The Failure of United States Asylum Law: Women Fleeing Domestic Violence Sent Back to Their Persecutors

By Samantha Poon

Ms. Garcia is a young Honduran woman who went out for a night of dancing with her friends. There, she met a seemingly nice man and they soon after began dating. Eight months later, the nice man she met at a bar became her oppressor, her persecutor, her abuser. Ms. Garcia inadvertently began dating a drug dealer who beat, raped, electrocuted, and starved her. He locked her in his house, threatened to kill her, attempted to drown her, and brought her to the brink of death on multiple occasions. She was hospitalized multiple times from the physical and sexual abuse. When Ms. Garcia attempted to go to the police, they scoffed and told her that they refused to intervene in a relationship with a drug lord; her abuser had actually bribed the police to stay away. Finally, Ms. Garcia fled to the United States seeking asylum as a battered refugee. Unfortunately for Ms. Garcia and many other women in similar situations, asylum law in the United States did not favor her case. Her asylum claim was denied.

While the above plight of Ms. Garcia may be fictional, it is reflective of many asylum-seekers fleeing domestic violence. According to the World Health Organization, global domestic violence is pervasive: one in three women have faced physical or sexual violence in her lifetime. Ms. Garcia’s case is, tragically, quite common. Sometimes, the success of an asylum claim is truly the difference between freedom and a lifetime of abuse, between life and death.

(Image) Central and South American women attempt to extricate themselves from the vicious cycle of domestic violence by seeking asylum in the United States. Currently, the United States does not broadly recognize asylum protection for these women.

Why, then, does the United States deny the asylum claims of women fleeing domestic violence? It’s due to statutory technicality of sorts. The Immigration and Nationality Act (“INA”), which governs asylum law, defines a refugee as an individual who is from another country and “is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Victims of domestic violence are protected because of their “membership in a particular social group.”

No protected class designation is as heavily litigated as membership in a particular social group because of the vague intent of the class within the statue. Currently, the law arising from immigration courts and the corresponding appellate court, the Board of Immigration Appeals (“BIA”), does not broadly recognize women fleeing domestic violence as a “particular social group.” In a long-awaited case, Matter of A-R-C-G-, the BIA reasoned that “married women in Guatemala who are unable to leave a relationship” could constitute a cognizable particular social group. However, this is the only precedential case that truly recognizes women fleeing domestic violence as a valid particular social group.

Despite its relative significance, Matter of A-R-C-G- has serious limitations for women fleeing domestic violence. Primarily, the decision can be read extremely narrow to only include married women from Guatemala. This excludes women from virtually any other country. It excludes unmarried women, such as Ms. Garcia. This iteration of a particular social group excludes women who leave a violent relationship but are still stalked or otherwise harmed by their abusers. Immigration judges have held that these very factors distinguish cases from Matter of A-R-C-G- and have rejected such asylum claims based on domestic violence. Thus, Matter of A-R-C-G- opens the door to domestic violence-based claims, but does not permit passage for all who attempt to cross the threshold.

While the BIA is moving towards a more acceptable standard for women facing domestic violence, refugees like Ms. Garcia may remain unprotected under United States asylum law. The spirit of asylum law is aimed towards humanitarian relief. The BIA must move to conform its decisions to line up with this spirit and protect women fleeing tragic situations of domestic violence.