Historic U.S. Board of Immigration Appeals Decision Recognizes Domestic Violence and Gender as the Basis for Asylum

 

By Deborah E. Anker
Clinical Professor of Law and Director, Harvard Immigration and Refugee Clinical Program (HIRC)

Ground-breaking decision following years of “bottom up” advocacy

Lawyers and scholars have been advocating for years for women to be fairly treated under our asylum statute, and one critical issue in this regard has been recognition of domestic violence as a potential basis for asylum. On August 26, 2014, after 20-years of a long and “bottom-up” movement for legal change, the Board of Immigration Appeals (B.I.A. or Board) issued an historic decision, recognizing that gender could be a cognizable characteristic for asylum eligibility purposes, and that domestic violence could, with proper evidence submitted, be the basis for a grant of asylum. The decision represents a ground-breaking reversal of the Board’s 15-year old denial of a claim based on domestic violence, Matter of R-A, issued in 1999 (a decision that was quickly vacated by then Attorney General Janet Reno, but still – until now- lingered over some of the jurisprudence).

The A-R-C-G decision should have a tremendous impact on women from different countries who suffer mental and physical violence (violations of the core human right to physical integrity,1 and where the State is unwilling or unable to protect them. The Board’s decision could have immediate impact for some women in the detention center in Artesia, New Mexico (soon to be closed) Karnes, Texas and the soon-to-be-opened private prison facility in Dilley, Texas, all of which hold migrant women and their children. The treatment of asylum seekers, and the screening and substantial asylum hearings conducted for example at the Artesia facility, Julia Preston of The New York Times describes, as having “come under sharp critique for violating basic due process.”

In our experience, many of the Central American women at Artesia, in addition to other claims, have suffered domestic violence in countries where there was no State protection. We also have clients from other countries who are survivors of violence in their homes, fleeing from countries lacking such protection. Women deserve equal treatment with men in their claims to asylum protection, including where women, because of their gender, face assaults on their bodies in gender-specific contexts.

Facts: “Years of Repugnant Abuse;” Unwilling State Protection; the BIA decision

The Guatemalan applicant in the A-R-C-G– case, married at age 17, began suffering in the Board’s words, “repugnant abuse by her husband,” including weekly beatings. These attacks resulted in a broken nose; on one occasion her husband threw paint thinner on her, which burned her breast. He also raped her. She called the police multiple times, but they refused to “interfere.” On one occasion, when she called the police they came to her house, but did not an arrest her husband, and he threatened if she called the police again, he would kill her.

In A-R-C-G-, the Board found that a person could establish past persecution (a U.S. statutory basis for refugee recognition) or a well-founded fear of persecution under the particular social group (PSG) ground, where she was a survivor of domestic violence, adopting in this case the Department of Homeland Security’s (DHS) formulation of the PSG as “married women who are unable to leave the relationship.” There is a complicated background to this issue in the U.S. context.

Regulatory and Adjudicatory Background

Since former Attorney General Janet Reno vacated the R-A-decision, directing the Board to re-decide it in light of proposed regulations, decision makers, lawyers and advocates have waited for final regulations to be issued. This has not happened, with challenges to final promulgation exacerbated by the 2003 creation of the DHS, with immigration functions divided between that agency and the Department of Justice.2 Since both agencies had to participate in the rule-making regulatory process, finding common ground became even harder than it had been. The Board can also express policy through its adjudicative function (without regulations), but it did not decide this question for many years. Thus, there was no resolution with regard to the direction decision-making on this question would take.

The Board, through adjudication finally attempted (and ultimately succeeded) in taking the lead. In 2011 and 2012, the Board asked for amicus (friend of the court or decision-making body) briefing3 on the question of whether domestic violence could be the basis of asylum. HIRC drafted such briefs for the American Immigration Lawyers Association, which is the major bar association of immigration lawyers (a number of other organizations also worked on the AILA amicus brief), and other organizations, including UNHCR, joined in the amicus effort.

