Domestic violence asylum after Matter of L.R.

AuthorMarsden, Jessica
Position2009 Board of Immigration Appeals decision

NOTE CONTENTS INTRODUCTION I. DOMESTIC VIOLENCE IS "ASYLUM-WORTHY" A. The Refugee Convention and "Particular Social Group" B. Domestic Violence as Human Rights Violation C. Misconceiving Domestic Violence as "Private" Punishment II. TODAY'S UNSTABLE FOUNDATION FOR DOMESTIC VIOLENCE-BASED ASYLUM A. Rejecting "Women" as a Particular Social Group B. A Brief History of Domestic Violence Asylum III. THE 2009 DHS FRAMEWORK A. Doctrinal Requirements 1. Social Visibility/Social Distinction 2. Particularity 3. Circularity B. Inconsistent Adjudications C. No Permanent Protection IV. PROPOSAL FOR REGULATORY REFORM A. Why Use Rulemaking? B. The Proposed Regulation C. The Rulemaking Mechanism D. Effects on Domestic Violence Asylum Claims E. A Flood of Refugees? CONCLUSION INTRODUCTION

If there is a popular conception of an asylum-seeker, it might be Victor Laszlo, the fictional fugitive leader of the anti-Nazi Resistance who escaped on a late-night flight to freedom in the movie Casablanca. (1) A more modern example is Chen Guangcheng, the blind Chinese "barefoot lawyer" who was smuggled into the U.S. embassy in Beijing in a diplomatic car chase. (2) But far more common are asylum-seekers like "Angela," a client of the Immigration Legal Services Clinic at Yale. (3) Pressured to marry when she was only sixteen, Angela endured more than ten years of marriage to a man who repeatedly raped and beat her. On at least two occasions, local police refused to intervene or protect her. When her husband began to threaten to kill her, Angela realized that she had to escape to save her life. She fled her home in Central America and traveled overland to the U.S.-Mexico border, where U.S. Border Patrol agents arrested her. Eventually, a government official at the detention center realized that she had a "credible fear" of persecution and might be eligible for asylum.

Angela took many risks when she decided to leave her home: crossing multiple borders without a passport; spending nights vulnerable to assault by male guides; and riding a raft across the Rio Grande. But she likely did not realize one of the biggest risks she took: applying for asylum as a domestic violence victim. The odds of this particular form of "refugee roulette" vary wildly from jurisdiction to jurisdiction, immigration judge to immigration judge, and asylum officer to asylum officer. (4) As one practitioner describes it, whether a woman fleeing domestic violence will receive protection in the United States seems to depend not on the consistent application of objective principles, but rather on the view of her individual judge, often untethered to any legal principles at all." (5) Perhaps because Angela's story does not resemble that of Victor Laszlo or Chen Guangcheng--she fled a violent spouse, not a repressive government, and snuck across the border rather than being welcomed with open arms--asylum adjudicators have struggled to fit her experience into the "typical" asylum narrative.

While supportive of domestic violence asylum in principle, this Note critiques the legal framework currently relied on by adjudicators who grant asylum to victims of domestic violence. That framework has no legal support in Board of Immigration Appeals (BIA) or federal court opinions, and, in fact, is inconsistent with some of the binding decisions of those courts. Instead, I propose a regulatory reform to make clear that domestic violence occurs "on account of" gender and that severe domestic violence can be the basis for an asylum grant. Unlike another recent proposal regarding domestic violence asylum, (6) I argue that creative arguments based on existing law will not overcome the innate hostility of some adjudicators to this type of claim. Instead, the law itself must be changed to clear away existing adverse precedent and put domestic violence asylum claims on solid legal ground.

In Part I of the Note, I offer a normative account of why domestic violence victims should be granted asylum as victims of human rights violations that occur "on account of' their gender. In Part II, I describe the current status of the law on domestic violence asylum and gender-based asylum claims generally. In Part III, I argue that the legal framework proposed by the Department of Homeland Security (DHS) in 2009 has failed to provide for consistent adjudications of gender-based claims and may be contrary to existing BIA and circuit court precedent on the requirements for "particular social group" asylum claims. Finally, in Part IV, I offer a proposal for regulatory reform to put asylum claims based on domestic violence on a firmer legal footing. I argue that such a regulation would provide for more consistent adjudication of such asylum claims without resulting in a "flood" of new asylees to the United States.

