UPDATE ON ASYLUM LAW: NEW HOPE FOR VICTIMS OF
Sandra A. Grossman and María Mañón*
i. mEETing “ana”
One after noon not so long ago, we m et “Ana,” a young
woman from El Salvador. At the age of 1 4, Ana met and forme d
a “relationship ” with a 43-year-old man who would later become
the fathe r of her two daug hters. “He was nice in the beginning ,”
Ana reco unted, but then on e day he got jealous and beat her. In
fact, he beat her several time s that night. The beatings grew more
vicious, continuing for mor e than a deca de, and often occurring
in the p resence of their two young daugh ters. “You can never
leave me,” he would tell her, “you belong to me.”
Ana sou ght the help of local police and the courts, but
to no avail. Her family and friends knew of the abuse, but no on e
did anything to stop it. Ana knew she must leave or risk losing her
life and the lives of her children. Ana decided to make the l ong
and treach erous journey to the United States, and with our he lp,
recently applied for asylum before the U.S. Executive Ofﬁce of
Immigration Review (EO IR) based on fear of continue d perse-
cution and abuse if returned to El Salvador. Thanks to a re cent
change in policy by the Obama administration, Ana, and others
like he r, have a chance at obtaining asylum and rescuing them-
selves and thei r families from furthe r abuse.
ii. domESTic violEncE-Ba SEd aSylum claimS: oncE
hopElESS, now hopEful ?
Asylum is available to an alien physically present in the
U.S. who can establish him self/herself to be a refug ee accord-
ing to section 101(a)(42) of the Immigra tion and Nationality Act
(INA).1 To qualify as a refugee, an applicant fo r asylum must
show that h e or she has suffered persecution in the past or has a
well-founded fear of persecution in the future on account of at
least one of ﬁve protected grounds: race, religion, nationality,
membership i n a particular soc ial group, or polit ical opinion.2 A
request fo r asylum may be based on past p ersecution, as well as
a well-founded fe ar of future persecution. 3
The term “well-founded fear ” was deﬁned by the
Supreme Cour t as containing an objective and a subjective c om-
ponent referring to, respectively, th e known c ountry conditi ons
and the applican t’s own beliefs.4 A foreign national “p ossesses
a well-found ed fear of persecution if a reasonable per son in her
circumstances would fear persecu tion if she were to be returne d
to her native country.”5 Quantitatively stated, an applicant ’s fear
is well-foun ded if there is as little as a 10 perc ent chance of the
feared event happening.6 Yet, practically speakin g, at least once
before an immigra tion judge, applicants are often forced prove
their cases beyond a shadow of a doubt.7 Asylum applic ants must
show that relo cation with in their own country is either not an
option or would not protect them from persecu tion.8 Finally, the
persecution m ust be by the government or by a persecutor which
the government is unwilling or unable to con trol.9
Domestic violence victims seekin g asylum in the U.S.
often assert their fear of persecu tion on a ccount of member-
ship in a so cial group. The Board of Immigration Appeals (BIA)
deﬁned this ground as per secution “ that is directed toward an
individual who is a member of a group of persons all of whom
share a common, immutable characteristic…tha t the members
of the group ei ther cannot change, or should not be required to
change becau se it is fundamental to their individual i dentities or
consciences.”10 Subseq uent BIA decisions further qualiﬁed the
deﬁnition of social grou p, requiring that “the group have particu-
lar and well-d eﬁned boundaries, and that it possess a r ecognized
level of so cial visibility.11 The “social visibility”12 and “particu-
larity” requirements further suppo rt the idea that to qualify for
asylum, victims must show they are persecuted because of an
immutable chara cteristic known to their pers ecutor.
