Obama Beckons Domestic Violence Victims
by Syed H. Imam
Protection of victims of abuse has been a marginal part of remedial immigration law for years. Since the enactment of the Violence Against Women Act of 1994, domestic violence victims married to US citizens or permanent residents have had some legal protection under the law. A few years ago the government established the U-visa which permitted undocumented abused women to get a temporary work permit and eventually a green card. In a recent development, however, the Obama administration has carved out a narrow but clear path to asylum status for victims of domestic violence. The new legal brief filed in April after 13 years of tangled court arguments involved a Mexican woman, who had been severely beaten and repeatedly raped by her husband. Although the government submitted its legal brief in April, the woman, known by her initials L.R, only recently gave her consent for the case documents to be disclosed to media. The filing reverses government's stance under former President George W. Bush. Earlier, under the Clinton administration, Attorney General Janet Reno proposed regulations to clarify the asylum law on this score, but these regulations never took effect. Attorneys for the Department of Homeland Security hinted in 2004 at the potential for asylum for victims of domestic violence, but it too was never put into practice in immigration court.
According to Purvi Shah, Executive Director of Sakhi for South Asian Women, a New York community organization fighting violence against women from South Asia, this change is a major departure from previous immigration law. Although the government has not issued any new rules in its rejoinder to the appeal, its lawyer has agreed that asylum can be extended to women suffering from marital rape and violence.
However, it is not easy to qualify for this new category of asylum. According to the Obama administration's court filing, foreign women who experience abuse would have to prove that their abusers treat them as subordinates and as personal chattel. They would also have to show that abuse is widely accepted in their country. In addition, they would need to demonstrate that they are unable to find protection from their countries' institutions, such as the police or courts, and that they are unable to relocate elsewhere in their country, also known as internal flight. Matt Chandler, a Department of Homeland Security spokesperson, said, "Although each case is highly fact-dependent and requires scrutiny of the specific threat an applicant faces, the department continues to view domestic violence as a possible basis for asylum in the United States".
The legal debate has been whether victims of domestic violence can be subsumed under a rather ill defined category in asylum law "particular social group" in order to qualify under one or more of five distinct bases of treatment as eligible asylum claimants. The position of previous administrations was that conceding that women constitute a 'social group' would allow sanctioning an illogical, circular "nexus" construct; individuals are targeted for persecution because they belong to a group of individuals who are targeted for persecution. They define a particular social group to include, inter alia, 'a group of persons who share a common characteristic other than their risk of being persecuted' (" persecution PLUS") Islam v. Secretary of State for the Home Department, and Regina v. Immigration Appeal Tribunal, ex parte Shah (1999 ) 2 A.C 629, 640 (House of Lords) (Lord Steyn noting that relying on persecution to prove the existence of the group would involve circular reasoning). Attorney General Mukasey had argued as recently as last year that the Mexican woman L.R and others like her could not meet the standards of U.S. asylum law in as much that they do not constitute a recognizable, distinct, visible "particular social group".
Applicants for U.S. asylum or refugee status need to show a well-founded fear of persecution based on race, religion, nationality, political opinion or "membership in a particular social group." In the light of Attorney General's decision In the Matter of R-A, 24 I&A, Dec., 629 ( A.G 2008) the Board of Immigration's (BIA) focus remained whether women were members of a particular social group within the meaning of the Immigration and Nationality Act, and can otherwise establish an eligibility for a claim for asylum. Administration's position remained that asylum and withholding of removal of women in the domestic violence settings raised difficult issues and difficult challenges as reflected in delay over thirteen years in producing either regulations or an authoritative precedent governing the issue. Important decisions issued by the BIA and the circuit courts since 2001 have held that a particular social group cannot be significantly defined by persecution suffered or feared and on this point, it was claimed, that the Guidelines of United Nations High Commissioner of Refugees (UNHCR) were in agreement. To allow circularity, it was argued, in defining a particular social group-individuals as targeted for persecution because they belong to a group of individuals who are targeted for persecution, would not be true to the refugee definition in US law and the treaties on which it was based: the refugee definition recognizes not all persecutions but persecutions based on one or more of the five specified grounds.
Of the five protected grounds, "particular social group" is perhaps the least well defined and understood. In fact, it has never been conclusively defined. Samuel Alito, as a circuit court judge, observed in Fatin v. INS, 12 F 3d. 1233 1238-39 (3rd Cir. 1993), "Both courts and commentators have struggled to define 'particular social group'. Read in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a "particular social group". Thus the statutory language standing alone is not very instructive…Nor is there any clear evidence of legislative intent."
