Rachel Browning’s Legal Blog

            Earlier this week, the Department of Homeland Security (DHS) released a brief it had submitted in response to a request from the Board of Immigration Appeals (BIA) in the case of a Mexican woman and her two children seeking asylum in the United States as victims of severe domestic violence. The BIA had requested supplemental briefing in the case specifically to analyze the issue of whether domestic violence victims can qualify for asylum under the “social group” classification. 

About ten years ago, the BIA first took up the issue and rejected the suggested classification in its precedent decision, Matter of R-A, 24 I&N Dec. 906 (BIA 1999).  Later, then-Attorney General Janet Reno vacated the decision and directed the BIA to stay reconsideration so that the Immigration and Naturalization Service could publish its proposed rules on the issue of asylum and withholding of removal in the context of domestic violence.  Fast-forward ten years, several Attorneys-General, more reviews and remands later, and still no regulations published, the issue has remained unresolved.

            The latest DHS brief, however, signals a shift in a positive direction for victims of domestic violence seeking asylum in the U.S.  While the DHS ultimately rejects the respondent’s articulation of her particular social group classification (as “Mexican women in an abusive domestic relationship who are unable to leave”); it does put forth two alternative definitions it believes provide an acceptable framework in which to analyze these types of asylum claims.  The DHS states that the applicant’s posited definition fails because it basically defines this particular group solely by the persecution suffered or feared by that group, a formulation the DHS believes is flawed as impermissibly circular.  Instead, the DHS suggests 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 respondent’s abuser and her society perceive her role within the domestic relationship.” A group so-defined might be described as “Mexican women in domestic relationships who are unable to leave” or “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.” 

In order to be eligible for asylum, an applicant must establish that he or she has been persecuted or has a well-founded fear of suffering future persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. Of the five protected grounds, “particular social group” has always been the hardest for the courts to define.  Several years ago, then-Judge Samuel Alito remarked in Fatin v. INS, “…read in its broadest literal sense, the phrase is almost completely open-ended.  Virtually any set including more than one person could be described as a ‘particular social group.’”  Nevertheless, the courts have managed to define at least the general contours of the phrase.  Persecution on account of membership in a particular social group means persecution that is directed toward an individual who is a member of a group of persons who share a common, immutable characteristic, i.e., a characteristic that is either beyond the power of the individuals to change, or is so fundamental to their identities that they should not be required to change it.  Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 1999). 

            Anyone seeking asylum under the social group classification, as an individual who has suffered from domestic violence will still have to meet the other qualifications for asylum.  It won’t be enough just to show that abuse has occurred.  All asylum applicants must demonstrate either that the abuse suffered rises to the level of persecution, or that they have a well-founded fear of suffering future persecution; and that there is nowhere else within their country of origin, that they can retreat in order to avoid such persecution.  The requirement of a well-founded fear of persecution means that the individual is subjectively afraid and that the fear of persecution has a basis in objective facts that show there is a realistic likelihood he or she could be persecuted upon return to his or her country of origin.  Guevara-Flores v. INS, 786 F.2d 1242, 1249 (5th Cir. 1986).  The persecution must also be motivated by a protected characteristic. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). 

            A copy of the DHS brief can be found here.  For more information about asylum, withholding of removal, and other forms of humanitarian relief available to immigrants, contact the Immigration Attorneys of Garg & Associates in Houston, Westchase, Spring and The Woodlands, Texas.