BIA Recognizes Domestic Vioence as a Basis for Asylum

After more than fifteen years of consideration, the Board of Immigration Appeals (BIA) finally issued a groundbreaking precedential decision recognizing domestic violence may be a basis for asylum. See Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014). The BIA was first asked to consider whether a woman who was abused by her husband could be deemed a member of a social group for purposes of asylum in the Matter of R-A-. See Matter of R-A-, 22 I. & N. Dec. 906 (BIA 1999). Though the BIA agreed with the IJ's finding that the abuse suffered by R-A- rose to the level of past persecution and the Guatemalan government had been unwilling and/or unable to stop the abuse, it nonetheless concluded the abuse was not on account of one of the protected grounds (i.e. political opinion, race, religion, nationality, and/or membership in a particular social group). Id. This decision was subsequently vacated by Attorney General Janet Reno pending consideration of proposed Federal Regulations, which would have specifically provided for gender-based asylum claims. See Matter of R-A, 22 I. & N. Dec. 906 (A.G. 2001). On February 21, 2003 Attorney General John Ashcroft certified the Matter of R-A- for review and allowed for additional briefing. Id. The Matter of R-A- was again remanded to the BIA in January 2005 by Attorney General John Ashcroft “for reconsideration following final publication of the proposed rule published at 65 Fed. Reg. 76,588 (Dec. 7, 2000).” Matter of R-A-, 23 I. & N. Dec. 694 (A.G. 2005). These proposed Federal Regulations were never enacted. On September 25, 2008 Attorney General Michael Mukasey certified the case yet again. He issued a decision suspending the stay of adjudication previously imposed pending enactment of the proposed Federal Regulations and again remanded the Matter of R-A- to the BIA for reconsideration of the issues presented under the present construction of United States asylum law. Matter of R-A-. 24 I. & N. Dec. 629 (A.G. 2008). The BIA subsequently remanded the Matter of R-A- to the Immigration Court in San Francisco, California on December 4, 2008 upon joint motion of the parties. This remand allowed both parties to further develop the administrative record regarding the social visibility of the respondent's proposed social group. The respondent in the Matter of R-A- was subsequently granted asylum by the Immigration Court in San Francisco, CA in December 2009.

While the Matter of R-A- was pending before the Immigration Court in San Francisco, CA, the Department of Homeland Security (DHS) “accept[ed] that in some cases, a victim of domestic violence may be a member of a cognizable particular social group and may be able to show that her abuse was or would be persecution on account of such membership.” DHS's Supplemental Brief in the Matter of L-R- dated April 13, 2009, page 12. According to DHS, the particular social group for purposes of asylum and withholding of removal for “claims based on domestic violence is best defined in light of the evidence about how the respondent's abuser and her society perceive her role within the domestic relationship.” Id. at 14. In the context of the Matter of L-R-, the evidence demonstrated the abuser believed “women should occupy a subordinate position within a domestic relationship”, Id., and “abuse of women within such a relationship can therefore be tolerated, and that societal expectations in Mexico reinforce this view.” Id. Though DHS had changed its position as to whether domestic violence could form the basis of an asylum claim, the BIA did not issue a precedential decision. Rather, the BIA remanded the matter to the Immigration Court in San Francisco, CA for further fact-finding. The respondent in the Matter of L-R- was subsequently granted asylum by the Immigration Court in San Francisco, CA on August 4, 2010.

Though the respondents in the Matter of R-A and Matter of L-R- were eventually granted asylum, there was still no precedential decision from the BIA clearly recognizing domestic violence as a basis for asylum. The lack of precedential decision from the BIA recognizing domestic violence as a basis for asylum was problematic as it left Immigration Courts throughout the country without guidance, which in turn resulted in a lack of uniformity when adjudicating such claims. On August 26, 2014, the BIA issued a precedential decision in the Matter of A-R-C-G- specifically recognizing domestic violence as a basis for asylum. The BIA concluded an asylum applicant may be able to establish the domestic violence was on account of the asylum applicant's membership in a particular social group. The BIA applied the legal principles from the Matter of W-G-R- and Matter of M-E-V-G- requiring “an applicant seeking asylum based on his or her membership in a 'particular social group' [ ] establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. Dec. at 392. See also Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014); and Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014).

The proposed social group in the Matter of A-R-C-G- was “'married women in Guatemala who are unable to leave their relationship.'” Id. The BIA specifically found “the group is composed of members who share the common immutable characteristic of gender.” Id. citing Matter of Acotsa, 19 I. & N. Dec. 233 (BIA 1985). The BIA also found that marital status could also be considered an immutable characteristic “where the individual is unable to leave the relationship.” Id. at 393. The BIA further found the proposed group in the Matter of A-R-C-G- was both particular and socially distinct. Id. The BIA found that the terms used to describe the group (i.e. “married”, “women”, and “unable to leave the relationship) could be combined “to create a group with discrete and definable boundaries.” Id. The BIA reminded the adjudicator that in assessing “a group's particularity, it may be necessary to take into account the social and cultural context of the alien's country of citizenship or nationality.” Id. See also Matter of W-G-R-, 26 I. & N. Dec. at 214. The BIA further found the group was socially distinct. Id. at 394. The group's social distinction “is 'determined by the perception of the society in question, rather than by the persecutor.'” Id. at 393-394 citing Matter of W-G-R, 26 I. & N. Dec. at 217. To make a determination on social distinction where the asylum claim is based upon domestic violence, the adjudicator should consider evidence regarding “whether the society in question recognizes the need to offer protection to victims of domestic violence, including whether the country has criminal laws designed to protect domestic abuse victims, whether those laws are effectively enforced, and other sociopolitical factors.” Id. The BIA cautioned that “even within the domestic violence context, the issue of social distinction will depend on the facts and evidence in each individual case, including documented country conditions; law enforcement statistics and expert witnesses, if proffered; the respondent's past experiences; and other reliable and credible sources of information.” Id. at 394-395.

The BIA's landmark decision in the Matter of A-R-C-G- is a major victory for immigrants as it provides strong support for women who have fled to the United States after enduring horrific domestic violence. However, it is important to note that not all victims of domestic violence will qualify for asylum. A grant of asylum will depend upon the particular facts of the claim including country conditions, law enforcement statistics, expert witnesses, the asylum applicant's past experiences, and other credible evidence.