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Domestic Violence and Political Asylum

Recent Landmark Victories in the On-Going Struggle for U.S. Immigration Law to Recognize and Fully Protect Women's Human Rights

November 19, 2010

Written by Lisa Mendel-Hirsa 1

Introduction

In order to be eligible for political asylum in the United States an individual must establish that he or she is a refugee under the Immigration and Nationality Act.  He or she must be outside his or her country of nationality, and be unable or unwilling to return to that country because of past persecution or a well-founded fear of future persecution on account of one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group.2 The applicant must prove that the feared persecution is either by the government or by groups or individuals the government is unable or unwilling to control.3 This article explores two recent landmark decisions, Matter of R-A-4 and Matter of L-R-5, which establish that victims of domestic violence can fit within the definition of a protected ground for asylum.

The applicant in R-A-, was granted asylum by an immigration (administrative) judge in 1996 as a member of a particular social group based on her status as a victim of  domestic violence.  Immigration and Naturalization Service (INS), now Department of Homeland Security (DHS), appealed the judge’s decision and in 1999 the Board of Immigration Appeals (BIA) reversed the judge in a precedent decision.  United States Attorney General Janet Reno vacated the BIA’s opinion in 2000 and for ten years there was no further determination.  Pursuant to Attorney General Reno’s directive, the INS promulgated a proposed rule in 2000 addressing the issues in R-A-.  However, the rule was never finalized.

In 2009, under the Obama administration, the DHS filed a supplemental brief in another asylum claim of a victim of domestic violence, Matter of L-R-.  The brief explicitly states that it represents the current DHS position on whether victims of domestic violence can be members of a particular social group under the meaning of the Immigration and Nationality Act.6  DHS advanced two alternate social groups that victims of domestic violence may fit within to have a cognizable claim for asylum.7

In order to fully understand the groups proposed by DHS, as well as what these cases mean for gender based claims to asylum,  this article presents an in-depth analysis of the facts, issues and procedural histories of both cases.  It also addresses how the cases comply with the BIA’s requirements for establishing eligibility for asylum as a member of a “particular social group”.

I. Under Matter of L-R- (2010) and Matter of R-A- (2009), victims of domestic violence can  establish eligibility for asylum as members of a “particular social group”

(a)  Meaning of “Particular Social Group”

According to the recent cases Matter of R-A- 8 and Matter of L-R-9, decided in 2009 and 2010 respectively, victims of domestic violence may establish eligibility for asylum under the protected ground of membership in a “particular social group”.  Of the five protected grounds it is, according to DHS, the “least well-defined and understood”.10  The Board’s long standing and widely accepted rule for whether a “particular social group” is cognizable was first enunciated in Matter of Acosta.11  Under Acosta, members of a proposed social group must share an “immutable characteristic” that is so fundamental to their identity that they either cannot or should not be required to change it.12  The Board in Acosta identified sex and ethnicity as two such immutable characteristics by which social groups can be identified.13  It was in the landmark case concerning female genital mutilation, In Re  Kasinga,14 that the Board held that a social group defined by gender in combination with other characteristics is cognizable.15  Even before Kasinga, the federal courts recognized that gender could be the defining factor of a “particular social group” under U.S. asylum laws.16

Until 2006, the Acosta factor of immutability was the primary factor the BIA required an applicant to show in order to establish eligibility as a member of a “particular social group” . In Matter of C-A-,17 the Board identified the additional factor of “social visibility”, and held that not all groups sharing an immutable or fundamental characteristic are cognizable as “particular social groups.”  The Board noted that in its prior cases dealing with “particular social groups”, it had also considered the recognizability, or social visibility, of a proposed group. The Board explained that social groups based on innate characteristics such as sex or family relationship are easily recognizable and understood by others to constitute social groups.  The Board therefore rejected the claim of confidential informants as being members of a “particular social group” because the very nature of their conduct is out of the public view.

In 2008 in Matter of S-E-G 18 the BIA articulated a third required factor of “particularity” and ruled that in addition to the Acosta test of immutability, the additional factors of particularity and social visibility are actual required elements of a “particular social group claim”.  According to the Board, the “essence of particularity is whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons”.19  The key question according to the Board is whether the proposed description is sufficiently particular or is too amorphous to create a benchmark for determining membership.

The Board’s holding that in order for applicants to be eligible members of a “particular social group” they must be able to demonstrate immutability and the additional requirements of social visibility and particularity is problematic, as pointed out by Lisa Frydman of the Center for Gender and Refugee Studies (CGRS).  Frydman notes that the United Nations High Commissioner for Refugees, (UNHCR), in its guidelines regarding gender, define social group (for the purpose of determining refugee status) as a group of individuals either possessing a common immutable characteristic or as being perceived as a group by society.20 The definition states:

“A particular social group is a group of persons who share a common characteristic other than the risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one that is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights”.21

By requiring a proposed social group to have both immutability and visibility, the BIA has created a definition that is narrower than, and inconsistent with, the UNHCR definition.  In his advisory opinion on behalf of UNHCR in Matter of R-A-, Eduardo Arboleda, the Deputy Regional Representative and Officer in Charge of the Office of UNHCR for the U.S. and the Caribbean, noted that as a party to the 1967 Protocol relating to the Status of Refugees “U.S. courts have an obligation to construe U.S. statutes in a manner consistent with U.S. international obligations wherever possible”.22  In further support of this  statement, the UNHCR advisory opinion cites to one of the leading Supreme Court decisions pertaining to asylum, INS v. Cardoza-Fonseca,23 where the Supreme Court found “abundant evidence” that congress intended to conform the definition of refugee and the asylum law of the U.S. to the Protocol on the Status of Refugees.

