for asylum, she said, is to talk to a reputable non-profit, and to stay away from pay-per-services that offer little or no insight into their work, and promise a successful outcome.