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Uncertainty Over Gender-Based Asylum Claims
by Andrés Benach from the offices of Cyrus D. Mehta

The past month has seen some stunning reversals of law regarding the viability of gender-based asylum claims. In the past month, the Justice has issued regulations overruling the decision of the Board of Immigration Appeals’ decision in Matter of R-A-. In this case, the Board of Immigration Appeals upheld an Immigration Judge’s determination that a Guatemalan woman was not entitled to asylum. Her claim had been based upon domestic abuse she had suffered at the hands of her husband. The claim was set against the backdrop that Guatemalan society, at the very least, tolerates a man’s domestic abuse of his wife. Since asylum law does not recognize persecution solely based upon gender, R-A- had applied for asylum under two grounds, political opinion and membership in a particular social group. Her claim based upon political opinion stated that her refusal to accept male domination was a political opinion protected under asylum law. Her social group claim was defined as "women intimately involved with male companions, who believe that women are to live under male domination." The Board of Immigration Appeals agreed with the INS that there was no evidence that R-A- was persecuted because of these factors. The Board’s analysis in the social group theory was particularly troubling as it seemed to rely upon an inquiry into whether or not the persecutor, in this case, R-A-‘s husband has done this to others. Of course, in domestic violence cases, the persecutor usually only focuses on one person, his wife, and rarely abuses other women. A rule requiring a showing of individualized danger to others would have been impossible to sustain.

This was the landscape of gender-based asylum cases in December 2000, when the Justice Department issued new regulations clarifying certain issues raised by Matter of R-A-. In essence, the Department overruled the Board and returned gender-based asylum analysis back to what it was before Matter of R-A-. In regulations issued December 7, 2000, the Department clarified what constitutes a particular social group. The Department created a list of criteria to evaluate in determining social group. The new regulations take much of the guesswork out of defining a particular social group. In addition, the regulations allow adjudicators to take societal attitudes about the group into account. Finally, in her last day in office, Attorney General Janet Reno vacated the Board’s decision in Matter of R-A- and told the Board to reconsider her case in light of the new regulations.

The champagne had not yet worn off when the new Bush administration threw cold water in the face of immigrant advocates. President Bush’s first act was to sign an order delaying any regulations that had not yet taken effect. This order has delayed any implementation of the R-A- regulations. Accordingly, it seems that R-A- remains the law for now. These regulations, are not, however, forgotten, and immigrant advocates are certain that when the Bush administration reviews them, they will be implemented promptly. We will keep you updated.


About The Author

Andrés Benach is an Associate in the Law Offices of Cyrus D. Mehta. He received his J.D. with honors from George Washington Law School in 1998 and his B.A. from Boston College. He is a member of AILA and a member of its New York Media Outreach Committee. As a law student, he worked at the Office of the Deputy Attorney General in the U.S. Department of Justice on immigration matters.

Cyrus Mehta, a graduate of Cambrdige University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities, and may be contacted at 212-686-1581 or info@cyrusmehta.com. His website is www.cyrumsmehta.com



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