(b)  The social groups DHS advanced in L-R- meet the BIA’s three requirements for a cognizable  particular social group: immutability, social visibility and particularity.

In its brief in Matter of L-R-, DHS advanced two different formulations of “particular social group” that could, in appropriate cases, qualify victims of domestic violence for asylum.24  The DHS brief notes that, under normal circumstances, social group formulations not raised at the immigration court level would not be considered by the Board on appeal, but where significant legal developments intervene (as in the case of R-A- and L-R-), remand may be an appropriate mechanism to allow an applicant to fully develop eligibility for asylum or withholding of removal on alternative theories.25  DHS states that it is the position of the agency that, in light of the uneven development of standards in cases dealing with asylum and domestic violence, it is important for it to articulate how a social group in such cases might be defined.26 

The DHS brief states at the outset that only those victims of domestic violence who meet all other statutory requirements for asylum will be eligible to present a cognizable claim based on membership in a particular social group. DHS notes that two considerations of those required to be shown in all asylum cases are likely to be of particular significance in domestic violence cases: the requirement that there be no reasonable option of avoiding abuse by relocating to a different place within the home country, and the requirement that the state is unwilling or unable to protect the applicant.27

DHS states that the “particular social group” in  asylum and withholding claims based on domestic violence is best defined in light of the evidence about how the applicant’s abuser and her society perceive her role within the domestic relationship. In the case of L-R-, DHS notes that the evidence suggests that Ms. L.R.’s abuser

“. . . believes women should occupy a subordinate position within a domestic relationship and that, in his eyes, the female respondent remains in this subordinate position within the domestic relationship even though she has physically separated from [him].  The evidence further suggests that [her abuser] believes that abuse of women within such a relationship can therefore be tolerated, and that social expectations in Mexico reinforce this view.”28

Based on these considerations DHS advanced two social groups it said would be cognizable: “Mexican women in domestic relationships who are unable to leave,” and “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.”  Social groups formulated in this way would, according to DHS, accurately identify why an abuser chose the applicant as his victim, and also why he continued to mistreat her.  In its brief, DHS posits that either of these two social groups would meet the requirements of a “particular social group”.  DHS did note that there may well be other cognizable social groups that would pass muster under the BIA’s three-part test, and that these would, in accordance with Acosta, be determined on a case-by-case basis.29

(i) Immutability 

In its brief, DHS also acknowledges that there are situations where an applicant’s status within a domestic relationship is immutable within the Acosta meaning for social group analysis.  In a claim    involving past persecution, this would be the case where economic, physical or social constraints may have made it impossible for an applicant to leave the domestic relationship during the time the persecution was inflicted.  In a claim based on a well-founded fear of future persecution, it could be the case where the abuser would not seek a divorce or separation as ending his right to abuse his victim (such as in both L.R.- and R.A- where both abusers continued to abuse the applicants even though they fled).30  Finally, the DHS brief underscores the necessity of considering these claims (as with all asylum claims) in the context of the social, political and historical facts specific to each applicant’s society.  DHS views two factors as directly relevant to the question of whether or not an applicant could, or should be expected to change the shared characteristic.  These are the applicant’s individual circumstances and the social perceptions of domestic violence as reflected in the country conditions evidence in the record.  In R-A-, the record was replete with evidence that the legal system in Guatemala supports patterns of violence against women by refusing to intervene to protect victims of domestic violence.  Respondent’s 2004 brief stated, “The social norms and beliefs include such a broad acceptance of domestic violence that a man can batter his wife in public or drag her down the street by her hair (as R-A-‘s husband did to her) and no one will lift a finger to stop the violence.”31

(ii) Visibility

As part of the analysis of whether a social group meets the BIA’s visibility requirement, social perceptions of domestic violence in a given country are directly relevant. For example, the records in both R-A and L-R- indicated that the applicants sought help from the police multiple times, but the police would not intervene to provide protection because of their stated views that the violence sustained at the hands of the abusers was a “private matter”.  A judge told Ms. Alvarado when she sought protection that he “would not interfere in domestic matters or disputes.”  The police told her they would not provide protection because “she should take care of it at home.” 32  The record in R-A-, showing such an absolute failure on the part of the police and judicial personnel, to protect Guatemalan women from domestic violence, was cited in Respondent’s 2004 brief as evidence of a social norm in Guatemala, that “reflects deeply entrenched attitudes regarding the subordinate status of women.” 33  

