In a recent decision, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA held that “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group (“PSG”) for purposes of asylum. The decision is significant because it marks the first time that the Board has published a decision essentially endorsing asylum for victims of domestic violence. Applicants who seek asylum under this standard will still need to prove that the level of harm they face constitutes persecution, that they cannot relocate somewhere else within their country, and that their government is unable or unwilling to protect them.
This decision on PSG has been a long time coming, but–at least in my opinion–it does not go far enough.
In 2004, in a case called Matter of R-A-, DHS acknowledged that domestic violence could form the basis for an asylum claim. In that case, DHS argued in a brief that R-A- should receive asylum based on domestic violence. In its brief, DHS defined the PSG as “married women in Guatemala who are unable to leave their relationship.” Sound familiar? And that was 10 years ago.
Matter of R-A- never resulted in a published BIA decision (though R-A- herself received asylum in 2009). Since the brief was made public in 2004, asylum attorneys have relied on it to advocate for their clients, presumably with some success (since there is no data on the number of cases granted based on domestic violence, it is impossible to know for sure).
To me, the PSG “married women in Guatemala who are unable to leave their relationship” is awkward and contrived. Moreover, to receive asylum based on a PSG, the applicant must show that she was persecuted “on account of” her membership in the PSG. In other words, the persecutor harmed the applicant because she is a member of the PSG. I am not convinced that the husband was harming A-R-C-G- because she was a married woman who was unable to leave the relationship. He would have harmed her whether or not she was married and whether or not she was able to leave the relationship. The husband may have had access to A-R-C-G- because he was married to her and because she was unable to leave, but he was not motivated to harm her for those reasons.
It seems to me that there is a simpler, more elegant PSG that would have been appropriate for this case: “Women.” I suspect that I am not alone in this opinion. In amici curiae briefs, counsels for the American Immigration Lawyers Association, the UN High Commissioner for Refugees, and the Center for Gender & Refugee Studies argued that gender alone should be enough to constitute a PSG. Also, at least one federal circuit court (you guessed it – the Ninth) has held that “women in Guatemala” might constitute a particular social group.
“Women” makes sense as the PSG in this case. The evidence in the case suggests that the husband would have persecuted any woman who he was with–whether or not she was married or able to leave him. Further, country condition evidence from Guatemala makes clear that women in that country live in dire circumstances. In its decision, the Board notes that Guatemala “has a culture of ‘machismo and family violence,'” including sexual offenses and spousal rape. The victims of this violence are, for the most part, women. And, by the way, they are not just “Guatemalan women.” I imagine that if a Salvadoran woman, or a Nicaraguan woman, or a Japanese woman lived in Guatemala and integrated into the society, she would face the same problems as a Guatemalan woman. For this reason, the PSG should be “women,” as opposed to “Guatemalan women.”
But the BIA was not willing to go that far. After noting that counsel for Amici argued in favor of gender alone as the PSG, the Board held, “Since the respondent’s membership in a particular social group is established under the aforementioned group, we need not reach this issue.”
Perhaps that is the way of things. It’s best not to push the law too far, even if it makes logical sense, and even where it would protect additional people. A decision granting asylum to women (or men) who face persecution solely because of their gender would likely open the door to many more asylum seekers. Given the current state of affairs in the asylum world–the border crisis, partisan scrutiny from Congress, the backlog–maybe it’s best not to open the door too far. Maybe a relatively limited decision like Matter of A-R-C-G- is the best we could have hoped for.
I don’t mean to minimize the importance of A-R-C-G-. It is obviously a great win for the alien in that case (though the decision does not finally grant her asylum, it seems very likely that that will be the end result), and it will certainly help many women who face harm from domestic abusers. However, the decision codifies a landscape where women–many without the resources available to people like A-R-C-G- and R-A—will be forced to articulate complicated PSGs and demonstrate that they are members of those PSGs. I am not sure how many poor refugee women will actually be able to do all that.
