Lawyers Manual - Unified Court System

330 Lori Cohen
Rodi Alvarado’s asylum application and issued proposed regulations relevant to
her claim. 100 In 2001, the Attorney General vacated the BIA decision and
ordered it to issue a new one after the regulations were finalized. 101
In 2003, the Attorney General certified Matter of R-A- to himself to decide,
and ordered briefing on Rodi Alvarado’s eligibility for relief. In the absence of
final regulations, the Department of Homeland Security’s brief provides
essential guidance to establishing eligibility for domestic violence-based claims.
The brief essentially adopted many of the points long articulated by domestic
violence advocates, including the formulation of Rodi Alvarado’s membership
in a particular social group. 102 In January 2005, the Attorney General remanded
R-A- to the BIA for reconsideration following the final publication of the
proposed rule. 103 The final rule has not yet been published.
While a final resolution of R-A- has yet to come, the Attorney General’s
order to vacate the BIA decision, the proposed regulations, and, critically, the
government’s brief on Rodi Alvarado’s eligibility, have made a profound impact
on the adjudication of domestic violence-based asylum claims. Women fleeing
domestic violence have prevailed both on their affirmative claims and in
removal proceedings.
Procedural Elements for Asylum Seekers
Asylum claims may be brought either affirmatively or in removal
proceedings, and involve the filing of an asylum application, 104 the asylum
applicant’s personal statement, research on conditions in the applicant’s home
country, and any other supporting documentation, such as witness affidavits,
photographs, news reports, and medical evaluations that corroborate physical
and psychological trauma. Children living in the United States should be
included in the principal application. An affirmative asylum application should
be mailed to the USCIS Service Center for the applicant’s region. 105
The Affirmative Interview
The affirmative asylum process is non-adversarial and conducted by
specially trained interviewers (a female interviewer may be requested) at a
USCIS Asylum Office. 106 While attorneys should attend the asylum interview to
observe, make a closing statement, and point out relevant supporting material,
they are discouraged from otherwise participating in the process. Typically,
applicants return to the Asylum Office two weeks after the interview to
personally receive their decision. An application based solely on a domestic
violence-based social group, however, will be referred to the Asylum Office
Headquarters, delaying a decision, so including other grounds for asylum is