A Tale of Two Women: The Claims for Asylum of Fauziya Kassindja, Who Fled FGC, and Rody Alvarado, a Survivor of Partner (Domestic) Abuse

in Arbel, Efrat, Catherine Dauvergne, and Jenni Millbank, eds. Gender in Refugee Law: From the Margins to the Centre. New York: Routledge, 2014. 73-97.

UC Hastings Research Paper No. 124

26 Pages Posted: 22 Nov 2014

See all articles by Karen Musalo

Karen Musalo

University of California Hastings College of the Law

Date Written: November 19, 2014

Abstract

In 1996, in a widely celebrated precedent decision, the Board of Immigration Appeals (Board or BIA), granted asylum to Fauziya Kassindja, a young woman from Togo who fled to the U.S. to escape the imminent prospect of female genital cutting (FGC). The decision, Matter of Kasinga, was notable for being the first published decision to recognize that an asylum claim could be based on gender-related persecution; it was also notable in applying and interpreting the controversial “social group” ground of the 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. Applying the precedent in Kasinga, an immigration judge granted Rody Alvarado asylum, reasoning that although the form of persecution was different, the rationale was the same – namely that women harmed because of their gender could establish a claim on the basis of the “social group ground” and could meet the refugee definition. The U.S. government appealed the grant of asylum, arguing it was improper, and three years later – in 1999 – the Board of Immigration Appeals reversed the grant of asylum to Rody Alvarado. It would be another ten years until her case was finally resolved, and she was granted asylum.

This paper examines the very different treatment of claims based on FGC, and those based on domestic violence in the United States. It describes the legal terrain and implications underlying both decisions, but also goes beyond the legal analysis to examine how these cases have been misunderstood, and frequently pulled into the orbit of the long-standing debate between universality of human rights and cultural relativism.

Suggested Citation

Musalo, Karen, A Tale of Two Women: The Claims for Asylum of Fauziya Kassindja, Who Fled FGC, and Rody Alvarado, a Survivor of Partner (Domestic) Abuse (November 19, 2014). in Arbel, Efrat, Catherine Dauvergne, and Jenni Millbank, eds. Gender in Refugee Law: From the Margins to the Centre. New York: Routledge, 2014. 73-97.; UC Hastings Research Paper No. 124. Available at SSRN: https://ssrn.com/abstract=2528337

Karen Musalo (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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