As an initial matter, I discuss gender-based violence in which a woman is persecuted on account of her gender, not necessarily in gender-specific ways. Gender-specific violence includes "rape, sexual violence, forced abortion, compulsory sterilization, and forced pregnancy." (7) These harms, while devastating, are not necessarily perpetrated because of the victim's gender. (8) For instance, rape may be used as "punishment" for a woman's political beliefs that have nothing to do with her gender. Where gender-specific harm occurs on account of a protected ground, adjudicators since the 1990s have generally accepted it as the basis for a successful asylum claim. (9) In contrast, gender-based violence, in particular domestic violence, has faced much greater resistance from both administrative agencies and courts. (10)

  1. DOMESTIC VIOLENCE IS "ASYLUM-WORTHY"

    The key obstacle to asylum for domestic violence victims has been the perception that domestic violence is not the "type" of persecution whose victims the asylum system is intended to protect. But in this Part, I argue that the history of modern asylum law shows that its protections were meant to apply broadly, including to harms only recently recognized as human rights violations. I then note that both feminist theory and empirical studies suggest that domestic violence is best understood as a form of human rights violation that is perpetrated against women because they are women. Finally, I show that the hostility to domestic violence asylum claims stems from two fundamental misunderstandings of the nature of domestic violence: that domestic violence is private rather than "public" harm, and that it occurs for reasons other than the victim's gender. Once we reject these misunderstandings, it becomes clear that our Refugee Convention obligations not only allow but in fact require that we extend asylum protections to qualifying victims of domestic violence.

    1. The Refugee Convention and "Particular Social Group"

      The underlying goals of the asylum system are twofold: (1) the protection of an individual's right to core aspects of identity and human dignity; and (2) the rejection of states' efforts to use violence to enforce status hierarchies drawn along those lines. The 1951 Refugee Convention and its 2967 Protocol name four specific aspects of identity that are protected: race, religion, nationality and political opinion. (11) But the drafters of the Convention also recognized that no list could possibly encompass all of the reasons for which a deserving asylee might be persecuted. A fifth protected ground, "membership in a particular social group," encompasses the many distinct groups that could be targeted, typically by a government, for persecution. (12) The drafters may have been thinking specifically of the victims of persecution in newly socialist states, such as "landowners, capitalist class members, independent business people, the middle class and their families." (13) But the language of the Convention itself is broad, suggesting that the drafters did not intend to limit its protection to groups that it knew were subject to persecution in 1951.

      Interpreting courts agree that the "particular social group" ground is not limited to those groups that were being persecuted in 1951. The seminal case in this area is the BIA decision in Matter of Acosta, (14) which is widely cited by both U.S. and foreign courts. The BIA observed that the other four grounds for asylum each "describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed." (15) Applying ejusdem generis, it concluded that a cognizable particular social group must also be defined by a shared "immutable" characteristic. (16) This characteristic need not be literally immutable; if the characteristic is "fundamental to [the group members'] individual identities or consciences," that will also be a sufficient basis for a particular social group. (17) This standard "preserve[s] the concept that refuge is restricted to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution." (18)

      Other countries and the Office of the United Nations High Commissioner for Refugees (UNHCR) have also accepted the Acosta immutability standard for "particular social group." In Canada v. Ward, the Supreme Court of Canada observed that "[t]he dominant view ... is that refugee law ought to concern itself with actions which deny human dignity in any key way." (19) Accordingly, no matter which of the five protected grounds forms the legal basis for an asylum claim, the appropriate standard for granting refugee status is "the sustained or systemic denial of core human rights." (20) A particular social group will not be recognized where the group is "defined by a characteristic which is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights." (21) The UNHCR likewise endorses an interpretation...

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