A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, December 3, 2014

Domestic Violence Can Be Basis For Politcal Asylum

The Board of Immigration Appeals (BIA), the highest administrative immigration court in the United States, published a landmark decision on August 26, 2014.  The BIA found that women fleeing domestic violence can be members of a particular social group, one of the grounds for political asylum, and remanded a case involving a Guatemalan woman to the immigration court for a new decision. Matter of A-R-C-G-.  This ruling has the potential to affect immigrant women survivors of domestic violence from other countries too. The Board’s decision signals a move away from restrictive interpretations of the law that have made it difficult for domestic violence survivors to receive protection in the United States.

The case involves a mother of three, Ms. C-G-, who suffered what the decision deems “repugnant abuse” at the hands of her husband, including beatings, rapes, an assault that broke her nose, and an attack with paint thinner that left her with burn scars. Her efforts to get police protection were in vain, as they refused to interfere, and her husband threatened to kill her if she contacted them further. Her husband thwarted her repeated efforts to leave and stay with relatives; he would find her and threaten her if she did not return.

Before this pivotal decision, immigration judges routinely denied asylum to domestic violence victims because U.S. asylum law does not specifically protect victims of domestic violence. Historically, these types of claims would be denied on the basis that domestic violent acts were merely random criminal acts and not on account of the victim's gender. The U.S. asylum law only shields people who are persecuted because of their race, religion, nationality, political opinion, or membership of a particular social group.

To qualify to be a "particular social group" for asylum, the group must be (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question. See, e.g., Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014).  In Matter of A-R-C-G-, the Board recognizes that the victims of demestic violence do share immutable characteristics including their gender and marital status.  Further, the definition of the group is also defined unambiguously with particularity.  Finally, the Board also found that the social is socially distinct.  Social distinction is determined by the perception of the society in question, rather than by the perception of the persecutor.   There is ample evidence that Guatemala has a culture of  mascular family violence.  Consequently, the Board recognized married women in Guatemala who are victims of domestic violence and who are unable to leave their relationship as a unique social group—giving the Guatemalan woman standing to make an asylum claim.

The BIA specifically limits the scope of the ruling to "married women in Guatemala who are unable to leave their relationship."  Therefore, the ruling technically affects only Guatemalan women. However, the reasoning of the decision can be applied to asylum claims from other countries if the applicant can meet the requirements of the law. However, if a victim comes from a country where domestic violence is not as prevalent as in Guatemala, it may not be easy to establish a similar asylum claim. 

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