The Record in L-R- also reflects the fact that Ms. Alvarado sought protection from the police in Mexico multiple times.  “She would show the police her bruises and injuries, but the police told her that her problems were private and that her life was not in danger.”34  There is ample country conditions evidence in both R-A- and L-R- relating to the social perceptions of domestic violence.  For example, there is evidence from the Department of State in L-R- that notes that although in Mexico there is a law against domestic violence, actual sentences for violating the law are “normally lenient”.  The Department of State evidence in L-R- further notes that “seven states have not yet criminalized domestic violence, and 15 states sanction family violence only when it is a repeated offense.”35  DHS notes in its brief that this sort of evidence may reflect a societal view that the status of a woman in a domestic relationship separates her out into a strata within the society that does not receive protection from domestic abuse.  The applicant’s status by virtue of her relationship to her abuser, “could indeed be the kind of important characteristic that results in a significant social distinction being drawn in terms of who will receive protection from serious physical harm.”36

(iii) Particularity

DHS states that the two social groups it has advanced meet the requirement for being defined with sufficient particularity, that they clearly indicate who is in the group, and accurately identify the shared trait on account of which the applicant is targeted by the persecutor. While it may be the case, DHS argues, that complex and subtle fact inquiries are necessary in a given case to determine whether an applicant does possess these defining traits, “the definitions are capable of application in a manner that allows the fact finder to determine with clarity whether an applicant is or is not a member of the group.”37 DHS recognizes that the ability, or inability, of a victim to leave an abusive relationship could raise concerns regarding the particularity of the two social groups it has advanced in R-A- and L-R-. The foremost concern is that how a victim’s ability to leave a relationship should be defined, is not specified.  Instead, DHS states that the issue should be addressed on a fact-specific, case-by-case basis, the same manner in which the ability of an asylum seeker to relocate within her own country is determined.

II. Procedural History, Issues and Facts in R-A- and L-R-

(a) Facts in Matter of R-A-

Rody Alvarado Pena is a Guatemalan woman who suffered ten years of egregious physical and sexual abuse at the hands of her husband, a former soldier.  Ms. Alvarado’s husband abused her on a daily basis from the outset of their marriage (at which time she was just sixteen years old).

“He would hit or kick Ms. Alvarado whenever he felt like it, wherever [they] happened to be: in the house, on the street, on the bus. He would mistreat her when he was drunk and when he was sober. Her husband dislocated her jaw when her menstrual period was 15 days late; kicked her violently in the spine when she failed to heed his demand that she abort her three to four month old fetus; kicked her in her genital area so violently that she suffered internal hemorrhaging; and brutally raped her time and time again, both vaginally and anally, beating her before and during the unwanted sex. [He]… had guns and knives at his ready disposal, pistol-whipped Ms. Alvarado, broke windows and mirrors with her head, punched, and slapped her, threatened her with his machete, and dragged her down the street by her hair”.38

Her husband repeatedly expressed his opinion that he had the right to treat Ms. Alvarado as he did because of her gender and their relationship.  During his abuse he made statements such as “You’re my woman and you do what I say”, “You’re my woman and I can do whatever I want”.39

In addition to the unspeakably brutal physical and sexual violence inflicted upon Ms. Alvarado by her abusive husband, he caused extreme mental anguish with his terrifying threats of what he would do to her if she tried to escape from him. He told her if she ever left him she would suffer “much worse” than what he had already done to her.  He told her:

“if you ever try to leave, I will come find you. And when I find you, I could kill you, but I’m not going to do that – I will break your legs. I will cripple you so that you will be in a wheel chair for the rest of your life.  I will mark your face so it will be scarred forever, it will be twisted and deformed. 40

At other times he threatened  that he would kill her if she ran away and he found her.  He told her, “you can’t hide, even if you are buried under ground, you can’t hide from me. I don’t care what you do.  You can’t get away.  Go ahead.  Try to disappear and I will cut off your legs so you can’t get away anymore”.41

Despite her repeated efforts to gain government protection, the courts and the police refused to intervene.  Ms. Alvarado’s abusive husband could both make and carry out his threats with impunity because of the institutionalized discrimination against women in Guatemala, and the absolute failure of governmental protection.42  As noted in  Respondent’s 2004 brief,“ neither the police nor the courts of Guatemala intervened once over the entire course of this decade-long brutal marital  relationship.”43  When she ran away, her husband tracked her down and beat and kicked her unconscious in front of their children. Desperate to save her life, she fled to the U.S., leaving her two children with relatives.

(b) Procedural History and issues in R-A-

The procedural history of R-A- stretched over fourteen years and saw the intervention of three attorneys general.  Due to the complex legal issues and the fact that the law in the intervening years started to develop unevenly and inconsistently, DHS itself stepped in to articulate the formula to be used in presenting the asylum claims of domestic violence victims. R-A- became the most well known case regarding domestic violence and asylum.

