The Board of Immigration Appeals, the highest immigration court in the U.S. has has ruled that victims of severe domestic violence in their home countries may be eligible for asylum in the United States.
In reviewing the case of a battered woman from Guatemala the court held that Depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act,8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012).
While the decision marks a significant break through, the court’s ruling is NOT surprising since U.S. immigration law has been moving steadily in the direction of recognizing circumstances of spousal and domestic abuse as grounds for asylum claims. The Board of Immigration Appeals has now crystallized the law on this issue with its determination that battered women who are trapped in situations of abuse could be considered victims of persecution.
In a sense, the decision brings a measure of clarity to a contentious legal issue for which there has been great uncertainty and scepticism for close to two decades reaching back to 1995, when federal officials first tried to set guidelines for the immigration courts on whether domestic abuse victims could be considered for asylum. One of the murky issues has been whether domestic violence victims are members of a particular social group for purposes of asylum adjudication.
To establish a claim for asylum in the United States an alien needs to prove a “well-founded fear of persecution” based on race, nationality, religion, political opinion or “membership in a particular social group.” It has now been established that domestic violence victims may be a member of a particular social group.
The case involved the mother of the three minor,Aminta Cifuentes who is a native of Guatemala. Ms. Cifuentes married at age 17, and suffered repugnant abuse by her husband. This abuse included weekly beatings after the respondent had their first child. On one occasion, the respondent’s husband broke her nose. Another time, he threw paint thinner on her, which burned her breast. He raped her.
The court also found that Ms. Cifuentes contacted the police several times but was told that they would not interfere in a marital relationship. On one occasion, the police came to her home after her husband hit her on the head, but he was not arrested. Subsequently, he threatened the respondent with death if she called the police again. The respondent repeatedly tried to leave the relationship by staying with her father, but her husband found her and threatened to kill her if she did not return to him. Once she went to Guatemala City for about 3 months, but he followed her and convinced her to come home with promises that he would discontinue the abuse. The abuse continued when she returned.
Ms. Cifuentes fled from Guatemala in 2005 and subsequently applied for asylum and withholding of removal but her application was initially denied by the immigration court that heard her case. She appealed and ultimately prevailed on appeal.
While the Board of Immigration Appeals’ decision speaks specifically about women from Guatemala it is expected that similar claims could be raised by domestic violence victims from other countries. Victims would however, need to prove that they are trapped in the abusive situation and the government of their native country is unwilling or unable to take meaningful steps to remedy the situation.