chapter  3
25 Pages

A tale of two women: the claims for asylum of Fauziya Kassindja, who fled FGC, and Rody Alvarado, a survivor of partner (domestic) violence

WithKAREN MUSALO

In 1996, in a widely celebrated precedent decision, the Board of Immigration Appeals (Board or BIA), the highest immigration tribunal in the United States, granted asylum to Fauziya Kassindja, a young woman from Togo. Ms Kassindja had fled to the United States to escape the imminent prospect of female genital cutting (FGC) and forced marriage, both common practices within her culture, from which the government would not protect her. The Board decision, Matter of Kasinga,2 was a milestone in the struggle for recognition that women fleeing gender-based harms at the hands of non-state agents could meet the refugee definition. It was notable in recognizing female genital cutting as persecution, and applying and interpreting the controversial ‘particular social group’ ground of the United Nations 1951 Refugee Convention (Refugee Convention). Later that same year, Rody Alvarado, a Guatemalan woman, sought asylum in the United States after suffering more than a decade of brutal and unrelenting violence at the hands of her husband. Just as had been argued in Matter of Kasinga, the harm she fled was culturally accepted, and she could not expect state protection. Applying the precedent in Matter of Kasinga (21 I&N Dec. 357 (BIA 1996)), an immigration judge granted Rody Alvarado asylum, reasoning that although the form of persecution was different, the rationale of the two cases was the same – namely that women harmed because of their gender could establish a claim on the

basis of the ‘particular social group’ ground and could meet the refugee definition. The United States government appealed, and three years later – in 1999 – the Board, in Matter of R-A-, reversed the grant of asylum (22 I&N Dec. 906 (BIA 1999)). It would be another ten years until Rody Alvarado’s case was finally resolved, and she was granted asylum (once again) by an immigration judge. But unlike the decision in Matter of Kasinga, Rody Alvarado’s final grant of asylum was not precedential because decisions by immigration judges do not create binding authority. Furthermore, the grant in Ms Alvarado’s case was by a ‘stipulation’ or agreement between her counsel and the government, so there was not even a written decision explaining the rationale for the favourable outcome. In the absence of clear standards, decision-making in gender cases has been arbitrary and inconsistent, with very different outcomes in cases with similar facts.3