Rody Alvarado applied for asylum in 1995 based on the brutal domestic violence inflicted on her in Guatemala by her husband, and her fear that it would continue if she were to return.44  An immigration judge found her testimony credible and granted her application in 1996.  The judge ruled that the harms she suffered constituted persecution, that the government of Guatemala was unwilling to protect her, and that the persecution was on account of two of the required statutory grounds: social group membership and political opinion.  The social group was defined by nationality, gender and marital status (Guatemalan women who have been intimately involved with Guatemalan male companions, who believe that women are to live under male domination.)45  DHS (at that time INS) appealed the decision to the BIA. In 1999 the BIA agreed that she was credible, but concluded she was not eligible for asylum and reversed the immigration judge in a sharply divided 10-5 precedent decision.46  The Board accepted that the violence Alvarado suffered rose to the level of persecution and that she had been unable to secure state protection, but the BIA majority rejected the ruling of the immigration judge that the persecution was on account of social group membership and political opinion.47

The INS had argued, before the judge and the BIA, that Alvarado did not qualify for asylum.  However, after the BIA decided the case in accordance with the INS’s arguments, the INS itself re-examined the case and concluded that the Board’s analysis of several issues was problematic. The Department of Justice (DOJ) agreed.48  Counsel for Ms. Alvarado filed a Petition for Review with the Ninth Circuit Court of Appeals and simultaneously requested that Attorney General Janet Reno certify the opinion.49  In 2000 DOJ issued a proposed rule 50 which directly addressed the issues in Ms. Alvarado’s case and in 2001, the Attorney General accepted certification, vacated the BIA’s decision, and directed the Board to decide the case pursuant to the rule when it was issued in final form.51  Under the proposed framework, it would be possible for victims of domestic violence to be granted asylum under certain limited circumstances.52  The proposed rule has still not been finalized and is currently under the jurisdiction of DHS. Counsel for Ms. Alvarado noted in her 2004 brief that “the government is on record as stating that the regulation represents its best interpretation of the refugee definition”.53

In 2003, Attorney General John Ashcroft directed the BIA to certify to him the Decision in Matter of R-A-.  Counsel for Ms. Alvarado requested permission to brief the issues and asked for clarification as to whether the Proposed Rule continued to represent the agency’s best interpretation of the refugee definition. After the Attorney General denied Counsel’s request for briefing, 62 members of the House of Representatives made an appeal to the Attorney General that he allow briefing, as an example of sustained Congressional interest in the case, and the issues it raises regarding the protection of women victims of gender violence.54  Within a month, Attorney General Ashcroft issued an order to allow briefing by both parties.

In its 2004 brief, DHS argued that Ms. Alvarado had established statutorily eligibility for asylum.55 The DHS brief stated that the BIA’s social group analysis in R-A- was flawed and warned if it were to be reinstated as precedent it would “impede rational, coherent development of particular social group law”.56 DHS further argued that the record in R-A- strongly supported the closing arguments to the judge, contending that it was because of her status as a married woman that she was harmed. It stated that, while the social group formulation articulated by the immigration judge in R-A- was too general and contained an impermissible flaw (the judge defined the group by the harm the applicant feared), DHS advanced an alternate social group that it said would meet the requirements for persecution on account of social group membership- that of “married women in Guatemala who are unable to leave the relationship.”  DHS stated in its brief that “the social group in this case is best defined in light of the evidence that Alvarado’s husband believes that women should occupy a subordinate position within a marital or intimate relationship, that Alvarado must remain in this subordinate position in the relationship, that abuse of women within such a relationship can therefore be tolerated, and that social expectations in Guatemala reinforce this view.”57

DHS argued element by element that Ms. Alvarado was eligible for asylum. Later that year, in 2004, eighteen senators urged the Attorney General to follow DHS’s recommendation and grant asylum to Rody Alvarado.58  In January 2005, Attorney General Ashcroft remanded Matter of R-A- back to the BIA.  In September 2008, Attorney General Mukasey certified Matter of R-A- to himself and issued a decision ordering the BIA to reconsider it, removing the requirement that the BIA await the issuance of the proposed regulations.59  In December 2008, The BIA granted a joint motion to remand the case back to immigration court to develop the record on the new requirements of social visibility and particularity pertaining to social group claims.

CGRS submitted its filing on social visibility and particularity in August 2009. CGRS notes that prior to its filing date, DHS attorneys under the Obama administration unexpectedly filed an amended brief in the L-R- case in which they argued that women who have suffered domestic violence may qualify for asylum based on membership in a particular social group if they meet certain, clearly defined criteria.60 According to CGRS, the DHS brief in L-R- provides a roadmap for how to establish membership in a particular social group in a domestic violence asylum case and it therefore served as a template for CGRS’s August 2009 filing in R-A-.

