On Wednesday, June 16th, immigrant survivors of domestic violence seeking asylum and their advocates heralded welcome news from Attorney General Merrick Garland. Ahead of an anticipated proposed rule, Attorney General Garland vacated former Attorney General Sessions’ decision in Matter of A-B-. Attorney General Garland’s decision restores the prior standards relating to asylum protections for survivors of domestic violence from a 2014 decision called Matter of A-R-C-G- and immediately provides more options for survivors of domestic violence seeking asylum.
This decision by the Attorney General benefits asylum seekers and their families in the Hampton Roads region. The Clinic serves many people who fled to the United States to escape domestic violence. These survivors will now have more favorable precedent under which to apply for asylum and make their case to stay in the United States.
How Do Survivors of Domestic Violence Qualify for Asylum?
In order to qualify for asylum, the Immigration and Nationality Act states that applicants must demonstrate that they have suffered or have a well-founded fear of persecution on account of a protected ground: race, religion, national origin, membership in a particular social group, or political opinion. Importantly, gender is not listed in the statute as a protected ground.
Because gender is not explicitly included in the statute, most survivors of domestic and gender-based violence apply for asylum asserting that they were harmed on account of membership in a particular social group. These social groups are generally based on gender; however, in order to conform to the requirements for designation as a “particular social group”, these groups have often been contoured with qualifiers, such as “Honduran women viewed as property” or “married Iranian women who are unable to leave a domestic relationship.” This specificity has often been needed because particular social groups must not only share immutable characteristics and be distinct within society, but they must not be overbroad or diffuse. Many judges have viewed groups such as “Columbian women” or “Afghani women” as overbroad or diffuse because they included too many people. However, this interpretation runs contrary to the UN High Commissioner for Refugees’ interpretation of who should qualify for asylum.
In 2014, Matter of A-R-C-G-, the Board of Immigration Appeals recognized that “married Guatemalan women who are unable to leave a domestic relationship” constitutes a particular social group under asylum law. This interpretation strives to be more responsive to what is well-known about domestic violence. Domestic violence and abuse are not “arbitrary” or “without reason,” as the immigration judge initially ruled in A-R-C-G- at the lower court level. Rather, domestic violence is a series of actions where an abuser demonstrates power and control over their victim, in many cases because of the victim’s gender, and exploits cultural, social, and gender norms to maintain their power. Thanks to A-R-C-G-, many survivors of domestic violence were able to qualify for asylum.
What Was the Rule Under Attorney General Sessions?
In Matter of A-B- (2018), former Attorney General Sessions limited asylum protections for survivors of domestic violence, and set a tone for skepticism with regards to cases based on domestic violence. The former Attorney General overturned Matter of A-R-C-G-, stating that the Board of Immigration Appeals had not considered the particular social group thoroughly enough. Attorney General Sessions reiterated the standard under which particular social groups should be evaluated, and asserted that instances of “private violence” like domestic violence would not qualify a victim for asylum. Although the former Attorney General’s harshest statements related to domestic violence were not binding, they reverberated throughout asylum cases. Following A-B-, many judges were skeptical of—or even hostile to—claims made by survivors of violence, and significantly fewer survivors who fled their home countries were able to receive protection in the United States.
Do Survivors of Domestic Violence Automatically Qualify for Asylum Now?
A grant of asylum is never automatic, even with favorable precedent. Protections for survivors of domestic violence historically have not been robust under asylum law and, even with this change, are still not guaranteed. Gender-based violence cases have often been difficult to win because gender is not categorically a protected ground for which someone can qualify for asylum.
A more permanent and lasting solution for survivors of domestic and gender-based violence would be for a change in law to guarantee that particular social groups described by nationality and gender (i.e. “Turkish women” or “Bengali women”) satisfy the requirements of a particular social group for purposes of asylum. Without this change, asylum seekers who have been persecuted because of their gender will continue to depend on each Administration’s interpretation of this question.
Even so, Attorney General Garland’s decision is a welcome announcement. This decision immediately provides more options for survivors fleeing domestic violence from around the world. The Department of Justice has taken an important first step in assuring protections for survivors of gender-based violence. The work continues to make those steps permanent.
William & Mary Law School Immigration Clinic Blog 