Applying for Political Asylum Based On Domestic Violence

In order to be eligible for political asylum, the applicant must prove that she has been persecuted by the government as a result of her membership in one of the following five enumerated groups:

(1) race,
(2) religion,
(3) nationality,
(4) political beliefs or
(5) membership in a particular social group.

The applicant can also show that she has suffered persecution because of race, religion, nationality, political beliefs or membership in a particular social group from someone other than the government but that the government is unable or unwilling to protect her.

Many applicants have claimed that they were entitled to political asylum because they were victims of domestic violence. The Immigration & Naturalization Service and the Board of Immigration Appeals have repeatedly said that being a victim of domestic violence is not membership in a particular social group for purposes of domestic violence. (Matter of R-A-). Based on certain recent cases, it appears that the government may be rethinking that position. In the unpublished case of Matter of S-A-, the BIA granted asylum to a young woman who had suffered frequent physical abuse at the hands of her father because she did not agree with his strict Muslim religious beliefs. Although the BIA based their grant upon the grounds of religious persecution, the abuse that the woman suffered was undeniably that of domestic violence. Therefore, if the victim of domestic violence can ascribe the cause of the violence to race, religion, nationality or political beliefs, she may be able to obtain political asylum in the United States.

In another case, Matter of S-B-, the woman claimed that she had been physically and psychologically beaten and abused by her husband for 15 years. She also claimed that the government in could or would not protect her because her husband was politically connected and because the authorities tolerated domestic violence. The Immigration Judge granted her political asylum based upon her membership in a particular social group. The INS District Counsel appealed the decision because of a fear that the decision would “open the floodgates on gender-based asylum cases”. However, the INS General Counsel reviewed the case and determined, in November of 1999, that the appeal should be withdrawn.

In Matter of Juan, the BIA upheld the Immigration Judge’s grant of political asylum to a young victim of domestic violence. The BIA found that the young boy merited asylum on the basis of his membership in the social group of minors without resources who have been abused by a custodial parent or guardian.

These cases show that the Immigration Court and the BIA are beginning to look differently at cases of domestic violence. They are beginning to recognize that the victims of domestic violence are members of a social group who are persecuted and victimized for that reason only. Because the law is just starting to change, it is very important that cases be documented thoroughly and that the testimony be very strong. It is also important that the developments in the law be pointed out to the Immigration Judge or the asylum officer. Therefore, it is essential that victims of domestic violence be represented by attorneys who are experienced Immigration Law specialists so that the best case possible can be presented in this developing area of the law.