CGRS argued that Ms. Alvarado’s proposed social group, “married women in Guatemala who are unable to leave the relationship”, was defined by immutable characteristics and fulfilled the new social visibility and particularity requirements.61  CGRS also submitted affidavits from two leading experts on domestic violence in Guatemala. In October 2009 DHS filed its response stating that Ms. Alvarado was eligible for asylum and merited a grant of asylum as a matter of discretion. On December 10, 2009, the immigration judge issued a summary decision granting asylum to Rody Alvarado. 

(c) Facts in L-R-

Ms. L.R. is a Mexican woman who was kept in virtual captivity for twenty years by her common-law husband, during which time he inflicted brutal physical and sexual violence and abuse upon her.  When she was nineteen years old and attending a teacher-training program in Mexico, he was the school’s sports coach.  He raped her at gunpoint and for the next two decades kept her like a prisoner, using physical force, beatings and death threats against her and her family members to prevent her from leaving him.62  He raped her regularly and tormented her mentally and physically. When she tried to leave him he retaliated with even more extreme abuse.  On one occasion he locked her in a room and tried to burn her alive. The police ignored her pleas for help and in fact worsened her situation because they informed her common law husband that she had reported his abuse, and this resulted in even more serious beatings.63

The Center for Gender and Refugee Studies (CGRS), which represented Ms. L.R., explained, “The response from the Judiciary was essentially just as atrocious.  When her common-law husband prevented Ms. L.R. from seeing her three children (all of whom were the result of being raped by him) and she sought assistance from a judge, he told her he would help only if she had sex with him, and when she refused, he told her she was a bad mother, because a good mother would do anything for her children”.64

She eventually managed to flee to the U.S. in 1991 but her abusive common-law husband tracked her down and forced her to return by threatening to take away her children and kill her.  He continued to terrorize her physically and he also verbally abused their children.  She realized that he would not stop until he killed her and that neither the police nor the courts would protect her.  In 2004, she managed to escape for good with her children. Although she was finally free of abuse in the United States, she was paralyzed by having been a victim of domestic violence for twenty years.  She suffered from nightmares, anxiety, depression and insomnia.  Memories of her past were so painful that she tried to avoid any reminders of it and was unable to plan for anything beyond daily survival. As a result, she did not immediately seek asylum. At the urging of one of her sons, she sought legal counsel and filed for asylum nineteen months after arriving in the U.S.65

(d) Procedural History and issues in Matter of L-R-

Ms. L.R., like Ms. Alvarado, was the victim of severe and brutal domestic violence.  One major difference between the two cases is that Ms. L.R. faced an additional burden in her asylum case relating to a provision of asylum law known as the one-year bar.  Applicants for asylum are required to file their applications within one year of arriving in the U.S. or, in the absence of extraordinary circumstances, they are statutorily barred from applying.66  Ms. L.R. filed her asylum application seven months after the one-year period ran.  As a result, the asylum office referred her to an immigration judge who denied her claim.  The judge never questioned Ms. L.R.’s credibility and did find she had suffered past persecution in the form of “severe sexual and physical abuse”, but ruled that she was barred from asylum because she failed to file within a year of arriving in the U.S.  He also found that the persecution she experienced was not on account of a protected ground.  The judge therefore also denied her application for withholding of removal.67

Ms. L.R.’ s attorneys presented expert testimony explaining that she suffered from Post-Traumatic Stress Disorder (PTSD) and had a “foreshortened” sense of the future that prevented her from thinking beyond surviving in the present and planning for the future.  The expert testimony also detailed the intense psychological distress she experienced whenever exposed to cues that reminded her of the trauma she had survived.68  The judge ruled that even though he accepted the expert’s diagnosis of PTSD, in his view Ms. L.R.’s ability to care for her children undermined her argument that her suffering from PTSD caused her untimely filing and refused to waive the bar. 

Ms. L.R.’s attorneys argued that she was a member of a social group defined by her gender and inability to leave an abusive domestic relationship, similar to the social group advanced by DHS in its 2004 brief in support of Rody Alvarado’s claim based on domestic violence.69  Despite the similarity between the two cases, the judge agreed with the DHS attorney assigned to the case that the social group presented by Ms. L.R. was not cognizable. The judge also ruled that Ms. L.R.’s persecution was not on account of a protected ground. He did acknowledge that Ms. L.R.’s abuser viewed her as property but found that he abused her because he was a violent man, not because of her gender or status in the relationship.70

Ms. L.R. appealed the judge’s decision to the Board of Immigration Appeals.  One of the arguments in the initial brief filed by DHS during the Bush administration was that Ms. L.R. had failed to present a cognizable social group or that her persecution was on account of such membership.  Under the Obama administration, however, the DHS position changed.71   DHS filed a supplemental brief arguing that women like Ms. L.R., who have suffered domestic violence, could qualify for asylum as members of a particular social group.72  In DHS’s view, as articulated in its 2009 brief, a social group defined in light of the evidence in Ms. L.R.’s case might be “Mexican women in domestic relationships who are unable to leave”, or as “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.” DHS argued that groups understood in these ways, if adequately established in the record in a given case, would meet the minimum requirements for a particular social group and that they then may  both accurately identify the reason why [the abuser] chose the female respondent as his victim and continued to mistreat her.