The seminal definition of "particular social group", according to Bush administration lawyers, remained as in Matter of Acosta 19 I&A Dec. 211 232 (BIA 1985), modified by Matter of Mogharrabi, 19 I&A Dec. 439 (1987), in which the Board stated that it deems the phrase 'persecution on account of membership in a social group' to mean persecution, that is directed towards an individual who is a member of a group of persons all of whom share immutable characteristics. The particular kind of group characteristics that would qualify under this construction would be case fact dependent. However whatever the characteristic that would define the group, it must be that the members of the group either cannot change or should not be required to change because it is fundamental to their identities or consciences.
Subsequent to Acosta, Justice Department emphasized, the BIA had identified two additional important considerations applicable to particular social group claims. In Matter of C-A I&N Dec. 951 (BIA 2006), affd., In Matter of Castillo Areas v. U.S Atty. General, 443 F.3d 1190, 1197 (11th Cir. 2006) the Board clarified Acosta that not all groups sharing "immutable shared characteristics" are cognizable as particular social groups. In addition to its "immutable shared characteristic" approach, observed the BIA, its prior cases had also had considered 'recognizability, i.e. social visibility of the group in question. Social groups based on innate characteristic such as sex or family relationships are generally easily recognizable and understood by others to constitute a social group. Thus the BIA rejected a social group composed of informants, noting 'when considering the visibility of groups of confidential informants, the very nature of conduct at issue is such that it is generally out of public view'. Building upon these concepts of immutability and visibility in the Matter of S-E-G 24 I&N Dec. 579, 584 (BIA 2008), the BIA explained, that particular social groups also necessarily have 'particularity'. The particularity of essence is whether the groups can be described in a manner sufficiently distinct that the group would be recognized as a discreet class of persons in the society in question. The 'key question is whether the proposed definition is sufficiently distinct and particular or amorphous…to create a benchmark for determining the group membership'. In elucidating these requirements the BIA and the circuit courts since 2001 have emphasized that a particular group cannot be defined by the persecution suffered or feared.
The Obama Administration has refused to follow the policy of rejecting 'gender-based' asylum claims simply because of the conceptual ambiguity of what constitutes "a particular social group". Asylum claims related to women are often referred to as "gender-based" asylum claims and include any type of persecution that is inflicted on women solely due to their gender. Gender-based asylum claims include rape, forced abortion, and domestic violence. Generally, gender-based asylum claims rely on the theories of membership in a social group or political opinion that are found in the definition of a refugee. According to the view in this administration, U.S. law recognizes persecution due to gender-related abuse as a basis of asylum deriving from international standards. International standards include the United Nations Declaration, the United Nations High Commissioner of Refugee Standards, and the Convention on the Elimination of All Forms of Discrimination Against Women, as well as gender-related persecution guidelines adopted in Canada in 1993. The recent legal filing in case of A. L by the present Administration's lawyers, thus, sidesteps the debate of whether violence stricken women constitute a particular social group because they are persecuted or fear persecution or whether they are persecuted because they belong to a gender (a group). The circularity argument, which has been the hallmark of most briefs filed by the government in litigating the domestic-violence-based asylum cases, has been put aside in favor of a peremptory norm recognizing the value of individual dignity, civilized norm and elevated benchmarking standards for surrogate protection. This almost borders on being political, in not the least pejorative sense of the word.
Obama's policy may require the US to judge the morals and cultures of other nations which may not sit well with its close allies such as Saudis, and other Middle Eastern nations. What, for instance, would be the State department's response to a stream of defections in the name of 'gender-based' women asylum seekers from one of these countries? The US has answered to a universal ideal of offering surrogate help to downtrodden women from all parts of the world.
Syed H. Imam is Director of South & Central Asia Democracy Project & Fellow at the Center for the Study of Democracy, School of Policy Studies, by courtesy. Earlier he taught US Constitutional and Private International law in Hamdard School of Law, Karachi. As a member of Hamdard University School of Law team he helped formulate the draft Anti Money Laundering Law in Pakistan. This work constituted a substantial contribution towards the formal draft of the AML as per Pakistan Assessment Mission Report (August 2003) of UN Global Program against Money Laundering. Terrorism and drugs, religion and democracy, public policy and law, particularly in South Asia, are included in his research interest. He holds a Master of Public Administration from John F. Kennedy School of Government, Harvard University and a Master of Laws in International Legal Studies, Law School, New York University. He also attended International Tax Program at Harvard Law School.
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