By Attorneys Steven J. Malm and Nancy E. Miller
In a recent landmark decision, the Board of Immigration Appeals expanded the availability of asylum for victims of domestic abuse. Given the recent surge of such claims from Central America, the news comes at an apt time. Though the decision involves a woman from Guatemala, the decision has broad applicability. Domestic abuse-related asylum claims should be explored for persons of other nationalities. United States asylum law now clearly protects women, children (and men, potentially), fleeing domestic abuse in countries that are unable or unwilling to offer protection. For these people, asylum in the United States represents an escape from a seemingly endless cycle of trauma, paralysis and despair.
The decision reflects an evolution in asylum law. Traditionally, asylum has been imagined as a form of protection against governmental persecution or persecution at the hands of notorious groups—often rebels or terrorists. Plainly, under United States asylum law a person may also qualify as a refugee if his or her persecution occurs at the hands of a “private” actor the government is unwilling or unable to control. Yet, victims of domestic abuse often saw their cases denied. Immigration Judges would find that the abuse was criminal activity, not persecution. The challenge for asylum applicants and their advocates was and is to show that abuse by spouses or parents should be regarded as persecution as something that flourishes through the willful blind eye of the authorities, not mere isolated criminal activity. In a great victory for victims and their advocates, the Board’s decision acknowledges this reality.
A challenge faced by persons seeking asylum based on domestic abuse is establishing a social group to which they belong. Care needs to be taken here. Asylum applicants (and their attorneys) bear the burden of defining the social group. As arbitrary as it may seem, how the social group is defined can make the difference between a winning and losing asylum claim. In general, a social group is 1) composed of members sharing a common immutable characteristic, 2) defined with particularity, and 3) socially distinct within the society in question. Being of a certain gender and nationality alone will not likely qualify as a social group. Neither will a social group defined circularly by its persecution, ie. “Guatemalan women that face domestic abuse.” The Board found “married women in Guatemala who are unable to leave their relationship” to be a social group possessing sufficient immutability, particularity and social distinctness to potentially qualify for asylum protection.
Merely belonging to a domestic or gender-based social group is not enough to qualify for asylum protection. The applicant still bears the burden of showing that he or she has been subject to past persecution or has a well-founded fear of future persecution on account of this membership. Persecution is defined as threats or harm inflicted in an offensive manner. Though that definition appears to set the bar low, asylum has been denied to applicants where the level of harm suffered—including beatings—was deemed not serious enough. The inquiry into whether persecution has occurred is done on a case-by-case basis. In general, many applicants claiming asylum based on domestic abuse have suffered severe forms of threats and harm, with their persecutors enabled by an environment of impunity. Though what happened might well qualify as persecution, proving what happened is another challenge.
An applicant for asylum can establish eligibility through his or her testimony alone; however, corroboration from others who know what happened or who can testify to country conditions is always preferable. Inconsistencies in evidence can raise questions about the veracity of the entire claim; so can lack of detail. If the applicant establishes that he or she suffered past persecution, it is presumed that he or she will be persecuted upon returning home. However, this presumption can be attacked by showing that there has been a change in circumstances in the home country. It is then still possible to be granted “humanitarian” asylum based on the severity of the past persecution or if he or she would suffer other serious harm if returned.
The recent Board decision is neither limited to women from Guatemala, nor to women from Central America, nor to people arriving at the border. Domestic abuse is an ugly common reality for men, women and children all over the world. And because the victim finds it so hard to talk about, many of these claims have not been pursued. However, even if the abuse happened a long time ago, the victim may be eligible for asylum. Anyone who believes they may be affected by this recent expansion in asylum law should visit with a reputable, experienced attorney to explore a potential claim.