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INS Proposed Rule Suggests That Good Asylum Claim Can Arise From Gender-Based Domestic Violence
by Carl R. Baldwin

A decision made in June 1999 by the Board of Immigration Appeals, the body that reviews decisions of immigration judges, came as a shock to many students and practitioners of asylum law. The decision, called Matter of R-A-, denied asylum to a Guatemalan woman who had been brutalized by her husband over a long period of time. She attempted to flee from him within Guatemala, but he always tracked her down and subjected her to greater and more serious mistreatment. Her reports of the abuse to the authorities were to no avail. A court there said that it would not interfere with a domestic dispute.

The victim finally fled to the United States and applied for asylum. An immigration judge granted the application, but the Board of Immigration Appeals (Board) overturned the decision. While expressing "great sympathy" for the applicant, the Board stated that its duty was only to determine "eligibility for relief under our refugee and asylum laws."

Several commentators have pointed out that the Board missed an opportunity to find that the applicant was being punished for having a "political opinion," one of the grounds for refugee status. They suggest that that category could be sensibly broadened to include "the significance of resisting or attempting to resist domestic violence as a contrary opinion." And they believe that it would have been correct to view the applicant as the "member of a particular social group," another refugee category, as the battered spouse of an abusive husband who was given a completely free hand by his society and his government.

The proposed INS rule was published in the Federal Register on December 7, 2000. The following passages in the rule go directly to some of the issues present in Matter of R-A, and strongly suggest that a different result could, in the future, be issued. The Supplementary Information states: "Though applicable to all asylum and withholding cases, these principles are also designed to provide guidance for the resolution of novel issues in some of the asylum and withholding claims that the department has encountered in recent years. One of these novel issues is the extent to which victims of domestic violence may have been persecuted under the asylum laws. The Board considered and rejected such a persecution claim in Matter of R-A-.

This proposed rule removes certain barriers that the R-A- decision seem to pose to claims that domestic violence, against which a government is either unwilling or unable to provide protection, rises to the level of persecution of a person on account of membership in a particular social group." The Matter of R-A- case has been appealed to the Ninth Circuit Court of Appeals. One hopes that this court will ponder the inequities of the Board decision, study the INS proposed rules, and grant asylum to the abused Guatemalan woman applicant.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be rached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from