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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

A Victim Of Domestic Violence Is Granted Asylum

by David L. Cleveland

An Immigration Judge in Orlando, FL granted asylum to a woman from Honduras, who was beaten by her boyfriend. This 27-page opinion, dated May 6, 2008, is available at www.bibdaily.com.

Respondent testified that Mr. "X" placed a gun to her neck, and forced her to live with him on an isolated hill. X said he would shoot her father if she resisted. Respondent lived with X for 15 years, and bore him four children.

X beat respondent "nearly" every day. He broke her arm, raped her, hit her when she was pregnant, and "would often leave her alone for days without any food for the children." He knocked her unconscious, and threatened to cut her head off if she ran away. Respondent never told her parents about her suffering, until after she left Honduras. Neither she nor her parents ever contacted the police.

Some people in the nearby town knew about the abuse; however, no one ever contacted the police.

X kicked and hit respondent's sister, and "almost hit" respondent's father with a machete, states a letter from father.

Respondent was the only witness at her hearing. She introduced one letter from her daughters, one letter from her parents, a report from a psychologist [who opined that respondent had Post Traumatic Stress disorder and brain damage], along with country background materials.

RESPONDENT WAS DEEMED CREDIBLE BECAUSE SHE WAS CONSISTENT AND BECAUSE SHE DID NOT EMBELLISH HER CLAIM

The IJ ruled that respondent was credible, in part because she was consistent: her written application was consistent with her testimony on direct examination, which was consistent with her testimony on cross-examination. Matter of B-, 21 I&N Dec. 66, 70 (BIA 1995). Furthermore, she did not embellish; nor did she exaggerate.

BEING BEATEN FOR 15 YEARS RISES TO THE LEVEL OF PAST PERSECUTION

The IJ found that respondent had suffered "horrific physical and emotional abuse." [Opinion at page 11].

RESPONDENT WAS TARGETED BECAUSE OF HER MEMBERSHIP IN THIS PARTICULAR SOCIAL GROUP: "HONDURAN WOMEN IN INTIMATE RELATIONSHIPS WHO ARE UNABLE TO LEAVE THE RELATIONSHIPS."

The IJ determined that respondent belongs to a particular social group defined as "Honduran women in intimate relationships who are unable to leave the relationships." [Opinion at page 14].

Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) instructs that "membership in a particular social group" means an individual "is a member of a group of persons all of whom share a common, immutable characteristic…[such as] sex…"

Gender is an immutable characteristic. Some intimate relationships are immutable, if the victim "could not reasonably be expected to leave the relationship." [Opinion at page 13]

The leading case "to date" regarding domestic violence as a basis for asylum is Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated and remanded (A.G. 2001); 23 I&N Dec. 694 (A.G. 2005). On February 19, 2004, DHS filed a brief with the Attorney General, arguing that R-A- "had, in fact, established asylum eligibility on the basis of membership in a particular social group, specifically 'married women in Guatemala who are unable to leave the relationship.'" [Opinion at page 13]

Respondent's testimony indicates that X "targeted the Respondent because of their intimate relationship." [Opinion at page 14].

Country condition documents show that "60 percent of women in Honduras have been victims of domestic violence." Id. Violence against women is "widespread." Id.

The "perceptions of Honduran society make the Respondent's relationship with [X] immutable." [Opinion at page 15]. The people of the town knew that X abused respondent; however, no one ever reported it to the police. This indicates that "the town believed that the abuse constituted a domestic matter and not a police matter. Furthermore, as the Respondent never married [X] she cannot divorce him and thereby terminate the relationship legally…" Id.

X perceives Respondent "as belonging to him;" therefore, the relationship is immutable. Id. "The Respondent's status as a Honduran woman in an intimate relationship that she is unable to leave is a fundamental, immutable characteristic that is shared by other Honduran women in intimate relationships they cannot leave." [Opinion at page 16].

RESPONDENT'S TESTIMONY ESTABLISHES THAT X ABUSED RESPONDENT ON ACCOUNT OF HER STATUS AS A HONDURAN WOMAN IN AN INTIMATE RELATIONSHIP THAT SHE IS UNABLE TO LEAVE.

X did not make any direct statements as to why he abused Respondent. "Nonetheless, the Respondent's testimony and supporting documents establish that [X] abused the Respondent on account of her status as a Honduran woman in an intimate relationship that she is unable to leave." [Opinion at page 17].