The DHS Brief in L.R. set forth the elements of a successful claim, stating that a woman would have to show that in her country:

1)  the society and legal norms tolerate and accept violence against women;
2)  the government is unable or unwilling to protect her; and
3)  there is no place within the home country that the woman could relocate to in order to escape  her persecutor.73 

The parties filed a joint motion asking the BIA to remand the case to immigration court. It was at this point that CGRS began representing Ms. L.R. On remand they submitted the expert testimony of Dr. Stuart Lustig, a professor of Psychiatry at University of San Francisco Medical Center who has published numerous articles on refugees and trauma. Dr. Lustig’s testimony explained there is a common misperception that PTSD affects overall functioning. He explained the medical evidence refutes such an inaccurate understanding of how PTSD affects trauma victims. The judge’s misunderstanding of PTSD, for example that if individuals can function day to day they should be able to plan for the future and file a timely asylum application, is contrary to what experts now know based on their research of PTSD.  Dr. Lustig’s affidavit explained, “PTSD frequently causes people to avoid anything that reminds them of their trauma and renders them unable to participate in activities unrelated to immediate survival, such as the process of seeking asylum.”74

Ms. L.R.’s attorneys based their arguments on the social group formulations from the 2004 brief DHS submitted, arguing that Ms. L.R. was a member of the social group of “Mexican women in domestic relationships who are unable to leave” and that she was targeted on account of her group membership.75 The extensive country conditions evidence submitted by CGRS supported these arguments. As far as the one-year bar was concerned, Ms. L.R.’s attorneys argued that her PTSD was an extraordinary circumstance that prevented her from filing a timely asylum application.  They argued that considering the depression and continuing PTSD she experienced as the victim of two decades of brutal domestic violence, a seven-month delay in her filing was quite reasonable.76

DHS’s position was that Ms. L.R. was eligible for asylum and merited it in the exercise of discretion. An immigration judge granted Ms. L.R.’s request for asylum on August 4, 2010 in a summary order noting that it was the result of “stipulation of the parties”.77

III.  The Continuing Need for Advocacy for Legislation and Regulations because of the lack of Binding Authority

Although the decisions in L-R- and R-A- are a cause for celebration, it is crucial that advocacy continues for clear national guidance on asylum claims based on domestic violence.  While the DHS brief and the judge’s decisions in L-R- or R-A- may be persuasive to some other judges, they are not binding on immigration judges, the BIA or federal judges because the decision of an immigration judge does not have precedential value.78  Since the DHS Brief in L-R- is from DHS headquarters, it is the official agency position regarding domestic violence asylum claims and asylum officers and DHS trial attorneys should not take positions inconsistent with it. However, there have been reports of a number of cases in which DHS attorneys have taken positions contradicting the DHS brief in L-R-, refusing to acknowledge the brief, or arguing that it does not present the official view of the agency.79  In addition, CGRS attorneys note the inconsistency among immigration judges’ decisions on domestic violence based asylum claims, with “some judges granting asylum based on the framework set out in the L-R- brief, and others denying protection due to the lack of binding authority in the form of a precedential decision, federal regulations, or legislation.”

Regulations and legislation are needed in order to clearly articulate U.S. policy.80  As Karen Musalo of CGRS notes, the policy granting gender-based asylum claims is “nothing novel or revolutionary. To the contrary it is well-accepted under international norms, as well as pursuant to the domestic laws of many refugee receiving countries.  The UNHCR has made recommendations for such acceptance beginning in the 1980’s.”81  Musalo notes that the high courts of the United Kingdom, Australia, and New Zealand, among others, have handed down landmark decisions recognizing the validity of gender based asylum claims.  In addition, many other countries have addressed this issue through formal guidance for adjudicators, and through legislation and regulations.  It is time the U.S. takes the appropriate action to remedy this lack of protection for women’s human rights in our immigration jurisprudence.

