Introduction
The Statue of Liberty, which has been called the “Mother
of Exiles,” stands as a reminder of one of the foundational ideals of U.S.
immigration policy-providing refuge to the vulnerable. Women worldwide have new
reason to believe in this promise, because victims of domestic violence may now
have a better chance of being granted asylum in a U.S. immigration court.
In the summer of 2009, the Obama Administration made
public a Department of Homeland Security (“DHS”) brief submitted in the case of
a Mexican woman who requested asylum based on the fear she would be killed by
her former domestic partner if she returned to Mexico. The government’s brief
in the case, the Matter of L-R-,[1] proposed new legal justifications for
granting battered women asylum, but stopped short of advocating a full grant of
protected status.
In December 2009, a U.S. immigration court granted asylum
to a Guatemalan woman, Rody Alvarado, who suffered ten years of abuse from her
husband in her native country. Ms. Alvarado’s case, the Matter of R-A-, had been in limbo for more than fourteen years. She
was initially granted asylum in 1996, but the Board of Immigration Appeals
(“BIA”) overturned that decision three years later, finding that battered women
were not a cognizable social group under the legal definition of refugee.[2]
While these two recent developments are extremely
encouraging for women’s rights advocates, the U.S. government has yet to
finalize the legal rules governing asylum claims for victims of gender-based
violence. This essay endorses a specific legal regime, based on the arguments
made in the Matter of L-R- and Matter of R-A-, and relevant
international treaties governing asylum, and argues that deserving women should
receive asylum protection in the United States.
Is She a Refugee?
The international legal community has long debated whether
battered women could be considered refugees. According to the 1951 United
Nations Convention Related to the Status of Refugees, as amended by a 1967 Protocol,
a refugee is:
A person who owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail himself
of the protection of that country; or who, not having a nationality and being
outside the country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it
. . . .
This international definition is incorporated into U.S.
law, with minor changes, via the Immigration and Nationality Act.[3] The definition contains three core elements: a persecution ground-race,
religion, nationality, membership of a particular social group, or political
opinion; a nexus between the ground and the persecution suffered; and a lack of
state protection. Because gender is not listed as a Convention ground, victims
of gender-based persecution do not meet the definition of refugee.
Nonetheless, groups not enumerated in this definition
often claim refugee status under the amorphous “membership of a particular
social group” ground. According to the United Nations High Commissioner for Refugees
a “particular social group” is:
[A] group of persons who share a common characteristic
other than the risk of being persecuted, or who are perceived as a group by
society. The characteristic will often be one that is innate, unchangeable, or
which is otherwise fundamental to identity, conscience or the exercise of one’s
human rights.[4]
This definition contains two important characterizations
of a particular social group: immutability-members of the group share a trait
that is innate; and social perception-society views members of the group as
such.
The legal maxim ejusdem
generis supports the first, immutability view. According to this rule,
general words in a statute should be interpreted in light of more specific
words, or general terms should be interpreted as being consistent with
enumerated items. The other Convention grounds are either immutable-race and
nationality-or traits so fundamental that a person should not be required to
change them-religion or political opinion. Therefore, if people share immutable
characteristics, they can be said to form a particular social group.
The social perception test has been adopted and
articulated by the Australian High Court in Applicant
S v. Minister for Immigration and Multicultural Affairs:
First, the group must be identifiable by a
characteristic or attribute common to all members of the group. Secondly, the
characteristic or attribute common to all members cannot be the shared fear of
persecution. Thirdly, the possession of that characteristic or attribute must
distinguish the group from society at large.[5]
In the United States, both immutability and social
perception tests have been used to identify valid “particular social groups.”
In the case Matter of Acosta, the BIA
found the doctrine of ejusdem generis “to be most helpful in construing the phrase ‘particular social group.’ “[6] In Matter of C-A- the BIA declared
that it would consider the “recognizability, i.e. the social visibility, of the
group in question.”[7]
But even if victims of domestic violence can satisfy the
first element of this test, they must also face the problem of establishing a
causal link between the grounds for persecution and the persecution suffered.
This nexus is established when the persecutor is motivated by the cognizable
ground in inflicting the harm.[8] “Women who suffer domestic violence in country X” would be an impermissibly
circular social group. Battered women don’t suffer persecution because they are
battered women-rather, the group is defined by a type of persecution. Furthermore,
the particular social group “women in country X” would be too large. The word
“particular” connotes a group that is certainly smaller than half the
population.
Recent Changes to U.S. Asylum Law
In April 2009, DHS submitted a brief to the BIA in the Matter of L-R-, opening the door for
battered women to be considered refugees under the “particular social group” category,
in a way that mitigates the circularity and particularity problems. According
to the brief, “DHS accepts that in some cases a victim of domestic violence may
be a member of a cognizable particular social group and may be able to show
that her abuse was or would be persecution on account of such membership.”[9]
DHS argued that the particular social group for victims of
domestic violence could be formulated by taking into account the way in which
the abuser and society perceive their position in a domestic relationship. Accordingly,
a group could be “Mexican women in domestic relationships who are unable to
leave” or “Mexican women who are viewed as property by virtue of their
positions within a domestic relationship.”
Following the public release of the DHS brief, Ms.
