Individuals Who Suffered Domestic Vilolence Abroad May Seek Asylum Based on the Abuse

Individuals who have been victims of domestic violence in their home country may seek asylum in the United States based on this abuse. A much-publicized case decided in 1999 in which a woman was denied asylum based on domestic violence-related persecution has been overturned recently by Janet Reno in one of her final acts as Attorney General. Reno also ordered the Board of Immigration Appeals (BIA) to reconsider the case in light of new regulations created by the Department of Justice that provide new guidelines within which gender-related asylum claims should be considered.

Matter of R-A-, Int. Dec. 3403 (BIA 1999), is the controversial case that may soon allow individuals who have suffered or fear domestic violence in their home country to seek asylum in the United States. This case involved a Guatemalan woman, R-A-, who sought asylum because she had been severely abused by her husband in a Guatemalan society that condones a man’s domination over and domestic abuse of his wife. She fled Guatemala to escape this abuse, and feared she would be at risk of continuing violence if she returned there.

Under current law, asylum applicants must demonstrate that they were persecuted or fear persecution because of their race, religion, nationality, political opinion, or membership in a particular social group. Asylum law did not recognize persecution based solely on gender, but the court has recognized that some forms of persecution are uniquely experienced by women, including female genital mutilation and forced abortion. In her asylum claim, R-A- argued that her husband abused her because of her political opinion (refusal to accept male domination) and membership in a particular social group (“Guatemalan women who have been involved intimately with male companions, who believe that women are to live under male domination.”) The BIA agreed that R-A- was severely abused by her husband and that the Guatemalan government was unwilling or unable to protect her. However, the BIA held that, for various legal reasons, R-A- was not persecuted by her husband because of her actual or imputed political opinion or membership in a social group.

Reacting in part to this decision, the INS proposed regulations on evaluating gender- and domestic violence-based asylum claims. These guidelines recognize the difficulty of establishing a universal model for persecution claims based on domestic violence because a victim’s asylum argument will vary upon the social context of her country. These general applicable principles will allow for a case-by-case adjudication of claims based on domestic violence or other serious harm inflicted by non-governmental individuals.

However, these regulations have not been implemented because President Bush, upon taking office, signed an act delaying any regulations that had not yet taken effect, including those related to Matter of R-A-. Immigrant rights advocates hope that these regulations will be implemented promptly, and allow the BIA to recognize R-A’s asylum claim based on her experiences as an abused spouse.