Footnotes

1   Ms. Mendel-Hirsa has worked in the field of immigrant and refugee rights since 1993 when she graduated from Brown University.  She is a 2000 graduate of Suffolk Law School and her work has included stints at a non-profit organization helping refugees apply for permanent residence and citizenship, a small firm concentrating in asylum, deportation defense and family immigration law, and a university where she worked on visa applications for faculty and research scholars.  Her primary work currently is parenting and serving as a volunteer immigration attorney for Empire Justice Center.  To discuss the article, you can contact her at lmendel@empirejustice.org.
2   Immigration and Nationality Act (INA) § 101 (a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (2008). See also INS v. Elias-Zacarias, 502 U.S. 478, 483-4 (1992) (holding that an asylum applicant must provide evidence that a persecutor is motivated to persecute a victim because the victim possesses or is believed to possess one or more of the protected characteristics in the refugee definition).
3   See INA Supra note 2.  The definition of refugee under the INA includes a provision that an individual is unable to avail him or herself of the protection of the government of the country of nationality. See also Matter of Villalta, 20 I&N Dec. 142, 147 (BIA 1990) (granting asylum to an applicant who established a well- founded fear of persecution based on his own and his immediate family members being singled out and threatened with death by a Salvadoran Death Squad and the fact that his brother was subsequently killed in a noncombatant situation); Matter of H, 21 I&N Dec. 337 (BIA 1996) (finding an applicant had established past persecution as a member of the Marehan subclan of Somalia, whose members share linguistic and kinship ties. The Board also held that interclan violence arising during the course of civil strife does not preclude the possibility of persecution under INA § 208 (a) and that persecution may exist regardless of whether or not a national government exists.
4    Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008). The Respondent in R-A- was finally granted asylum after a fourteen year battle by an immigration judge on December 10, 2009.
5   Matter of L-R-, granted by an immigration judge on August 4, 2010.
6   Department of Homeland Security’s Supplemental Brief”, Matter of L-R-, filed April 13, 2009.
7   The brief submitted in L-R, according to the Center for Gender and Refugee Studies (CGRS), national experts on gender-based  refugee claims, provides a “roadmap” for how victims of domestic violence can formulate an asylum claim based on membership in a “particular social group”. The Director of CGRS, Karen Musalo, is counsel for both R-A-and L-R- and was also counsel in In Re Kasinga (21 I&N Dec. 357 (BIA 1996), the first precedent decision in U.S. law granting asylum to a woman fleeing a gender-based form of persecution. (See Karen Musalo, Toward Full Recognition of Domestic Violence as a Basis for Asylum, American Constitution Society for Law and Policy, August 20, 2010, http:/www.acslaw.org/node/16763.)
8   See Supra note 4.
9   See Supra note 5.
10  See DHS 2009 Brief in L-R-,Supra note 6 at 7.
11  Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), modified, Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
12  Id. at 212.
13  19 I & N Dec. 211 at 233.The Board held that the required shared immutable characteristic might be “an innate one such as sex, color or kinship ties”.
14  In re Kasinga, 21 I&N Dec. 357 (BIA 1996).
15  Id. at 357. The Board held “young women who are members of the Tchamba-Kunsuntu Tribe of Northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe, and who oppose the practice, are recognized as members of a “particular social group” within the definition of the term “refugee” under section 101 (a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(42)(A)(1994). See also Brief on Behalf of Rodi Alvarado Pena to the Attorney General of the United States, filed February 18, 2004 at 13. Counsel in the Kasinga case Karen Musalo is also counsel in Matter of R-A-. She explains that the social group in Kasinga is defined by “gender, ethnicity, bodily integrity, and opposition to female genital mutilation”.
16  See 2004 Brief in R-A-, Supra Note 15 at 12. As examples of federal court recognition of gender defining social groups prior to Kasinga, the brief cites Fatin v. INS, 12 F.3d 1233, 1240-41 (3rd Cir. 1993) and Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) (agreeing with the Fatin holding that a group of women who refuse to conform way well satisfy the definition of “particular social group.”)
17  Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), aff’d, Castillo-Arias v. U.S. Att’y Gen.,446 F.3d 1190 (11th Cir. 2006), cert. denied sub nom. Castillo-Arias v. Gonzales, 127 S.Ct. 977 (2007).
18  24 I&N Dec. 579 (BIA 2008).
19  Id. at 584.
20  Lisa Frydman, After Rody Alvarado’s Victory, Obstacles Remain for Domestic Violence Victims Seeking Asylum, National Immigration Forum, ImmPolitic Blog, February 12, 2010. Frydman points out that while UNHCR guidelines advise that groups perceived as groups by society may be social groups, this approach is an alternative to the immutability test, not in addition to it. She explains that “in addition to being analytically confusing, BIA decisions often conflate social visibility and particularity with other elements of the refugee definition, such as whether the causal link (nexus) to a protected ground has been established and whether there is a sufficient likelihood that the applicant would be targeted for future persecution”. She notes that UNHCR has repeatedly clarified its position and rejected the requirements of social visibility and particularity as inconsistent with the purpose and intent of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, but that the BIA has continued to apply them.
