Wednesday, August 27, 2014

Board of Immigration Appeals Recognizes Domestic Violence as a Basis for Asylum

The UC Hastings Center for Gender & Refugee Studies issued this press release late yesterday:

The Board of Immigration Appeals (BIA), the highest administrative immigration court in the United States, published a landmark decision today in Matter of A-R-C-G-. This ruling has the potential to affect immigrant women survivors of domestic violence across the country. The BIA found that women fleeing domestic violence can be members of a particular social group, one of the grounds for asylum, and remanded a case involving a Guatemalan woman asylum seeker to the immigration court for a new decision. The Board’s decision signals a move away from restrictive interpretations of the law that have made it difficult for domestic violence survivors to receive protection in the United States. CGRS provided consultation to the attorney in the case and filed an amicus brief.

The case involves a mother of three, Ms. C-G-, who suffered what the decision deems “repugnant abuse” at the hands of her husband, including beatings, rapes, an assault that broke her nose, and an attack with paint thinner that left her with burn scars. Her efforts to get police protection were in vain, as they refused to interfere, and her husband threatened to kill her if she contacted them further. Her husband thwarted her repeated efforts to leave and stay with relatives when he found her and threatened her if she did not return.

“If a woman in this situation cannot count on the U.S. government for protection, when her own government has failed her, who can?” asked Karen Musalo, Director of the Center for Gender & Refugee Studies at the University of California Hastings College of the Law (CGRS). “We are pleased that the Board of Immigration Appeals finally broke its fifteen-year silence on this issue and recognized through a fair application of the law that this woman, and women like her, can establish eligibility for asylum.”

The case of Ms. C-G- is part of a long history. In 1999, the BIA denied asylum to Rody Alvarado, a Guatemalan woman who, much like Ms. C-G-, fled intimate partner violence and a failed government response. An international outcry led the government to retract the BIA’s decision and issue regulations in 2000 that would have recognized domestic violence as a basis for refugee protection. Although the regulations were never finalized, and the BIA had not issued until today a published decision in a domestic violence case, the Department of Homeland Security (DHS) agreed to a grant of asylum in 2009 for Ms. Alvarado as well as in the similar and highly publicized domestic violence case of Ms. L-R- in 2010. CGRS represented both women. However, those cases were not precedential and could not, therefore, provide adequate protection to asylum seekers fleeing domestic violence. Although in the cases of Ms. Alvarado and Ms. L-R-, DHS clearly took the position that women fleeing domestic violence can qualify for protection, immigration judges have continued to issue arbitrary and inconsistent decisions due to the years-long void of binding guidance. The result: many women have been ordered returned to their abusers.

In the case of Ms. C-G-, the BIA found that she suffered harms rising to level of persecution, and DHS agreed with this view. An immigration judge had denied Ms. C-G- asylum on different grounds, finding that the abuse she suffered was the result of arbitrary criminality and not on account of her gender-defined social group. On appeal, the BIA recognized that Ms. C-G-’s social group met the (often illusive) requirements of immutability, social distinction, and particularity based on the evidence she presented.

For that reason, the BIA sent the case back to the immigration judge to consider the remaining requirements for asylum, such as whether her government is able or willing to protect her. While Ms. C-G- must still present her claims to the immigration judge in a new hearing, this ruling marks a critical turn in the administration’s interpretation of gender-based asylum claims.

Many of the women who are part of the recent surge of immigrant women and children arriving at the U.S.–Mexico border, including those held in crowded detention centers such as the one in Artesia, New Mexico, are fleeing violence at the hands of intimate partners. In some cases, the partners are gang members who target young women and force them into relationships. “Although hurdles remain, especially for women without an attorney to present evidence on their behalf, this binding ruling provides much needed guidance for immigration judges about how to handle these cases,” said Lisa Frydman, CGRS co-Associate Director and Managing Attorney, “and, ultimately, a better shot at asylum protection for women and their children in similar situations.”

The A-R-C-G- ruling represents an important step in the right direction, recognizing the arguments advocates have put forward for more than a decade. “We hope this decision reflects a renewed commitment on the part of the Obama administration to protect women’s human rights,” remarked Blaine Bookey, CGRS co-Associate Director and Staff Attorney.

KJ

http://lawprofessors.typepad.com/immigration/2014/08/board-of-immigration-appeals-recognizes-domestic-violence-as-a-basis-for-asylum.html

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