The Long and Winding Road of R-A-

Some of you may remember the decision of the Board of Immigration Appeals in Matter of R-A-, Int. Dec. 3403 (BIA), which denied asylum to a woman who fled Guatemala after her husband had brutalized her for 10 years and she was unable to obtain help or protection from Guatemalan police or courts. In the latest development on this case, the Attorney General certified Matter of R-A- (the case of Rodi Alvarado) to himself, and issued a brief decision remanding the decision to the BIA.

Attorney General Reno had certified the case to herself in January of 2001, vacated the BIA’s denial of relief, and ordered the BIA to redecide the case when proposed regulations issued by her Department of Justice in December 2000 were final. Attorney General Ashcroft again certified Matter of R-A- to himself in 2004 and allowed briefing. The DHS filed a brief arguing that Rodi Alvarado met the refugee definition. Attorney General Ashcroft decided not to decide the case, and returned it to the BIA, with the same order as Janet Reno had issued — namely that the BIA decide the case once the proposed regulations were issued as final. Those proposed regulations — which have still not been issued as final — were seen as largely favorable to claims like Rodi Alvarado’s.

Attorney General Mukasey’s latest ruling orders the BIA to decide Ms. Alvarado’s case on the basis of existing regulations and precedent, and removes the requirement that the BIA await the issuance of the proposed regulations as final. The proposed regulations can be seen as favorable to social group gender claims — especially those involving domestic violence.

UPDATE:  Here is UC Hastings Center for Gender & Refugee Studies’ expression of concern with the AG’s latest move.

KJ