Asylum for Battered Women and Beyond

Recently, advocates for asylum seekers fleeing severe and state-sanctioned domestic violence in their home countries appeared to score a significant victory. In the case of a woman who requested asylum based on fears she would be murdered by her common-law husband in Mexico, the Department of Homeland Security filed a brief in April (unsealed recently as reported by the New York Times here) revealing Obama administration support for the proposition that battered women asylum applicants may be eligible for resettlement in the United States.  (As recently as last year, DHS under the Bush administration had argued in the same case that domestic violence victims could not meet the standards of American asylum law.)

So this represents the latest change in position for the executive branch, which has vacillated for over a decade on this issue in grappling with the case of a Guatemalan domestic violence asylee, Rodi Alvarado. Ms. Alvarado endured ten years of brutal beatings at the hands of her Guatemalan soldier husband. Among other things, he raped and sodomized her on a regular basis; kicked her genitalia, causing profuse and sustained bleeding; pistol-whipped her; and violently kicked her in the spine when she refused to abort their fetus. Despite repeated requests, the government and the courts refused to protect her. She tried to escape within Guatamala but her husband found her and practically beat her to death. In 1995, to save her life, she fled to the United States. And the following year a San Francisco immigration judge granted her asylum. But the Board of Immigration Appeals reversed the decision in 1999 and ordered Ms. Alvarado’s deportation to Guatemala.

As a result of the Alvarado decision (Matter of R-A-), women fleeing a wide range of gender-based human rights violations were denied asylum. Desperate victims of sexual trafficking, gang rape, and domestic violence could find no safe haven in the United States. In January 2001, at the very end of the Clinton administration, Attorney General Janet Reno overturned the BIA’s ruling and ordered it to adopt a new decision after the issuance of regulations on the subject of gender asylum. Those regulations were never finalized by the Bush administration, which made noises (via AG John Ashcroft) about deporting Ms. Alvarado but never got around to doing it (although in September 2008 AG Michael Mukasey ordered BIA to reconsider the case, removing the requirement that it await the issuance of regulations). And so the case remained in a state of limbo (and, for all these years, Ms. Alvarado has been without her children whom she had to leave behind).

The BIA’s grounds for overturning the immigration judge in 1999 had to do, in large part, with the issue of whether Ms. Alvarado was persecuted “on account” of belonging to a protected class of persons and how that protected class should be defined. The 1951 Geneva Convention relating to the Status of Refugees contains the internationally accepted definition of a refugee. An almost identical definition of refugee is adopted by United States immigration law (as codified in the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A)) — a person outside his or her country of origin “who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” For victims of domestic violence, against which a government is either unwilling or unable to provide protection, the most relevant category seems to be persecution on account of “membership in a particular social group,” the least fleshed-out of the five grounds within the refugee definition (although Ms. Alvarado had also argued that her husband persecuted her on the basis of her political opinion that women are not subordinate to men but the BIA found the husband had not persecuted her on account of that.)

Focusing on “social group,” the BIA held in Matter of R-A- that abused women could not be part of any social group that would be eligible under those terms. In particular, it found that the past harm defining the social group cannot be the same harm that the applicant claimed as persecution – this type of circular reasoning, the BIA opined, does not suffice to articulate a particular social group. Rather, in order for persecution to be “on account of” membership in such a group, the past experience must exist independently of the persecution. Moreover, in any event, it concluded that Alvarado’s husband did not seek to harm her “on account” of her membership in the claimed particular social group – i.e., Guatemalan women who have been intimately involved with Guatemalan male companions, who believe that women are to live under male domination (even though this formulation of “social group” does not appear to have the violence embedded within it).

Fast-forward to April and the filing of the DHS brief. In that document, the government acknowledged the BIA’s “circular reasoning” rationale:

Important decisions issued by the Board and the circuit courts since 2001 have held that a particular social group cannot be significantly defined by the persecution suffered or feared . . . To allow such circularity in defining a particular social group – individuals are targeted for persecution because they belong to a group of individuals who are targeted for persecution – would not be true to the refugee definition in U.S. law and the treaties on which it is based . . . There may be other closely related conceptualizations, however, that would not suffer from this flaw and could possibly fit the facts of cases of the general type presented here.

The brief noted that the applicant’s description of her group – “Mexican women in an abusive domestic relationship who are unable to leave” – was impermissibly circular (given that the “abuse” is the basis for the description of the group and the ground of persecution). However, the brief then went on to propose two alternative formulations that could work: (1) Mexican women in domestic relationships who are unable to leave”; or (2) “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.”

Assuming the BIA would accept DHS’s proposed formulations of “social group,” it would still need to determine whether the applicant were eligible for asylum. Although there is not a definitive test governing the grant of asylum in domestic violence cases, the DHS brief suggested that a battered woman applicant might be eligible if she could demonstrate certain criteria, including impossibility of avoiding future persecution by relocation within the applicant’s home country and an unwillingness or inability by the state to protect the applicant.

The DHS brief is a good start but it is not enough. For one thing, the brief makes clear that not all victims of domestic violence who nominally satisfy the above criteria will qualify for asylum under the proposed new guidelines. In fact, DHS argued that the Mexican applicant’s case should be reheard despite evidence that the father of her children had repeatedly raped and beaten her and that local police had refused to protect her (the brief noted that the applicant had only demonstrated government indifference in “one small town” – ignoring the fact that local officials were likely her only practical means of redress).

Moreover, DHS was only making an argument – it acknowledged in the brief that the BIA may not accept its proposed formulations of “social group” or the other criteria suggested for finding battered-woman asylum eligibility. That is not acceptable. Instead, we need a concentrated, coordinated effort by the executive branch to promulgate clear regulations that will assure asylum for women who can reasonably satisfy the proposed criteria (for example, as in the case of the Mexican applicant here, exhausting local remedies for seeking protection ought to be sufficient).

And those long-awaited regulations should go beyond domestic violence. Many obstacles remain for victims who seek asylum as the result of gender-based human rights violations such as sexual trafficking, rape, and female genital mutilation. As the United Nations High Commissioner for Refugees (UNHCR) has stated:

There is no doubt that rape and other forms of gender-related violence, such as dowry-related violence, female genital mutilation, domestic violence, and trafficking, are acts which inflict severe pain and suffering–both mental and physical–and which have been used as forms of persecution, whether perpetrated by State or private actors.

The DHS brief may very well augur an eventual significant American policy shift. But we must not be satisfied with mere indications of possible reform. It is high time that United States law and practice provide consistent, effective and meaningful protection to women seeking refuge from gender-based human rights abuses.