Whether a battered woman may be a member of a cog-
nizable social group has bee n a sub ject of much contention, as
reﬂected in the Department of Homeland Security’s nine year
delay in producing regulations or an aut horitative precedent on
the issu e.13 In Matter of R-A-, ﬁrst heard i n 1996, the BIA ana-
lyzed an asylum claim involving a you ng woman from Gu ate-
mala, Rody Alvarado, who suffered hor riﬁc dome stic abuse at
the hands of h er husban d.14 Ms. Alvarado applied for asylum
on a ccount of her membersh ip in a particular social group and
political opinio n, speciﬁcally, “Guatemalan women who have
been involved intimately with Gua temalan male companions,
who believe that women are to live under male do mination.”15
In 1999 , the BIA denied Ms. Alvara do asylum, ﬁ nding she was
not a part of a cognizable soci al group an d that her persecution
was not on account of her political opinion.16 The BIA’s deci-
sion was subsequently reviewed by several attorney genera ls, and
recently came before the BIA fo r entry o f a new decision. This
time, lawyers for the Department of Homeland Security have
recommended asylum for this horribly a bused woman, vir tually
guaranteeing the entry of a grant of asylum.17
iii. dEfining ana’S Soci al gRoup: ThE KEy To a
SuccESSful aS ylum claim
The decision to recommend asylum i n Ms. Alvar ado’s
case came after the Depart ment laid out its new stance on domes-
tic v iolence based claims in a related case involvin g an abu sed
woman from Mexico, resp ondent in Matter of L -R-. In April of
2009, DHS, now under Secretary Janet Napolitano, acknowledged
the difﬁcult iss ues and challenges presented by the ap plication
of asylum in the dom estic violence c ontext18 and recom mended
remand in Matter of L-R -.19 More importantly for immigrat ion
law practitioners and advocate s, the brief provides a set of impor-
tant guidelines on what a successful domestic violence -based
claim might look like.20 For the ﬁrst ti me, the DHS’s bri ef opens
54 THE M ODER N AME RICA N
the door to the possibility that foreign d omestic violence victims
can qualify f or asylum in the United S tates.21
According to DHS, a par ticular social group based on
domestic vi olence “is best deﬁ ned in light of th e evidence about
how the respo ndent’s abuser and her society perceive her role
within t he domestic re lationship.”22 The key is identifying what
characteristi cs the persecutor targeted in choosing his victi m.23In
Ana’s case, for example, it may have been her youth,24 her gen-
der, her economic disadvantage, and the fact t hat she was unpro-
tected and vulnerable. Ana was 14 years old when she met her
abuser, who was both olde r and wealthier than she was, and even
though family and friends knew of the abuse, nobody did any-
thing to stop it.
According to DHS, an applicant’s status within a domes-
tic relationship is immutable where the applica nt is economica lly,
socially, or physically unable to leave the abusive relationship,
or where “the abuser would not recogni ze a divorce or se para-
tion as ending the abus er’s right to abuse the v ictim.”25 Ana, for
example, because of her age, he r ﬁnancial d ependence, and her
fear of retaliation, was unable to leave the a busive relationship.
Every time she tried to escape, her family would encourage her to
return to her abuser because he was her only means of ﬁnancial
support and security. Even whe n she tried to end the relat ionship
or relocate to a differe nt city, her abuser would ﬁnd her and forc e
her to resume the relationship.
“Visibility,” a nother r equirement for establishing asy-
lum bas ed on social group, may be demonstrated by submitting
evidence of countr y conditions related to the social perception
of domestic violence.26 It is n ot surprising that Ana’s family and
friends knew of the abuse, b ut did nothing to stop it, since 9 out
of 10 women in El Salvador have suffered from domestic vio-
lence.27 The fact tha t Salvadoran society is acceptin g of relation-
ships between older men and younger women, even in cases of
abuse, made Ana an easy target. Fina lly, acco rding to DHS, the
“particular ity” requireme nt in social g roup assessmen ts can be
met with the use of the term “domestic rel ationship,” since the
term itself suggests a certain level o f speciﬁcity.28
We are tasked with showing that Ana and other victims
of domestic violence were viewed and tre ated as proper ty by
their abusers , and that this behavior was deeme d socially accept-
able. Importantly, DHS warns against “c ircularity,” or deﬁni ng
the social group by the persecuti on suffered or feared.39 In other
words, practitioners should avoid deﬁning the par ticular soc ial
group as “targeted for persecution because they belong to a group
of individuals who are targeted for persecution.”30
iv. concl uSion: yES wE can!
Victims of abus e, like all other asyl um applicants, must
meet their h eavy burden of per suasion by providing testimony
and evidence documenting thei r statutory eli gibility for asyl um.
For Ana and others similar ly situa ted there is no denying that th e
road ahead remains difﬁcult and lo ng, and that the Unite d States
has not trad itionally accep ted domestic violence based asylum
claims, but careful and creative lawyering c ombined with a keen
understanding of the law relating to social group-based asylum
claims, may yet cha nge the landscape of what i s possible.
* Sandra Grossman is the founder and owner of Grossman Law, LLC, an
immigration law ﬁr m operating in Rockvill e, Maryland. She is an experienced
immigration li tigator, having successfully represe nted individuals in all asp ects
of immigration law before the immigration courts, Board of Immig ration
Appeals, and the federal district court s. Ms. Grossman is a gr aduate of the
Georgetown University Law Cent er and a member of the America n Immigra-
tions Lawyers Association. M aría Mañón is a graduat e of American University,
Washington College of Law and is currently an associate at Grossman Law, LLC
in Rockville, Ma ryland.
