Update: On June 11, 2018, Attorney General Jeff Sessions issued a decision purporting to overturn Matter of A-R-C-G referenced below, stating that: “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.”
When can domestic violence form the basis of a successful asylum claim? A New York City immigration judge recently granted asylum to one of our pro bono clients who was found to have suffered past persecution on account of her membership in a particular social group—that of “Honduran women in a common law marriage who are unable to leave the relationship.” This result is consistent with recent authority establishing that an asylum claim can, depending on the particular facts and circumstances, be grounded upon the inability to leave an abusive domestic relationship.
A successful asylum applicant must meet the definition of a “refugee” under the Immigration and Nationality Act of 1965, and show that he or she merits a favorable exercise of discretion. This entails establishing by a preponderance of the evidence that, among other things, the applicant has suffered past persecution or has a well-founded fear of future persecution in his or her country of nationality on account of one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion.
An asylum application based on the inability to leave an abusive relationship focuses on past persecution suffered on account of one’s “membership in a particular social group.” In 2014, the Board of Immigration Appeals (BIA) in Matter of A-R-C-G recognized “married women in Guatemala who are unable to leave their relationship” as a particular social group because the group was composed of members who share a common immutable characteristic (gender), was defined with particularity, and was socially distinct within Guatemalan society.
In so doing, the BIA rejected the immigration judge’s findings that the respondent’s abuse was the result of “criminal acts, not persecution,” that were perpetrated “arbitrarily” and “without reason.” The BIA noted, “it is significant that the respondent sought protection from her spouse’s abuse and that the police refused to assist her because they would not interfere in a marital relationship.” As a published BIA decision, A-R-C-G- is binding on immigration courts and the divisions of the Department of Homeland Security responsible for enforcing the nation’s immigration laws.
The principles of A-R-C-G- have been extended to women who are unmarried but equally unable to leave abusive relationships. In early 2016, the BIA recognized in an unpublished decision that Honduran “women who cannot leave a relationship” constitute a social group. The BIA opined that it was “clearly erroneous” to find that the applicant, a Honduran woman, was able to leave her relationship where her partner regularly threatened and terrorized her even though they lived apart. Members of the particular social group shared the common immutable characteristic of gender, and the group was found to be both defined with particularity as well as socially distinct within Honduran society based on submitted country conditions evidence. In its decision, the BIA cited Honduran country conditions documentation that “domestic violence remains a widespread problem and women are reluctant to lodge a complaint.”
Unpublished BIA decisions are not binding precedent, and case outcomes continue to differ based on a variety of factors, including country conditions and the applicant’s own experience. But membership in the particular social group of “women who cannot leave a relationship” is an increasingly accepted basis for asylum applications. For example, in Fuentes-Erazo v. Sessions, the Eighth Circuit recognized that “Honduran women in domestic relationships who are unable to leave their relationships” could be a legitimate social group, although the court found that the applicant in that case was not a member of that group.