AG Sessions: Domestic Violence Not Eligible for Asylum

U.S. Attorney General Jeff Sessions issued a decision Matter of A-B- on June 11, 2018, making it more difficult if not impossible for domestic violence victims to obtain asylum protection in America.  His decision reasserts the traditional view of what constitutes a particular social group for the purposes of applying for political asylum.

Those seeking asylum in the U.S. may do so if they suffer persecution based on race, religion, nationality, being in a particular social group, or political opinion. What constitutes a "particular social group" (referring to the asylum seeker's claimed persecuted group) has been a subject of controversy. Generally speaking, an applicant arguing that she is persecuted because she belongs to a particular social group must demonstrate that the group can be objectively defined by virtue of some "immutable traits" such as one's race or sexual orientation. Further, the group must be  recognizable in society.

The biggest point of contention in domestic violence cases is the term "particular social group". By traditional interpretations, people in privately violent cases do not qualify as asylum seekers. In 2014, however, a new precedent was set. The case Matter of A-R-C-G- presented a woman who had fled her abusive husband in Guatemala and sought asylum in the U.S. The Board of Immigration Appeals (BIA) ruled that “married women in Guatemala who are unable to leave their relationship” is a valid social group. The Board defined "married" as an immutable characteristic and "married", "women", and "unable to leave the relationship" as distinct statuses in Guatemala. Social distinction in Guatemala was also recognized  through a "culture of machismo and family violence". This was a controversial decision and cases involving domestic violence cases were decided inconsistently. Some cases continued to be denied because the applicant was not deemed part of a particular social group.

Sessions overrules A-R-C-G- in his decision, rejecting the broad interpretation of "particular social group". According to the A.G.'s decision, the social group “married women in Guatemala who are unable to leave their relationship” is not valid by definition of the Immigration and Nationality Act. This group, according to him, cannot be circularly defined by the victims' situation. The group needs to be defined independently of the inflicted harm.  It needs to be an existing, recognized segment of the applicant's society. Also, the husband did not specifically target the applicant because she was a Guatemalan woman unable to leave her relationship. The applicant was denied asylum because she did not establish her membership in a particular social group. Session also believes that there was insufficient evidence to prove that the Guatemalan government was unable or unwilling to stop the domestic abusive acts, another requirement for obtaining asylum.

Sessions applied the same rationale to Matter of A-B-, where the social group claimed was “El Salvadoran women who are unable to leave their domestic relationships where they have children in common”, and remanded the case to the Immigration Court for a new decision.

While the Attorney General's decision is binding on all immigration courts, the BIA, and asylum officers, his word is far from being final on this issue. Asylum law is constantly changing and developing. This issue will likely resurface in a different context soon.

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.