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Recognizing Asylum Claims Based on Domestic Violence

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In Matter of A-R-C-G-, the BIA recently found that “married women in Guatemala who are unable to leave their relationship” may constitute as a particular social group.  This is a landmark decision that will better assist in allowing women who have experienced domestic violence to achieve asylum in the United States.

The respondent is a mother of three and a native citizen of Guatemala. She entered the United States without inspection on December 25, 2005 and soon thereafter filed an application for asylum and withholding of removal.  The respondent fled Guatemala after suffering serious abuse at the hands of her husband for nearly a decade.  The abuse included weekly beatings resulting in broken bones, burnings, verbal threats, and rape.  The respondent repeatedly contacted the police who refused to assist her saying that they would not interfere in a marital relationship.  On one occasion the police came to her home after she had been beaten but her husband was not arrested.  After more than a decade of abuse the respondent fled for the United States.

The case was appealed to the BIA after an Immigration Judge found that while the respondent was credible, she did not demonstrate that she had suffered past persecution or had a well-founded fear of future persecution on account of her particular social group comprised of “married women in Guatemala who are unable to leave their relationship.” And that the respondent’s abuse was the result of criminal acts perpetrated arbitrarily rather than persecution.

The BIA first analyzed whether the respondent’s claimed group of “married women in Guatemala who are unable to leave their relationship” constituted a particular social group.  An applicant seeking asylum based on his or her membership in a particular social group must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.  The BIA declared that the respondent’s proposed group met all of the three requirements, but emphasized that whether a social group exists in any given case is a case-by-case analysis heavily dependent on the facts, evidence, and, documented country conditions.

First, “married women in Guatemala who are unable to leave their relationship” is composed of members who share the common immutable characteristic of gender.  Additionally, it was noted that marital status can also be an immutable characteristic where the individual is unable to leave the relationship.  Second, the proposed social group is defined with sufficient particularity as the terms used – ‘married,’ ‘women,’ and ‘unable to leave the relationship’ – have commonly accepted definitions within Guatemalan society based on societal expectations about gender and subordination as well as the police’s refusal to involve themselves with marital and domestic affairs.  Lastly, the proposed group is socially distinct within Guatemalan society as unrebuttable evidence was produced through country reports and official documents that establish Guatemala’s culture of ‘machismo and family violence.’  The evidence used to support these notions included State Department Country Reports as well as independent human rights reports concerning violence against women in Guatemala.

The BIA ultimately held that the harm experienced by the respondent rose to the level of past persecution, that “married women in Guatemala who are unable to leave their relationship” constituted a valid particular social group, and that there is adequate nexus between the abuse suffered and the particular social group.  The case was then remanded back to the Immigration Judge to address the respondent’s statutory eligibility for asylum in light of this decision, specifically focusing on whether the respondent adequately demonstrated that the Guatemalan Government was unwilling or unable to control the ‘private’ actor, or her husband.

That the BIA held that women fleeing domestic violence may constitute a particular social group is a step in a right direction to protect women fleeing repugnant violence at the hands of their spouse.  While many lawyers have argued that gender and gender related groups may constitute a particular social group, until now the BIA has not issued clear precedent on the issue nor recognized a protected group that primarily includes women.  However, the BIA expressly emphasized that whether a particular social group exists in a specific case relies extensively on the facts and evidence of each individual case.  It further stated that the use of documented country conditions, law enforcement statistics, expert witnesses, and other reliable and credible sources of information may be used to prove the existence of a particular social group.  The implications of this decision will undoubtedly positively impact women in immigration proceedings who are relying on domestic-violence asylum claims.

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