Alvarado filed a brief arguing that she was a member of the social group
“married women in Guatemala who are unable to leave the relationship,” similar
in construction to the group, “Mexican women in domestic relationships who are
unable to leave.” In October 2009, DHS responded that Ms. Alvarado was
“eligible for asylum and merits a grant of asylum as a matter of discretion.” Two
months later, the immigration court issued a summary decision, granting Ms. Alvarado
asylum.[10]
DHS outlined in its brief the legal justification for the
particular social group “married women in Guatemala who are unable to leave the
relationship.” The social group is “broadly defined by gender, by marital
status, her inability to leave the relationship, or by Guatemalan nationality.”[11] DHS argued that the applicant’s marital status is immutable because it is an
integral part of one’s religious and moral identity. And “even accepting the
premise that one should be required to change marital status to avoid
persecution, there may be circumstances in which it would be impossible to do
so, such that the characteristic would be immutable for that reason.”
Particular Social Group for Battered Women: A Final Rule
Although the grant of asylum for Ms. Alvarado is a welcome
development, a final rule governing grants of asylum for victims of domestic
violence should adopt the second category suggested by DHS, rather than the
first: “Mexican women who are viewed as property by virtue of their positions
within a domestic relationship.” This formulation better meets the immutability
and social perception tests that govern grants of asylum under the current case
law. Moreover, it is more likely to cover women deserving of international
protection.
The particular social group “married women in Guatemala
who are unable to leave the relationship” is not a coherent grouping for
several reasons. First, the premise is self-contradictory-obviously the woman
was able to leave the relationship because she is in a new country seeking
asylum. Second, the reason for the persecution is unlikely to be that she
cannot leave the relationship. More often it is that the persecutor has certain
views of women. The fact that a woman cannot easily leave her marriage may make
it easier for her husband to persecute her, but her inability to leave is not the
core reason for the persecution. Third, it requires a negative view of marriage
in certain countries, as a male-dominated patriarchal institution. In fact, the
problem of domestic violence is not inherently tied to the institution of
marriage, but rather to the views of women held by men that they enter intimate
relationships with. Finally, many women who suffer from domestic violence are
not married, so relying on marital status to fulfill an immutability
requirement will exclude many women deserving of asylum.
The second formulation proposed in Matter of L-R- avoids many of the pitfalls of the category accepted
in Matter of R-A-. A final rule could follow the pattern:
“Mexican women who are viewed as property by virtue of their positions within a
domestic relationship,” which requires that an asylum seeker fall into each of the
four categories-nationality, sex or gender, social situation, and social perception.
The persecutor could be any private individual, such as a domestic partner or husband.
This second formulation is a rational social group for
several reasons. First, the characteristic of gender is more immutable than the
characteristic of being in a relationship or a marriage. This is because it is
almost impossible to change gender, while it is indeed possible to leave a
relationship, and in fact the applicant often will have left one already if she
is applying for asylum in the United States. Second, the formulation correctly
captures the reason for the persecution-that a woman is viewed as a piece of
property or that there is some hatred towards women in the mind of the
persecutor. Finally, the social situation is one that is common to the
immutable group-being in a domestic relationship-but doesn’t impose any value
judgment on that relationship in and of itself. Therefore “women who are in
domestic relationships” would not form a cognizable group. But “women who are
in domestic relationships and viewed as subordinate by their partners” would. The
proposed grouping is not circular, because merely being viewed as subordinate would
not meet the criteria of persecution. Rather, the persecution would have to
include some form of domestic violence, motivated by membership in the
particular social group, which is exactly what the Refugee Convention calls
for.
Conclusion
Women’s rights advocates have reason to be hopeful, because
U.S. immigration courts appear more open to accepting asylum claims from
battered women. At the same time, the current Administration must move forward
in establishing a broad decision or set of guidelines for these cases. The
final rule put forward by the government should reflect the social reality
women face in their home country, and cover women most in need of international
protection.
Jillian Blake is a J.D. Candidate in the class of 2011 at the University of Michigan Law School. This essay is her winning entry in the Michigan Law Review First Impressions Essay Competition 2010.
Suggested citation: Jillian Blake, Commentary, Welcoming Women: Recent Changes in U.S. Asylum Law, 108 Mich. L. Rev. First Impressions 71 (2010), http://www.michiganlawreview.org/assets/fi/108/blake.pdf.
[1]. Brief of Dep’t of Homeland
Security (April 13, 2009) (redacted) [hereinafter DHS Brief], available at http://cgrs.uchastings.edu/pdfs/Redacted%20DHS%20brief%20on%20PSG.pdf.
[2]. Matter of R-A-, 22 I. & N.
Dec. 906 (B.I.A. 1999).
[3]. 8 U.S.C. § 1101(a)(42).
[4]. United Nations High
Commissioner for Refugees, Guidelines on International Protection, “Membership
of a particular social group,” HCR/GIP/02/02 (May 7, 2002), available at http://www.unhcr.org/3d58de2da.html.
[5]. (2004) 217 C.L.R. 387 (Austl.).
[6]. 19 I. & N. Dec. 211, 211
(B.I.A. 1985).
[7]. 23 I. & N. Dec. 951, 958
(B.I.A. 2006).
[8]. INS v. Elias-Zacarias, 502
U.S. 478, 482-83 (1992).
[9]. DHS Brief, at 12.
[10]. Center for Gender &
Refugee Studies, Documents and Information on Rody Alvarado’s Claim for Asylum
in the U.S., http://cgrs.uchastings.edu/campaigns/alvarado.php.
[11]. Department of Homeland
Security’s Position on Respondent’s Eligibility for Relief at 27, In re Rody Alvarado-Pena, File No. A 73
753 922, available at http://cgrs.uchastings.edu/documents/legal/dhs_brief_ra.pdf.