A-R-C-G- was persecuted because she was a woman. Not because she was a Guatemalan woman, not because she was married, and not because she was unable to leave her husband. Matter of A-R-C-G- is an important step towards protecting women victims of domestic violence. Maybe next time, the BIA will take a giant leap.
[…] courts have reached different conclusions about the same proposed PSG (see, for example, the controversy surrounding the PSG “married women in Guatemala who cannot leave their relationship”). […]
[…] Through a series of cases between 2004 and 2014, the government created a (convoluted) path for victims of DV to receive asylum by classifying them as a “particular social group” (to qualify for asylum, an applicant […]
Jason, I really like your blog, but for some reason I can’t read the comments section anymore…
Thank you – Of course you cannot see my response. Hopefully we can fix this problem soon.
Thanks, glad you like my points.
To clarify, the relevant act is not the persecutor’s choice to marry her, but his choice to abuse her knowing that she in incapable of escaping it AND that he will not face punishment. That is how I would frame it. The element of “unable to leave the relationship” – and therefore unable to get anywhere in her country where she can be safe from the persecution – is absolutely essential, for one simple reason. If she is “able to leave the relationship”, then shouldn’t she, well, LEAVE??? If someone is able to leave the relationship AND live safely elsewhere in their country – the second prong being applicable to every asylum applicant – then why in the world should theY get them asylum in the U.S.? There’s enough fraud in the system as it is, and broadening this category would just make it worse.
I recognize the concern about fraud (and floodgates), but when formulating a PSG, it seems to me the issue is, Why is he motivated to persecute her? I think it is because she is a woman. We could add the “not able to leave” requirement to any of the asylum categories (so Jews who are able to escape the Nazis are not part of the persecuted group because they can leave?). I think this is better accounted for in the provisions related to internal relocation. Maybe we are splitting hairs, but at some point, the BIA will need to confront a case where “women” (or “men”) is the PSG. Logically, such a group can be a PSG, but this of course must be balanced with practical considerations like more fraud and too many people entering the system. I have been doing some research on the origin of PSG, and (surprise, surprise) it seems that the concept was much more limited when it was originally introduced to the Refugee Convention in 1951. I will try to post on that point in the near future.
Jason, I disagree with a broad PSG category such as women, and I also disagree that the alleged victimization was not on account of the membership in the articulated PSG. Part of the reasons that particular victims get chosen is usually because the persecutor relies on acting with impunity, as is the case many times when i represent Christian Pakistani women, for example, who are raped in great part because the rapist knows the woman – because of her religion in context of the society/government – is unable to take effective action against him or obtain protection. That factor is inextricably linked to the persecution. The PSG of “married women unable to leave” makes perfect sense, because an unmarried woman certainly need not stay with a man not her husband, as the government there does not afford the same “privileges” to a shack up as to a lawful husband, as offensive as the acquiescence in marital violence is. Moreover, if the woman were “able to leave”, one presumes she would do so rather than voluntarily continue to be abused, psychological impediments notwithstanding. Why provide asylum to a woman who is not “unable to leave”?
Those are very fair points (as usual). To me, the husband was not motivated by the fact that the woman was unable to leave. He was motivated by the fact that she was a woman. Even if she was able to leave, he would be motivated to harm her. The fact that she cannot leave means he has ACCESS to harm her. I see this as different from MOTIVATION to harm. Perhaps the distinction is too subtle to be meaningful. I think your example of the Pakistani Christian is a good one. Perhaps the rapist is motivated only by the fact that the victim is a woman, and her Christianity is incidental to his motivation (but not to his access or ability to harm her). Applying your analogy to the Guatemalan situation, the husband has married/selected the woman because he knows she cannot leave the relationship. That could be, but I suspect it is much easier to identify a woman as Christian and then decide to persecute her because the government won’t protect her than to identify a woman as someone who cannot leave a relationship and then decide to persecute her for that reason.