Immigration authorities and courts have long struggled with whether or not victims of domestic and gang-based violence should qualify for asylum. One of the most difficult barriers for victims is establishing that they meet one of the five protected grounds for asylum, particularly membership in a “particular social group,” which has become considerably harder with the changing political climate under the Trump administration. In June 2018, Matter of A-B- overruled the precedential decision of Matter of A-R-C-G-, holding that women could no longer apply for asylum by claiming they were victims of “private criminal activity that constitutes persecution on account of membership in a particular social group,” thus calling into question the viability of domestic and gang-based violence asylum claims.
Since August 26, 2014, immigration lawyers relied heavily on Matter of A-R-C-G- to establish that women fleeing domestic violence could be eligible for asylum. Matter of A-R-C-G- was the first case where the Board of Immigration Appeals declared “married women . . . who are unable to leave their relationship,” to be a cognizable particular social group. This landmark asylum decision arose after a Guatemalan woman, who endured physical and sexual spousal abuse for years, fled Guatemala and filed an asylum application, effectively demonstrating that her husband harmed her on the basis of her gender and status as a wife. As a result, other domestic violence victims were able to seek asylum by pointing to evidence that mirrored the evidence cited in Matter of A-R-C-G-. However, on June 11, 2018, Attorney General Jeff Sessions overruled Matter of A-R-C-G- with Matter of A-B- by establishing that an asylum claim cannot be granted on “the mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime.” The Attorney General applied the same standard from Matter of A-R-C-G- requiring that “persecution arises on account of membership in a protected group,” but held that women who were victims of domestic violence no longer qualify broadly as a protected group. The particular social group “must exist independently of the harm asserted in an application for asylum,” as opposed to their inability to leave being defined or created by the harm. In Matter of A-B-, the respondent had claimed she was eligible for asylum because of her membership in the particular social group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.”
The right to seek and enjoy asylum is affirmed in Article 14(2) of the Universal Declaration of Human Rights and the United States government has ensured that this right is given effect at the national level by adhering to the 1951 Convention Relating to the Status of Refugees (“1951 Convention”) by virtue of the 1967 Protocol Relating to the Status of Refugees and approving The United States Refugee Act of 1980 amendment to the Immigration and Nationality Act, which defines “refugees” under the same guidelines as the 1951 Convention. The United States has also used the United Nations Office of the High Commissioner for Refugees definition for “particular social group” and uses case law to decide what circumstances apply on a case-by-case basis. However, since the United States has not ratified other international human rights treaties, like the United Nations Convention on the Elimination of All Forms of Discrimination against Women, which states that “aggravated or cumulative forms of discrimination against women may amount to persecution in the sense of the 1951 Convention,” the international obligation to interpret the definition of a “refugee” in a light more favorable to women’s issues has yet to become binding.
On the other hand, the United States has ratified the United Nations Convention Against Torture (“CAT”). Victims of domestic violence or gang-related violence must establish that it is more likely than not that they would be tortured if they were to be returned to their country of removal. If they meet the threshold, then the United States is obligated to withhold or defer removal to the country from which they came. One challenge to this approach is that the government must be involved in order for CAT to apply, and while mere acquiescence might count, a person seeking asylum must demonstrate that the government chose to ignore the fact that someone else tried to torture or kill that person. Furthermore, it can be difficult to apply CAT if countries have proactively introduced measures to address domestic violence by ratifying international human rights treaties and passing domestic legislation with the aim to offer remedies to confront the issue.
The Attorney General’s decision in Matter of A-B- “close[s] the door on domestic violence and gang-based asylum claims by those fleeing persecution from ‘private actors’,” which means victims should not cite or rely on Matter of A-R-C-G- anymore since claims in that case will not find support in Matter of A-B-. While cases on gender-based asylum should still be brought forward to push for a change in practice, practitioners should explore other forms of “particular social groups” and try to rely on claims based on the other protected groups of race, religion, nationality, and political opinion. However, the United States government will likely “be forced to address the issue of ‘gender alone’-based particular social group claims.” Additionally, the Attorney General’s decision stated that persecution by a nongovernmental entity met the standard for asylum “so long as the government was ‘unable or unwilling’ to prevent such persecution.” Within dicta, he seemingly heightened this burden by suggesting that asylum seekers must now demonstrate that their governments “condoned the behavior or demonstrated a complete helplessness to protect the victim” rather than just showing that the government had difficulty controlling the private actor.
Under Matter of A-B-, victims can no longer expect to be granted asylum by relying on domestic violence and gang-based claims as stated in Matter of A-R-C-G-. While it is debated whether this is in violation of international human rights law standards, the situation could improve if more international human rights treaties are ratified by the United States, incorporated into domestic law, and applied effectively. For now, victims should focus their claims on other protected groups rather than particular social groups, even while still bringing those gender-based claims forward. Ultimately, immigration judges may shift again to accepting domestic violence and gang-based asylum claims if and when the political climate changes and they choose to interpret the law in a different manner.