1 8 C.F.R. § 208(a) (2009).
2 8 C.F.R. § 208.13 (b)(1) (2009); see also, INS v. Elias Zacarias, 502 U.S. 478,
481 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987).
3 See Matter of Ch en, 20 I. & N. Dec. 16, 18 ( 1989) (“If an alien establi sh
that he has been persecuted in the past f or one of the ﬁve reasons l isted in the
statute, he is e ligible for a grant of as ylum. The likelihood of present or future
persecution then becomes relevant as to the exercis e of discretion, and asyl um
may be denied as a m atter of discretion if th ere is little likelihood o f present
4 Cardozo-Fonseca, 480 U.S. at 430.
5 Guevara Flores v. INS, 786 F.2d 1242, 1249 (5th Cir. 1986), cert. denied, 480
U.S. 930 (1987).
6 Cardozo-Fonseca, 480 U.S. at 431.
7 See also Matter of Dass, 20 I. & N. Dec. 120, (BIA 1989).
8 8 C.F.R. § 208.13(b)(1)(i)(B) (2009).
9 See, e.g., Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985).
10 Id. at 233.
11 Matter of S-E- G-, 24 I. & N. Dec. 579, 58 2 (BIA 2008) (citing Matte r of
A-M-E- & J-G-U-, 24 I. & N. Dec. 69 (BIA 200 7)).
12 Matter In Re C -A-, 23 I. & N. Dec. 951 (B IA 2006) (“former noncr iminal
informants working against the Cali drug c artel’ did not have the requisite s ocial
visibility to co nstitute a particular s ocial.”); see also, Matter of S-E-G- , 24 I. &
N. Dec. 579 at 584 ( “the proposed group, which consists of young Salvadorans
who have been subject t o recruitment efforts by c riminal gangs, but who have
refused to join for personal, religious, or moral reasons, fails the ‘social visibil-
ity’ test and does not q ualify as a particular social group.”).
13 See Brief of De p’t of Homeland Security at 4 (B.I.A. April 13, 2009), avail-
able at http://cgrs .uchastings.edu/ pdfs/Redacted%20 DHS%20brief%20o n%20
PSG.pdf [hereina fter DHS Brief].
14 See Matter of R-A-, 22 I. & N. Dec. 906 (BIA 1999).
16 Id. at 946.
17 See Response of Dep’t of Homeland Security to the Respondent’s Supplemen-
tal ﬁling of August 18, 2009, Matter of Rodi Alvarado-Pena, No. A073-753-922
(Dep’t of Justice Oct . 28, 2009)..
18 DHS Brief, supra note 13, at 4.
19 Id. at 29.
20 Id. at 4-5.
21 Id. at 11.
22 Id. at 14.
23 Id at 15.
24 Matter of S-E-G-, 24 I. & N, Dec. 579, 583-84 (BIA 2008) (questioning
whether “youth” is a n immutable characteristic, but acknowledging that “the
mutability of ag e is not within one’s control, and that if an individual has been
persecuted in th e past on account of age- described particular so cial group, or
faces such pers ecution at a time when that individual’s age places him within the
group, a claim for asylum may still be cogniz able.”).
25 DHS Brief, sup ra note 13, at 16.
26 Id. at 17.
27 U.N. Econ. & Soc. Counci l [ECOSOC], Comm’n on Hum an Rights, Inte-
gration of the Human Rights of Women and a Gender Perspe ctive: Violence
Against Women, Report of the S pecial Rapporteur on Violence Against Women,
Its Causes and C onsequences, U.N. Doc. E/CN.4/2005/72/Add.2 (December
20, 2004) (prepared by Yakin Er türk) at 10; see also, Unit ed States Department
of State, 2008 H uman Rights Report: El Salvador (Feb. 25 2009), available at
http://www.state.gov/g/drl/rls /hrrpt/2008/wha/11915 9.htm (last visited Octob er
5, 2009) ( “Violence against women, including dome stic violence, [is] a wid e-
spread and serio us problem.”).
28 DHS Brief, sup ra note 13 , at 19.
29 Id. at 6.
30 Id. at 10.
(from left to right ) Sandra A. Grossman—founder a nd owner of Grossman Law, LLC and contribu ting author to The Modern
American’s Fall 2009 Issue; Tatiana Miranda—Ed itor-in-Chief, The Modern America n; María Mañón—associate at Grossman
Law, LLC and contributing author to The Modern American’s Fall 2009 Issue; Cl audio Grossman—Dean, American University
Washington College of L aw; and Leslye E. Orloff—Vice President and Director, Immigrant Women Program, Legal Mo mentum
The Modern American Annual Symposium: Exploring the Marginalized
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