21  UNHCR, Guidelines on International Protection: Gender-Related Persecution with the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the status of Refugees (HCR/GIP/02/02, 7 May 2002, Para.29
22  Matter of Rodi Alvarado Pena (A73-753-922) Advisory Opinion on International Norms: Gender-Related Persecution and Relevance to “Membership of a Particular Social Group” and “Political Opinion” Eduardo Arboleda, Deputy Regional Representative and Officer in Charge UNHCR, Regional Office for the United States of America & the Caribbean, January 9, 2004.
23  480 U.S. 421, 436-7 (1987).
24  See DHS 2009 Brief in L-R-Supra Note 6 at 5, 11.
25  Id. at 11.
26  Id. at 14.
27  The DHS brief cites to Matter of Fuentes, 19 I&N Dec. 658, 663 (BIA 1988) (holding that an asylum claim is not adequately established where it is based on nongovernmental action and the evidence is directed to a local area of the applicant’s country of nationality).
28  See DHS 2009 Brief in L.R. Supra Note 6 at 14. See also 2004 Brief in R-A-Supra Note 15 at 19 citing Kasinga, 21 I&N Dec. 357 Supra Note14. Respondent’s Brief noted that the Board’s holding in Kasinga included the requirement that in determining the link between the persecution and the protected ground, there must be an analysis of social and cultural norms.
29  See DHS 2009 Brief in L-R, Id. at 7.
30  Id. at 16.
31  See 2004 Brief in R-A-Supra Note 15 at 20.
32  Id. at 6.
33  Id.
34  See DHS 2009 Brief in L-R-Supra Note 6 at 17.
35  Id. at 18.
36  Id.
37  Id. at 19.
38  See 2004 Brief in R-A-Supra note 15 at 4-5. 
39  Id. at 5.
40  Department of Homeland Security’s Position on Respondent’s Eligibility for Relief; Matter of R-A-, Filed Feb 19, 2004, 23 I&N Dec 694 (A.G. 2005) (A73-753-922) at 10.
41  Id. at 11.
42  See 2004 Brief in R-A-Supra note 15 at 14.
43  Id. at 6.
44  See DHS 2004 Brief in R-A- Supra Note 40
45  See 2004 Brief in R-A-Supra Note 15 at 1.
46  Matter of R-A-,22 I&N Dec. 906 (BIA 1999).
47  Id.
48  See DHS 2004 Brief in R-A-Supra note 40 at 8.
49  See 2004 Brief in R-A-Supra note 15 at 2.
50  Department of Justice, Immigration and Naturalization Service, Asylum and Withholding Definitions, 65 Fed. Reg. 76588 (Dec. 7, 2000).
51  See 2004 Brief in R-A-Supra note 15 at 2. Counsel for Ms. Alvarado noted that the Commentary to the Proposed Rule explicitly removed certain barriers imposed by that the Board’s decision in R-A-.It states that domestic violence against which a government is unwilling or unable to provide protection rises to the level of persecution on account of membership in a particular social group. Id.
52  Id.
53  Id. The brief noted that this position has been stated for the record in various forums, including before the BIA during the en banc argument of the case INS v. Villabhaneni, A76-734-694 (Transcript of June 21, 2001, BIA hearing en banc, at 45-46).
54  See 2004 Brief in R-A Supra Note 15 at 3.
55  See DHS 2004 Brief in R-A-Supra Note 40.
56  See Id.  at 15.
57  See DHS 2004 Brief in R-A-Supra Note 40 at 27.
58  Center for Gender and Refugee Studies,  Documents and Information on Rody Alvarado’s Claim for Asylum in the U.S., http:/cgrs/uchastings.edu/campaigns/Alvarado.php. Letters were also sent to the Attorney General on Ms. Alvarado’s behalf by a wide variety of civil rights and religious organizations.
59  Id. The CGRS update explains that once Attorney General Mukasey ordered the BIA to reconsider R-A- without waiting for the issuance of regulations, it meant that the BIA could immediately start to consider the case as well as many others that had been placed on hold pending a decision in Matter of R-A-. However, “because the case was litigated prior to the BIA decisions requiring an asylum applicant to establish the social visibility and particularity of the social group to which she belongs, the record in Ms. Alvarado’s case [did] not specifically address these two requirements.”  CGRS approached DHS asking it to join in a joint motion to remand the case back to immigration court in order to present evidence on these issues. DHS agreed to join the motion and in December 2008 the BIA granted the motion and remanded the case back to the San Francisco Immigration Court.
60  See DHS 2009 Brief in L-R- Supra Note 6.
61  In the Matter of Rody Alvarado Pena, A73-753-922, Legal Memorandum and Supporting Documentation”, filed August 19, 2009.
62  Center for Gender and Refugee Studies, Matter of L.R: Background: Ms. L.R.’s Story, http:/cgrs.uchastings.edu/campaigns/Matter of L.R. php.
63  Id.
64  Id.
65  Id.
66  INA § 208(a)(2)(A); 8 C.F.R. § 1208.4(a)(5).
67  See Supra Note 62 at Procedural History.
68  Id.
69  Id. at Social Group Membership and Nexus.
70  Id.
71  Id. at Proceedings before the BIA.
72  See DHS 2009 Brief in L-R- Supra Note 6 at 14.
73  See Supra Note 62 at Proceedings Before the BIA.
74  See Supra Note 62 at Proceedings on Remand to the Immigration Court.
75  See Supra Note 62, at Arguments.
76  Id.
77  Id.
78  Karen Musalo, Supra Note 7.  “Toward Full Recognition of Domestic Violence as a Basis for Asylum”, August 20, 2010.
79  Lisa Frydman Supra Note 20. Frydman notes that some DHS attorneys have even taken the position at the outset of a case and before any evidence is presented, that they will appeal a grant of asylum to the highest level.
80  Karen Musalo, Supra Note 78.
81  Id.

 





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