Nothing came of these efforts until the Board finally decided the issue in the August 2014 decision in A-R-C-G. It should be noted, however, that, in the ten years preceding the issuance of the that decision, and following the vacation of the decision in R-A- , persistent advocacy by practitioners and clinics representing hundreds of clients resulted in many claims based on domestic violence succeeding, including at the informal adjudicatory level (the asylum office) and in hearings before immigration judges. As a result of these efforts, the institutional culture “below” was changed, so that the higher-level Board decision in A-R-C-G- became in some sense almost inevitable.4

Without an understanding of this and related institutional developments, some have been confused by aspects of the A-R-C-G- decision. And the decision is confusing in some respects. For example, the case was remanded even though it appeared that DHS had agreed to virtually all the elements necessary for a grant of asylum. The decision is mostly confusing because of underlying distortions in current PSG law. From 1985 to 2006, the Board’s PSG test was embodied in its decision in Matter of Acosta 19 I.N. Dec. 911 (B.I.A. 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987), defining a PSG in terms of an immutability paradigm, where the PSG could be found if it was defined by an innate or otherwise immutable characteristic, which the claimant could not or, because it was so essential to identity, should not, be required to change. “Sex” was the first example given by the Board in Acosta, and after 30 years the Board in A-R-C-G- finally reaffirmed the basic underpinnings of domestic violence and other gender-based claims by holding that “the group is composed of members who shared the common immutable characteristic of gender.” The Board also noted that marital status can be immutable if a person cannot leave the relationship.

However, since Acosta, the Board (not unlike agencies or tribunals in many other countries, and the European Union in its Qualification Directives), has added a requirement of “social distinction” (and in the U.S. case also of “particularity”) onto the Acosta framework, leading to some fundamental incoherencies. In terms of the A-R-C-G- case, the Board, in addressing social distinction, noted the evidence in the record of serious sexual abuse against women, a Guatemalan culture of “machismo and sexual violence”, resulting in the applicant’s inability to obtain State protection. The DHS conceded major Vergleichsmiete issues including past persecution and nexus, but somewhat mysteriously, the Board still remanded the case to the immigration judge on certain issues, including State protection, which it seemed to have already acknowledged as proven. It is noteworthy that, irrespective of the problematic social distinction requirement, to establish absence of State protection, specific evidence must be submitted of relevant conditions in the applicant’s country, which the Board referenced in this case; it is not clear what the social distinction requirement added to the traditional Acosta analysis. Given the earlier tension between regulatory and adjudicatory paths for deciding domestic violence claims, the Board may have gone out of its way to be deferential to the DHS, which (for reasons that are not apparent), requested a remand.

There is no question that, despite these confusions (i.e. not making clear the difference between the social distinction and State protection issue), A-R-C-G- is a major, ground-breaking decision. It reaffirmed that gender could define a PSG for Acosta purposes. It found that an applicant could establish a domestic violence-based claim where she presented evidence of discriminatory social attitudes, from which the State was unable or unwilling to provide protection. And it vindicated the efforts of so many lawyers and advocates, who, representing individual claimants, persisted and obtained many victories in domestic violence cases over the years. In the end, this is a collective victory, in which many in our field should take ownership and pride.

For a fuller analysis of these issues, see Law of Asylum in the United States: 2014 by Deboarh E. Anker. The 2015 edition will be issued in the spring of 2015 and anyone interested can contact the author at danker@law.harvard.edu

  1. International Covenant on Civil and Political Rights – see Articles 6, 7 and 9
  2. See Chapter 4 A.1 of Aleinikoff etal Immigration and Citizenship, Process and Policy Seventh Edition.
  3. See Deborah E. Anker, Law of Asylum in the United States (2014) Section 5.50.
  4. See Deborah E. Anker, “Legal Change from the Bottom Up” in Gender in Refugee Law: From the Margins to the Centre (E.Arbel, C. Davergne, & J. Millbank, eds.) (2014).

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