U.S. Board of Immigration Appeals Recognizes Domestic Violence as a Basis for Asylum in Landmark Decision

Photo credit Alejandro Mejía Greene

Last month, the Board of Immigration Appeals (BIA) issued a landmark precedent decision in a Guatemalan woman’s asylum case.  In Matter of A-R-C-G- et al., the BIA held for the first time that survivors of domestic violence may qualify for asylum in the United States based on the harm they have suffered.  While the decision offers new hope to women fleeing severe domestic abuse in their home countries, it was not one that the BIA came to quickly or easily.

In order to obtain asylum in the U.S., an individual must demonstrate that he or she has suffered persecution in the past or has a well-founded fear of persecution in the future, on account of his or her race, religion, nationality, political opinion, or membership in a particular social group.  For applicants claiming asylum based on their membership in a particular social group, the BIA has held that 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.”

The first prominent case concerning a domestic violence-related asylum claim involved a tortured procedural history lasting fourteen years.  Rody Alvarado is a woman from Guatemala who fled years of horrific abuse at the hands of her husband.  After the Guatemalan courts and police refused to protect her, she was beaten unconscious when she tried to escape from her husband, and she ultimately fled to the U.S.   Ms. Alvarado applied for asylum, claiming that she had been persecuted on account of her membership in the particular social group of “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination.”  In 1999, the BIA decided her case in Matter of R-A-, finding that she should not be granted asylum because she had not demonstrated that this was a cognizable social group, and that she had not established that her husband had harmed her because of her membership in that group.  In other words, she had failed to establish the required nexus between the harm she had suffered and the particular social group of which she claimed to be a member.  The BIA decided that Ms. Alvarado’s husband had abused her simply because he was a violent person, not because of her membership in any particular social group.

The case was referred to the Attorney General for review, and three different Attorneys General all weighed in on the case and remanded it to the Immigration Judge multiple times before a final decision was entered.  Eventually, the Department of Homeland Security (DHS) stipulated that Ms. Alvarado was eligible for asylum, and her application was granted in December 2009.

In the interim, a Mexican woman known as L-R- applied for asylum after suffering two decades of rape, physical abuse, captivity, and death threats at the hands of a man she first met when he was her school sports coach.  Ms. L-R- applied for asylum on the basis of her membership in the particular social group of “Mexican women in an abusive domestic relationship who are unable to leave.”  But the Immigration Judge in her case denied her application, holding that she had been subjected to violence simply because her abuser was a violent man, rather than on account of her gender or status in the relationship.  Ms. L-R- appealed to the BIA, and initially DHS argued that the Immigration Judge’s ruling was correct.  However, in April 2009, under the new Obama administration, DHS filed a new supplemental brief outlining its official position regarding when and how asylum claims based on domestic violence might qualify for asylum.  Eventually, DHS agreed that Ms. L-R- was eligible for asylum as well, resulting in her grant of asylum in April 2010.

Since these two important cases were resolved, advocates for other survivors of domestic violence have attempted to use the arguments made in DHS’s 2009 brief in support of their own clients’ asylum claims.  Some have been successful, while other cases have been rejected.  But because both earlier cases were ultimately decided based on the agreement of both parties, the BIA had never issued a precedential decision binding on all Immigration Judges around the country on this important issue.

That changed on August 26, 2014, when the BIA decided Matter of A-R-C-G-.  This case involved another woman from Guatemala and her three minor children, all of whom were fleeing years of abuse by Ms. C-G-‘s husband.  In its decision, the BIA described the “repugnant abuse” to which Ms. C-G- had been subjected, including weekly beatings, rapes, a broken nose, and an attack with paint thinner that left her burned and scarred.  Although she contacted the police several times over the years, she “was told that they would not interfere in a marital relationship.”  Her husband was never arrested, and instead retaliated with worse abuse and death threats after she reported him.  She tried to escape multiple times, but her husband always found her and increased his brutality afterwards.  Eventually, Ms. C-G- and her children fled the country, arriving in the U.S. in December 2005.

Ms. C-G- claimed asylum based on her membership in the particular social group of “married women in Guatemala who are unable to leave their relationship.”  The Immigration Judge in her case rejected her claim, again holding that the abuse “was the result of ‘criminal acts, not persecution,’ which were perpetrated ‘arbitrarily’ and ‘without reason.’”  Ms. C-G- appealed, and the BIA requested supplemental briefing from both parties, as well as from several amici curiae, or “friends of the court;” organizations such as the American Immigration Lawyers Association, UC Hastings’ Center for Gender and Refugee Studies, the National Immigrant Justice Center, and the United Nations High Commissioner for Refugees submitted briefs in support of Ms. C-G-‘s claim.

Ultimately, the BIA held that Ms. C-G-‘s purported social group of “married women in Guatemala who are unable to leave their relationship” can indeed constitute a valid basis for asylum, depending on the facts and evidence in the particular case.  Referring to the three-part test for asylum claims based on membership in a particular social group, noted above, the BIA found that the asserted group in this case “is composed of members who share the common immutable characteristic of gender,” and that, “[m]oreover, marital status can be an immutable characteristic where the individual is unable to leave the relationship.”  It also found that the group in this case was defined with sufficient particularity, as the terms “married,” “women,” and “unable to leave the relationship” all “have commonly accepted definitions within Guatemalan society.”  And it found that the group was socially distinct within Guatemalan society, as evidence had been presented regarding Guatemala’s culture of “machismo and family violence,” as well as Guatemalan police officers’ frequent failure to protect domestic violence survivors.  The BIA remanded the case back to the Immigration Judge for further proceedings and a new decision after both parties have the chance to present new evidence.

As the first precedential decision binding on lower courts deciding future domestic violence-based asylum claims, Matter of A-R-C-G- is undoubtedly of great consequence.  It will influence both advocates’ arguments on behalf of individuals fleeing domestic violence as well as the decisions of Immigration Judges around the country.  Since the decision is so new, it remains to be seen just how it will play out in cases involving particular social groups different from the exact group defined in this case, and conservative politicians are already decrying the decision.  But as the BIA was quick to emphasize, the outcome of a particular case is ultimately highly dependent on the facts and evidence involved in that individual case.

This decision is especially important in light of the ongoing humanitarian crisis at the southern U.S. border.  Unprecedented numbers of Central American women and children have sought refuge in the U.S. over the past several months.  Women and families, many of whom are fleeing horrific domestic violence, are being held in questionable family detention centers in New Mexico and Texas, often in inhumane conditions and with limited access to legal counsel.  Pro bono attorneys trying to work with the detained women and children have reported appalling denials of due process in the immigration court proceedings being held in Artesia, NM.  However, in the weeks since Matter of A-R-C-G- was decided, three families in Artesia have been granted asylum based on the domestic violence they suffered in their home countries.

The fact that the BIA has at long last formally recognized that domestic violence can form the basis of a successful asylum claim is noteworthy in itself, as it sends the critical message that survivors of such violence deserve protection.  With this decision, the BIA has ended years of legal uncertainty and provided a definitive answer – domestic violence-based asylum claims should not and cannot be categorically denied.

Tags: asylum, BIA, Board of Immigration Appeals, detention, domestic violence, Guatemala, immigration, law, Mexico, United States