For decades, women who fled to the United States to escape domestic violence in their home countries have faced numerous challenges in establishing their eligibility for asylum. A recent decision by the Board of Immigration Appeals (BIA) makes it significantly easier for survivors of domestic violence to obtain asylum in the United States. This decision should also be of immediate aid to Central American women at risk of being quickly deported from the detention center in Artesia, New Mexico, which was recently opened to hold migrant women with minor children, and has come under sharp critique for violating basic due process.
Requirements for Asylum
In order to obtain asylum, an individual must show past persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a “particular social group” (PSG). In a 1985 decision called Matter of Acosta, the BIA explained that a PSG must be based on an immutable characteristic, one that a person either cannot change or should not have to change because it is so fundamental to identity. Although the BIA recognized in Acosta that sex is an immutable characteristic, the BIA and federal courts have been reluctant to recognize women as a PSG, fearing that this would open the floodgates. In recent years, the BIA has made it even more difficult to obtain asylum under the PSG ground by adding two more criteria to the definition: social visibility and particularity.
These additional criteria have been challenged in several federal appellate courts as a sudden and inexplicable departure from the BIA’s precedents. The Seventh Circuit has outright rejected them, while other courts have demanded further clarification from the BIA regarding their meaning. In 2014, the BIA issued two decisions that attempted to clarify the meanings of social visibility and particularity. See 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 these cases, the BIA renamed social visibility as social distinction and explained that literal visibility is not required. Rather, society as a whole must perceive the members of the group as a group. The BIA further explained how particularity requires the group to have discrete, definable boundaries.
Ms. C-G-‘s Asylum Case
The BIA’s recent decision in Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014) involved a Guatemalan woman whose husband beat her, raped her, broke her nose, and threw paint thinner on her, burning her breast. She called the police multiple times, but they refused to “interfere” in her marriage. On one occasion when she called the police, they came to her home but did not arrest her husband; he threatened to kill her if she called the police again. In 2005, after unsuccessful attempts to escape the violence by staying with her father and moving to a different city in Guatemala, Ms. C-G- fled to the United States with her three minor children and applied for asylum.
Ms. C-G-argued that the violence she suffered at the hands of her husband rose to the level of persecution and was on account of her membership in the particular social group defined as “married women in Guatemala who are unable to leave the relationship.” She also feared future persecution by her husband on this basis. The immigration judge rejected these arguments, dismissing the abuse as “criminal acts” that were perpetrated “without reason.” In A-R-C-G, the BIA reversed that decision, holding that “married women in Guatemala who are unable to leave the relationship” satisfy all of the criteria for a PSG.
First, the BIA recognized that “the group is composed of members who share the common immutable characteristic of gender,” 26 I. & N. Dec. at 392, citing Matter of Acosta, 19 I. & N. Dec. at 233. In addition, the BIA found that marital status can be an immutable characteristic, depending on the particular facts and evidence in a case, and requires considering whether dissolution of the marriage is possible in light of religious, cultural, or legal constraints.
Second, the BIA found that the PSG was defined with sufficient particularity. The BIA noted that the terms “married,” “women,” and “unable to leave the relationship” all help define the boundaries of the group and have commonly accepted definitions within Guatemalan society. The BIA noted that such terms can be combined to create a group with discrete boundaries.
Third, the BIA found the group to be socially distinct, relying on evidence that Guatemala has a culture of “machismo,” where family violence and sexual offenses, including spousal rape, remain a serious problem, and police fail to enforce laws regarding domestic violence. The BIA stressed that the issue of social distinction will depend on the facts and evidence submitted in each case, including country conditions reports, law enforcement statistics, and expert witness testimony.
To date, Matter of A-R-C-G- represents the only BIA precedent that recognizes a PSG in an asylum claim involving domestic violence. Since DHS stipulated in Ms. C-G-‘s case that the harm rose to the level of persecution and was on account of her membership in the PSG, the BIA did not need to address those issues. The BIA remanded the case for the immigration court to address whether the Guatemalan government is unable or unwilling to protect Ms. C-G-, which is required in cases where the persecutor is not the government.
Historical Importance of Matter of A-R-C-G-
Prior to Matter of A-R-C-G-, the only published BIA decision addressing domestic violence was Matter of R-A-, issued in 1999, which also involved a Guatemalan woman who suffered horrific violence at the hands of her husband. In R-A-, the BIA found that Ms. Rody Alvarado Peña had failed to establish a PSG and that the abuse was not on account of that PSG, but former Attorney General Janet Reno vacated that decision in 2001. Two subsequent Attorneys General – John Ashcroft and Michael Mukasey – also became involved in Ms. Alvardo’s case, certifying it to themselves. While Reno and Ashcroft instructed the BIA to hold the case until the Department of Justice finalized regulations proposed in 2000 that would address gender-related asylum cases, those regulations never came. Finally, in 2008, Mukasey ordered the BIA to resolve the case. In 2009, after a 15-year battle, Ms. Alvarado was finally granted asylum by an immigration judge in San Francisco, but there was no published decision on which others could rely.
