Stefanie Gonzalez
Attorney General Jeff Sessions expressly overruled a critical precedential decision regarding domestic violence asylum claims in his June 11, 2018 decision, Matter of A-B-. The loss of a favorable precedential decision will certainly present challenges, but the Matter of A-B- decision does not categorically deny all domestic or gang violence related asylum claims.
A History of Domestic Violence Based Asylum Claims
In 1996, a case came before the Board of Immigration Appeals (“BIA” or “Board”) involving a woman from Togo who was forced into marriage with a much older man and was soon to be forced to undergo female genital mutilation (“FGM”), a common practice in her tribe. She fled to the U.S. and was ultimately granted asylum by the BIA, which held she had a well-founded fear of persecution based on her membership in the particular social group “young women of the Tchamba-Kunsuntu Tribe who have not had FGM.” See Matter of Kasinga, 21 I. & N. Dec. 357, 358 (BIA 1996). The case came to be known widely as the first precedential decision establishing gender-based persecution as grounds for asylum in the U.S.
Then, in 2008, Rody Alvarado was granted asylum after a grueling 14-year battle within the immigration court system. She endured over a decade of brutal violence by her husband; the Guatemalan government providing no protection. She fled to the U.S. and applied for asylum. Though her case was procedurally odd, undergoing several remands and a vacatur from then Attorney General Janet Reno, the Department of Homeland Security (“DHS”) ultimately stipulated that Ms. Alvarado was indeed eligible for asylum. See Matter of R-A-, 24 I. & N. Dec. 629 (BIA 2008). See also Matter of A-R-C-G-, 26 I. & N. Dec. 388, 391 n.12 (BIA 2014). In its brief, the DHS suggested a cognizable social group for Ms. Alvarado could be “married women in Guatemala who are unable to leave the relationship.” See Dep’t of Homeland Sec.’s Position on Respondent’s Eligibility for Relief at 15, R-A-, 23 I. & N. Dec. 694 (A.G. 2005).
In the years following, immigration attorneys continued to bring domestic violence-based asylum claims before judges and the BIA. In its 2009 brief for Matter of L-R-, the DHS expressly stated that domestic violence can, in certain circumstances, be a valid basis for an asylum claim. Dep’t of Homeland Sec.’s Supplemental Brief, Matter of L-R-, (Apr. 13, 2009). Though it was not until Matter of A-R-C-G- in 2014 that the BIA issued a binding, precedential decision solidifying domestic violence as a valid basis for asylum claims. Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014). The holding of A-R-C-G- is narrow in scope, finding “married women in Guatemala who are unable to leave their relationship” a cognizable particular social group for purposes of obtaining asylum. Id. at 389. Despite the narrow holding, the case has opened the door for many similar particular social groups for asylum seekers fleeing domestic violence.
Background of Matter of A-B-
AB is a woman from El Salvador who suffered over 15 years of abuse by her husband. He was physically abusive, kicking her and beating her, even while she was pregnant. He repeatedly threatened to kill her. Ms. AB attempted to seek help from Salvadoran law enforcement, but was unsuccessful, having them tell her on one occasion, if she had any dignity, she would leave him. See Center for Gender & Refugee Studies, Backgrounder and Briefing on Matter of A-B-, Univ. of Cal. Hastings Coll. of the Law (last visited June 30, 2018). When she did attempt to leave her husband, he tracked her down, raped her, and threatened to kill her. Leaving her three children in the care of a family member, she fled to the U.S. to seek protection. Id.
Her case was originally heard by Immigration Judge (“IJ”) Couch in Charlotte, North Carolina, an IJ notorious for using boilerplate language in his decisions denying asylum for survivors of domestic violence. See Tal Kopan, Judge in case Sessions picked for immigrant domestic violence asylum review issued ‘clearly erroneous’ decisions, says appellate court, CNN (Apr. 18, 2018, 9:44AM). IJ Couch denied her claim and she appealed to the BIA. After finding that Ms. AB did merit asylum, the BIA reversed and remanded the case to the IJ. While the case was pending before the IJ, the Attorney General certified the case to himself for review. Recognizing the potential broad reaching implications of this decision, 11 organizations filed amicus briefs in support of Ms. AB.
What the Matter of A-B- Decision Does
The Attorney General’s decision reversed the BIA’s grant of asylum to Ms. AB. While further litigation is pending she remains separated from her three children, whom she cannot petition to join her in the U.S. Additionally, the decision expressly overrules Matter of A-R-C-G-, stating, “Because [Matter of A-R-C-G-] recognized a new particular social group without correctly applying [the] standards, I overrule that case and any other Board precedent to the extent those other decisions are inconsistent with the legal conclusions set forth in this opinion.” Matter of A-B-, 27 I. & N. Dec. 316, 317 (A.G. 2018).
More troubling than the holding, however, is what the Attorney General states throughout the opinion in dicta. If relied upon by adjudicators, his statements could seriously hinder practitioner’s abilities to bring successful domestic violence-based asylum claims. For example, the Attorney General states, “An applicant seeking to establish persecution based on violent conduct of a private actor must show more than difficulty . . . controlling private behavior . . . [they] must show . . . complete helplessness to protect the victims.” Id. at 337. (internal quotations and citations omitted). However, the Immigration and Nationality Act, the collection of U.S. laws governing immigration matters, expressly states that the foreign government must only be “unable or unwilling” to protect the applicant. See 8 C.F.R. § 1208.13 (2018). The Attorney General has blatantly attempted to heighten the existing standard for those fleeing domestic violence.
The Attorney General employs a similar tactic when analyzing nexus, which must be shown to demonstrate that the asylum applicant was persecuted “on account of” a protected ground. In this case, Ms. AB’s protected ground was her membership in the particular social group, “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” See A-B-, 27 I. & N. Dec. at 321. He states repeatedly that the respondent in A-R-C-G- was targeted for personal reasons, not because of membership in a particular social group. Id. at 338–39. This analysis of the social group completely ignores the societal and cultural factors that perpetuate domestic violence. It is well documented that domestic violence in Latin America is so widespread in part because of the view that women are subordinate to men. See Tamar Diana Wilson, Violence against Women in Latin America, 41 Latin Am. Perspectives, Jan.–Feb. 2014, at 3, 3–18. But the Attorney General ignores this context in his analysis of A-R-C-G- and Ms. AB’s claim, and chalks it up to merely “private violence” Id. at 340.
Perhaps most frightening, the Attorney General plainly states, “Generally, claims by [noncitizens] pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Id. at 320. This language may be seen by adjudicators as free reign to deny meritorious asylum claims.
The case reverses Ms. AB’s grant of asylum and overrules A-R-C-G-, stating that A-R-C-G- was wrongly decided due to the manner in which the BIA came to its decision, claiming the BIA’s analysis in the case “lacked rigor and broke with the Board’s own precedents.” Id. at 333. However, it does not significantly alter existing asylum standards nor does it foreclose domestic violence based asylum claims altogether.
It remains to be seen how practitioners will craft their arguments considering the loss of the A-R-C-G- decision. However, the door is not shut for asylum seekers fleeing gender based violence. It will take dedicated, creative lawyering to continue to advocate for domestic violence survivors seeking asylum.