A first for domestic abuse victims seeking asylum in the U.S.

From the NYT:

The nation’s highest immigration court has found for the first time that women who are victims of severe domestic violence in their home countries can be eligible for asylum in the United States.

The decision on Tuesday by the Board of Immigration Appeals in the case of a battered wife from Guatemala resolved nearly two decades of hard-fought legal battles over whether such women could be considered victims of persecution. The ruling could slow the pace of deportations from the Southwest border, because it creates new legal grounds for women from Central America caught entering the country illegally in the surge this summer in their fight to remain here.

The board reached its decision after the Obama administration changed a longstanding position by the federal government and agreed that the woman, Aminta Cifuentes, could qualify for asylum.

4 thoughts on “A first for domestic abuse victims seeking asylum in the U.S.

  1. It’s a pretty good decision. A few points.

    First, I was glad (and not surprised) to see some of my friends and former colleagues at the Center For Gender and Refugee Studies at UC Hastings involved. Karen Musalo, the director of CGRS, has been a tireless advocate for people facing gender-based persecution for many years, and worked on the most important earlier case on this subject.

    Second, I was glad to see the court (and the lawyers) didn’t totally mess up the “particular social group” analysis. This part of US asylum law is a huge mess. Sometimes the proposed social groups are obviously artificial. This one, “Married women who are unable to leave their relationship”, is pretty good. Personally, I’d just make the category, “women”, and deal with issues of specificity while asking whether any particular woman in the country has a “well founded fear” of persecution or not, but at least the decision didn’t make a big mess of the analysis, which was a real worry. It will open things up for the future, not just for one case.

    Third, it shows how presidential elections matter. The first decision on this topic was decided under Clinton. It was vacated by the attorney general (as is allowed by statute) when Bush came to power, and no progress was possible during that time. But, that won’t happen now, and it seems extremely unlikely that the Obama administration will appeal, while the Bush administration (or the Romney administration) almost certainly would have. Whatever Obama’s faults, this is one more example of how people who claim there’s no difference between the parties are clearly short-sighted.

  2. Puzzled- it’s easy to be puzzled about asylum law! And, it’s hard to give a very full answer to your question in a blog comment. Here’s something that might help a bit:

    1. Being subject to domestic violence (or any sort of harm) isn’t enough for someone to be granted asylum, even if the harm is very bad. The harm must be “persecution”, and for that to be the case in the sense relevant for asylum law, it must be “on the basis of” a “protected ground”- race, nationality, religion, political opinion, or ‘membership in a particular social group’. It’s the last one that’s important for this case.

    2. For a case of domestic violence to give rise to an asylum claim, then, a necessary (but not sufficient) condition is that the violence take place _because_ the person subject to it is a ‘member of a particular social group’. (This need not be the only cause, of course, but it has to be a “but for” cause.) Here the particular social group was “Married women who are unable to leave their relationship” (there is also an implicit geographical limitation here, I’m sure- it applies in a particular context.) The idea, then, is that if the applicant had not been in this social group, she would not have been subjected to this sort of domestic violence.

    3. “particular social groups” have lots of rules on their determination. Many of these are bad, and designed only so that not many people fall in to them, for fear of “opening the flood-gates.” This isn’t a legitimate reason w/in asylum law (though it may have some legitimacy w/in broader political considerations. I’m modestly skeptical of this claim, though.) Importantly, the “group” must actually be a group- it can’t be something like “The spouse of X”. So, if X suffers domestic violence because she or he is the spouse of Y, who is a very violent person, but not any other reasons, this won’t suffice for an asylum claim. One important part of the social group analysis is that the trait picked out has to be (in US law, as well as Canadian, I think) on that the person “cannot or should not have to change”.

    4. Men (or some further specification, similar to that done in this case) could, on this analysis, conceivably be a “particular social group”, but it doesn’t seem very likely in fact. Even though domestic violence is perpetrated against men, I think it’s very much less often the case that this is _because_ they are men, in the relevant sense, as opposed to because of more personal reasons. So, these cases are less likely to give rise to an asylum claim.

    5. Domestic violence asylum claims are further complicated by the fact that they involve non-state actors. When non-state actors are involved, additional things must be shown. These include that the state cannot or will not protect the person in question from the dangerous non-state actors, and that the person at risk cannot avoid risk by relocating internally within the state in question. While both of these factors could apply to men as well as women, in actual cases they seem to much more clearly and more often apply to women.

    6. Finally, for domestic violence to rise to the level that would ground an asylum claim, it has to be pretty serious- both significant and on-going. (This is related to, but distinct from, non-state actor issues, I think.) It can’t be occasional or one-off. This, too, seems _more likely_ to be the case when the violence is, at least in part, not due to “personal issues”, but because of membership in a particular social group, where again, that is more likely, it seems to me, to apply to women then to me, though of course there is nothing necessary about this.

    In conclusion, then, there is nothing a priori to rule out an asylum claim based on domestic violence towards a man, though in fact it seems fairly unlikely to meet the requirements set out above. Because I have defended a suitable interpretation of these requirements in print, I’m willing to say that, while certain cases of domestic violence against women (but not all) seem to plausibly give rise to asylum claims to me, I expect that, in practice, very few, if any, against men would, though we’d have to see the details of the particular claim to know for sure.

  3. Thanks for your very informative reply. My question was a moral one, rather than a legal one, though – although I recognise that such issues are often hard to disentangle when one is asking a question about why the law is framed thus and so.

    But so far as I can see, the primary part of your answer that might directly and solely address the moral question is where you say:

    “Even though domestic violence is perpetrated against men, I think it’s very much less often the case that this is _because_ they are men, in the relevant sense, as opposed to because of more personal reasons.”

    I’m sorry, but I don’t follow – what’s the “relevant sense”?

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