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September 28, 2018
In June 2018, Attorney General Jeff Sessions issued a much-anticipated opinion in Matter of A-B- the case of a Salvadoran woman who sought asylum in the United States after fleeing her abusive husband in El Salvador. He overturned the Board of Immigration Appeals’ (BIA) decision granting her asylum and noted that victims of domestic violence “[g]enerally . . . will not qualify for asylum.” The U.S. statute enumerates five grounds for asylum: race, religion, nationality, ethnicity, and membership in a particular social group. The Attorney General’s opinion focused primarily on an analysis of the elusive “particular social group” protection category, finding that the respondent’s group (El Salvadoran women who are unable to leave their domestic relationships where they have children in common) did not constitute a particular social group under the asylum statute.
The opinion devoted comparatively little space to the other prong of asylum: failure of state protection. If an applicant alleges persecution at the hands of a private actor, this prong requires that the applicant be “unable or unwilling” to avail him or herself to the government’s protection in his or her home country.  The Attorney General notes that neither the government’s failure to act on a report of domestic violence nor the persistence of domestic violence in El Salvador necessarily indicates its inability or unwillingness to protect. Rather, he asserts an asylum-seeker fleeing persecution from a private actor must “show that the government condoned the private actions or demonstrated an inability to protect the victims.” Curiously, the holding seems to convert the statute’s original language of “unwilling and unable” to “condoned” or unable, possibly signaling a future debate in courts surrounding what constitutes state protection.
Other countries have taken creative approaches to the state protection analysis in domestic violence cases where the government appears to be unwilling, though not unable, to protect women. In Ex Parte Shah, the United Kingdom introduced what has become known as the ‘bifurcated approach.’ The applicants in Shah were Pakistani women whose husbands had forced them to leave their homes. Both fled to the United Kingdom, fearing that their husbands would falsely accuse them of adultery, which would result in harsh punishment – even death – under Pakistani and Sharia law. The Court of Appeal denied them refugee status, finding that they were not persecuted based on their membership in a particular social group, but the House of Lords reversed.
In its decision, it found that the women were, in fact, persecuted based on their social group in a way that warranted protection, though not by their husbands. The court accepted that the domestic violence they faced was on account of their relationships to their husbands as individuals, which the court deemed a personal affair. However, it also recognized that the Pakistani government was unwilling to protect them because of their gender, not for personal reasons. “There is nothing personal about this,” the court stated. The state denied them protection because they were women, under a scheme of systemic discrimination. The court defined persecution as “Serious Harm + The Failure of State Protection,” where either the harm or the state’s unwillingness to protect could be based on one of the five protected grounds. Even though the domestic abuse was committed for personal reasons, because the government’s unwillingness to protect was tied to the women’s membership in a particular social group – women – the nexus between persecution and a protected ground was established.
Other countries soon followed the United Kingdom’s lead. The Australian High Court aptly articulated the bifurcated approach when it adopted it in Khawar, a similar case involving a Pakistani woman fleeing domestic violence.
Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state . . . then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.
New Zealand courts followed this approach, granting refugee status to a victim of domestic violence from Iran and citing the bifurcated approach in Shah. Like the courts in the United Kingdom and Australia, the New Zealand court recognized that the domestic abuse the applicant suffered was not based on a protected ground, but also recognized that the state refused to protect her based on a protected ground: “the overarching reason why the appellant is at risk of persecution is because she is a woman,” the court stated. Because the court found that the state failed to protect her based on her membership in a particular social group, it granted the applicant refugee status.
In Matter of A-B-, the Attorney General categorized the applicant’s husband’s behavior as motivated by reasons related to their marital relationship, not on account of her membership in a particular social group. Like courts in the United Kingdom, Australia, and New Zealand, the Attorney General recognized that crimes such as domestic violence are typically motivated by personal reasons unconnected to a protected ground. But unlike his international counterparts, his nexus analysis ends there. The United States has not adopted the bifurcated approach and does not recognize a nexus between protected grounds and a state’s failure to protect. The result is a relatively cursory analysis of the Salvadoran justice system’s treatment of the applicant, noting that she was able to obtain restraining orders and an arrest against her husband.