The definition of a PSG that ultimately succeeded in Matter of A-R-C-G- was developed through Ms. Alvarado’s case, as well as another case called Matter of L-R-. In 2009, while Ms. Alvarado’s case was pending, DHS submitted a brief in L-R- arguing that “married women who are unable to leave their relationship” constitute a PSG and satisfy the immutable characteristic, social visibility, and particularity requirements. An immigration judge granted L-R- asylum based on this PSG in 2010. But different immigration judges have taken different approaches in domestic violence cases, resulting in many conflicting decisions.
By providing a published opinion on which everyone can rely, Matter of A-R-C-G- breaks new ground. Recognizing the importance of this decision, the BIA invited amicus briefs from a number of groups, including the American Immigration Lawyers Association (AILA), the Center for Gender and Refugee Studies (CGRS) at U.C. Hastings, and the UN High Commissioner for Refugees (UNHCR). Decades of bottom-up advocacy by organizations such as the Harvard Immigration and Refugee Clinic, directed by Deborah Anker, which drafted the brief on behalf of AILA, together with Benjamin Casper at the University of Minnesota and myself, culminated in this watershed decision.
BIA Leaves Unanswered Whether Gender Alone Can Define a PSG
Although the BIA reaffirmed that gender is an immutable characteristic, it did not address whether gender alone can establish a PSG, finding it unnecessary to reach this issue. Thus far, most courts have been reluctant to recognize PSGs defined solely by gender. The Ninth Circuit represents one of the exceptions, having held in Mohammed v. Gonzales, 400 F.3d 785, 796-98 (9th 2005), that Somali women constitute a PSG. In that case, the evidence showed that over 98% of women in Somalia are subjected to female genital mutilation. The question that remains is whether the social distinction and particularity requirements would undermine a PSG defined by sex alone.
In stating that the combination of the terms “women,” “married” and “unable to leave the relationship” gives the group discrete boundaries, the BIA’s decision suggests that a PSG defined by sex alone may lack particularity. Common sense, however, indicates that society can easily tell who does and does not belong in a group defined by sex. With the rather narrow exception of transgender individuals, the group of women has clear boundaries. Furthermore, it is unclear why the BIA examines societal expectations about gender and subordination, legal constraints regarding divorce and separation, and the police’s refusal to assist Ms. C-G- in assessing whether her proposed PSG satisfies the “particularity” requirement. The BIA specifically states that the police’s refusal to assist is “significant” to the particularity analysis but fails to explain why. This makes it difficult to extrapolate whether a group defined solely by sex might satisfy particularity.
The BIA’s analysis of social distinction further adds to the confusion, as it focuses on how domestic violence is widespread in Guatemala and again mentions the police’s failure to respond. These facts seem most relevant to whether Ms. C-G- has a well-founded fear of future persecution. It makes little sense to examine the evidence regarding whether the society has laws to protect victims of domestic violence and enforces those laws as part of the social distinction analysis, and then to examine this evidence again as part of the well-founded fear determination.
By mentioning the police’s failure to provide assistance under both the particularity and social distinction prongs of the PSG analysis, the BIA also obscures the difference between these requirements. Oddly, after repeating this fact in parts of the PSG analysis where the relevance is unclear, the BIA remands the case for the Immigration Judge to address whether the Guatemalan government is unable or unwilling to protect Ms. C-G-, which is the most obvious application of the finding that the police did not respond to her requests for help.
As the definition of a PSG becomes increasingly complicated, the room for legal error, interpretive inconsistencies, and discretionary differences among judges looms ever larger. Studies already show huge differences in asylum grant rates among judges, including in domestic violence cases. A PSG defined by sex alone is the most natural social group and most closely resembles the other protects grounds (race, religion, nationality, and political opinion). Defining the PSG by marriage risks leaving out those who cannot or do not marry (including same-sex couples in most countries). Furthermore, the inability to leave a relationship is a fragile concept, especially in light of the fact that the asylum seeker ultimately did leave by coming to the United States.
These considerations weigh in favor of accepting women as a PSG. Once the PSG is established as women, other types of claims involving gender-related harm, such as forced marriage, sex trafficking, female genital mutilation, and the forced use of intrauterine devices, become easier to analyze. Finalizing the regulations that were proposed by DOJ in 2000, which should clarify whether gender can form the basis of a PSG, would represent another huge step forward in protecting women fleeing domestic violence and other types of harm.