Last week, the Board of Immigration Appeals (BIA) issued a landmark decision that recognizes that women who have experienced domestic violence may be deemed a “member of a particular social group” which would help support a potential asylum case. The case, Matter of A-R-C-G-, arrives at a time when many Central American women and children are fleeing violence—often domestic violence—and arriving at the Southwest border.
Asylum is a protection granted to foreign nationals in the United States or at the border who meet the international definition of “refugee.” A refugee is a person who has been persecuted or has a well-founded fear of being persecuted “on account of race, religion, nationality, membership in a particular social group, or political opinion.” For years, the phrase “membership in a particular social group” has been the source of much frustration, as many judges took a restrictive approach as to what constitutes a particular social group. Although many lawyers have successfully argued that gender and gender-related groups are particular social groups, the BIA had not issued a clear precedent on the issue, nor had the immigration agencies provided any other explicit guidance. As a result, there have been inconsistent rulings on domestic violence based asylum claims. A 2013 article published in the Hasting Women’s Law Journal noted that “the absence of binding norms remains a major impediment to fair and consistent outcomes for women who fear return to countries where they confront unimaginable harms, or worse, death.”
The BIA’s recent decision goes a long way to address this lack of guidance. The ruling found that “‘married women in Guatemala who are unable to leave their relationship’ can constitute a…particular social group that forms the basis of a claim for asylum.” However, the BIA also emphasized that whether a social group exists in any given case “will depend on the facts and evidence in each individual case, including documented country conditions.” Further, “[u]nder controlling circuit law, in order for [an applicant] to prevail on an asylum claim based on past persecution, she must demonstrate that the Guatemalan Government was unwilling or unable to control the ‘private’ actor.” In this case, the evidence suggests that police in Guatemala regularly fail to respond to domestic violence, even when called. State inaction amplifies the problem of violence against women within Guatemala. A 2014 Human Rights Watch Report found that “[v]iolence against women and girls is a chronic problem in Guatemala and perpetrators rarely face trial.”
Deborah Anker, clinical professor at Harvard Law School, stated of the ruling, “[w]e have won many cases of women fleeing domestic violence at the immigration court and asylum office and changed the institutional culture at that level, but yesterday’s decision from the BIA finally establishes these principles as formal binding precedent.”
This is good news, especially for an estimated 300 women with domestic violence-based asylum claims whose cases currently are on appeal at the BIA. Likewise, as The New York Times explains, “the ruling could slow the pace of deportations” for the Central American women who entered the country illegally in this summer’s surge at our southwest border. This is crucial given that the government has been fast-tracking the deportations of women and children without ensuring that they have a fair chance to make an asylum claim. Women seeking asylum due to domestic violence still face a hard battle. Courts approve very few asylum cases (only 9,933 in 2013), and the existing case backlog at the BIA (currently around 22,500 cases) means that pending cases may not be resolved for a while. But this ruling goes a long way to recognize the life and death stakes involved in fleeing domestic violence and to ensure protection for those who do so.
Photo by orangesparrow.