X apparently believed he had the "right" to abuse Respondent because of their relationship. Also, he abused her "because he believed she could not leave the relationship." Id. These beliefs are supported by Honduran "legal institutions and cultural norms…abusers rarely face harsh punishments." [Opinion at page 18].

The Eleventh Circuit has ruled that in general, it is "fatal" to an asylum claim if the victim has not reported it to the police. Lopez v. U.S. Att'y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007). However, there is no need to report if the applicant "convincingly establishes that the authorities would have been unable or unwilling to protect her…" Id.

The evidence of record shows that "Honduras has a history of failing to protect victims of domestic violence." [Opinion at page 19]. Amnesty International reports that "three out of ten women in Honduras who submitted complaints were eventually killed by their attacker…" [Opinion at pages 20-21]

Internal relocation is not possible. Honduras "is a small country," slightly larger than Virginia. [Opinion at page 23]. X would find Respondent wherever she lived. Respondent is "mildly mentally retarded and has cognitive deficits consistent with brain injury." [Opinion at page 24]. Respondent's family ties would make it "extremely hard" for the Respondent to relocate. X could easily get information about Respondent from her children, siblings, and parents.

Congratulations to John Ovink, Esq., who argued the case. The DHS did not file an appeal.

COMMENTS OF THE AUTHOR

Other Immigration Judges might view the evidence differently, using these reasons:

X did not make any direct statements as to why he abused respondent. "Hard evidence of the required nexus [is] conspicuously absent." Flores-Coreas v. Mukasey, 2008 U.S. App. LEXIS 2403 (1st Cir. 2008). Perhaps X is just a mentally ill, vicious criminal acting out of "personal motives." Zoarab v. Mukasey, 524 F.3d 777 (6th Cir. 2008).

X is a gang of one. People who resist gangs do not constitute a "particular social group." Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008). Respondent was a female who happened to be "living in the area." Lopez-Soto v. Ashcroft, 383 F.3d 228, 233 (4th Cir. 2004). Young Albanian women who are forced into prostitution are not a particular social group. Rreshpia v. Gonzales, 420 F.3d 551, 556 (6th Cir. 2005).

"Honduran women in an intimate relationship that she is unable to leave" is too "amorphous," and these women lack "social visibility." Matter of S-E-G-, supra. Young Bambara women who oppose arranged marriage probably are not a particular social group. Matter of A-T-, 24 I&N Dec. 296 (BIA 2007). A woman not willing to go through a forced marriage, who was punched, called a "prostitute," and threatened with death was denied relief in Berishaj v. Gonzales, 2007 U.S. App. LEXIS 14949 (6th Cir. 2007).

The Orlando IJ did not mention any of the above cases; your IJ might. So, I suggest you read the above cases, and learn how to distinguish them.

A RECENT CASE THAT CAN BE HELPFUL

The respondent in the above case is also a member of this particular social group: "women who have escaped involuntary servitude after being abducted and confined." Gomez-Zuluaga v. Attorney General, 527 F.3d 330 (3rd Cir. 2008).

In Gomez, the applicant was a woman in Columbia who dated police officers, and who was a dental hygiene student. She was detained three times by a guerrilla group known as "FARC." During her first two detentions, FARC told her to stop dating officers. The IJ ruled that "women who date officers" is not a particular social group. The Third Circuit opined that the first two detentions, which lasted only three hours, did not rise to the level of persecution; therefore, it felt no need to opine on the merits of the particular social group claim.

The third detention lasted eight days. Applicant was blindfolded, and was told to finish her dental hygiene studies, and then to come work for FARC. The court held that this detention did constitute past persecution; however, FARC was not motivated by applicant's political opinion or any particular social group; FARC was "motivated by a desire to fill their ranks." Id. At 345.

The applicant escaped from her third detention, which angered FARC, resulting in death threats. Applicant argued she had a well-founded fear of future persecution, based on her "new" particular social group: "women who have escaped involuntary servitude after being abducted and confined by FARC."
The Third Circuit agreed. Id. At 348.

The IJ conflated the past and future "particular social group" claims. This was error. An asylum applicant has the "right to allege membership in different social groups depending on whether they are making a 'past persecution' claim or a 'well-founded fear of future persecution' claim." Id. At 340, note 6.

The motives of a persecutor may change over time. An applicant may be a member of different social groups at different times. Asylum lawyers should articulate such changes, and demand that the adjudicator rule separately on each claim.


About The Author

David L. Cleveland a staff attorney at Catholic Charities of Washington DC, was Chair of the AILA Asylum Committee from 2004-2005.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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