But turning to the State Department’s latest Human Rights Report, it plainly states: “[l]aws against rape were not effectively enforced” in El Salvador, and that laws against domestic violence were “poorly enforced.” Amnesty International classified El Salvador as “one of the most dangerous countries to be a woman.” Given widely accepted country conditions, it is highly likely that many domestic violence victims from El Salvador do not benefit from the same enforcement that the Attorney General believed the applicant in Matter of A-B– did. Certainly, some countries continue to condone, implicitly encourage, or sanction domestic violence. For example, in Burma, Cameroon, and Haiti, domestic violence is not specifically criminalized. In Afghanistan, authorities often “attribute the abuse to a woman’s alleged disobedience of her husband,” and instead accuse women who flee domestic abuse of violating Sharia law, charging them with crimes of “immorality,” “running away from home,” or attempting to engage in extramarital relations. In several countries, the law expressly allows marital rape.
For domestic violence victims in each of these countries – and around the world – who seek asylum in the United States, this current American framework presents an almost-insurmountable hurdle. Even asylum-seekers fleeing state-sanctioned domestic violence will rarely satisfy the nexus requirement if U.S. asylum jurisprudence views the act of domestic violence as personally-motivated and ignores the government’s own critical role in the persecution through non-enforcement and discrimination. The United State’s current asylum framework protects those who are persecuted because of their race, religion, nationality, political opinion, or membership in a particular social group. Should it extend to those who are denied state protection on those grounds? Absolutely. If the United States decides that asylum’s protective ethic warrants that extension, following our neighbors in Europe and Oceania may provide a pathway to safety for women who may now be left defenseless.
 Matter of A-B-, 27 I&N Dec. 316, 320 (A.G. 2018).
 8 U.S.C. §§ 1158(b)(1)(B)
 8 U.S.C. §§ 1101(a)(42)(A)
 Matter of A-B-, 27 I&N Dec. at 316.
 This note and the caselaw discussed apply to asylum claims where the government is unwilling, not unable, to protect women from domestic violence.
 See, e.g. James C. Hathaway & Michelle Foster, The Law of Refugee Status § 4.2, 5.2.2. (2d ed. 2014)
 Islam (A.P.) v. Secretary of State for the Home Department; Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) (Conjoined Appeals)  UKHL 20;  Imm AR 283;  2 AC 629, at 17.
 Minister for Immigration and Multicultural Affairs v Khawar  HCA 14, 8 (Austl.) (emphasis added).
 Refugee Appeal No. 71427/99, 71427/99, New Zealand: Refugee Status Appeals Authority, ¶ 119, 16 August 2000.
 Id. at ¶ 120. The court also found a nexus based on the applicant’s political opinion and religion.
 Matter of A-B-, 27 I&N Dec. at 343.
 It has been widely reported that domestic violence poses a serious, largely unaddressed threat to women in El Salvador. See, e.g. Heather Gies, El Salvador’s hidden tragedy: ‘I can’t take the agony any more’, Al Jazeera (July 11, 2018); Jo Griffin, ‘Police never turned up’: El Salvador’s devastating epidemic of femicide, The Guardian (June 6, 2018); U.S. Dep’t of State, Bureau of Democracy, Human Rights and Labor, El Salvador 2016 Human Rights Report at 21-22
 United Nations, General Assembly, Human Rights Council, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo, A/HRC/29/27/Add. 3 (12 May 2015)
 In a survey of eighty-two jurisdictions, ten countries expressly legalize marital rape.
Suggested Citation: Ericka Welsh, The Government’s Role in Domestic Violence: A different take on nexus formation, RefLaw (Sept. 28, 2018), http://www.reflaw.org/the-governments-role-in-domestic-violence-a-different-take-on-nexus-formation/.