Sunday, February 28, 2016
Although Matter of A-R-C-G-, the landmark Board of Immigration Appeals (Board) decision, gave women fleeing domestic violence a pathway to asylum, survivors continue to be routinely denied asylum by immigration judges who interpret the decision narrowly.
To address this problem, the Harvard Law School’s Immigration Refugee Clinical Program, the Center for Gender and Refugee Studies at the University of California Hastings College of Law (CGRS), and a number of prominent NGOs and immigration law experts have encouraged the Board to designate as precedent certain unpublished decisions related to domestic violence-based asylum claims. See Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G-: Evolving Standards and Fair Application of the Law, 22(1) SW. J. Int'l L. (forthcoming). The Board publishes only a limited number of decisions per year. For example, last year it published only thirty-five. The Board has sought comments for this request from the lawyers of record of those unpublished cases (including one of the authors of this post), suggesting it is taking this request seriously.
We have seen first-hand the consequences of narrow interpretation of Matter of A-R-C-G- at the IJ level. Catholic Legal Immigration Network, Inc. (CLINIC) referred “Jimena” to us at Cornell Law School’s Asylum and Convention Against Torture Appellate Clinic. Jimena, is a Salvadoran woman who was repeatedly raped, beaten, and stalked by her long-term partner. The severe abuse continued even after their relationship ended and Jimena fled with her children. On several occasions, Jimena’s former partner hunted her down and even managed to find her when she went to Guatemala. Even years after Jimena left, her former partner would appear on her doorstep, attack her, and tell her that she was his property. Jimena obtained a restraining order and called the police numerous times, but her abuser was never arrested. Worse still, the police often refused to intervene, telling her this was a private matter, best resolved between the couple.
Although Jimena’s story was nearly identical to that of A-R-C-G-, the immigration judge declined to grant asylum because Jimena, unlike the respondent in A-R-C-G-, was not married to her abuser. On appeal, the Board held that Jimena still qualified for asylum on the basis of domestic violence, despite being unmarried. The Board decision further clarified that the police’s failure to intervene satisfied the state nexus requirement.
But this decision came after Jimena had already been detained for more than a year. During that time, she was sentenced to solitary confinement for 30 days for a minor infraction (without proper process), which resulted in her near-mental collapse. Because of her distress, she was unable to eat while in solitary confinement. When the guards found her uneaten meals, they threatened to confiscate her clothes and her bed. The idea of having her clothes removed caused her so much anguish that she asked us to withdraw her appeal before the Board. Fortunately, the detention center placed her back with the general population after only a few days, perhaps because they realized the punishment had been overly severe and instituted without proper process. There, in a less-distressed state of mind, Jimena reaffirmed her desire to seek asylum. The Board granted a reinstatement of her case and ultimately granted her asylum. Nevertheless, a woman with a meritorious asylum claim, who faced extreme danger if returned to El Salvador, almost gave up this claim merely because her detention was so prolonged and traumatizing.
We strongly encourage the Board to publish precedent decisions that clarify and extend Matter of A-R-C-G-. Doing so would ensure that women like our client, who have meritorious claims, do not languish in prison-like detention centers because of immigration judges who are reluctant to apply the underlying principles of Matter of A-R-C-G and who instead interpret it as only giving a pathway to asylum for married women from Guatemala. It will also promote judicial efficiency.
While designating more decisions as precedential is essential, to truly secure the pathway for domestic violence-based asylum claims, one of the authors has argued elsewhere that more drastic measures are needed. A solution this author proposes is finalizing the Department of Justice regulations that have been pending since 2001. Carolyn Wald, Does Matter of A-R-C-G- Matter that Much?: Why Domestic Violence Victims Seeking Asylum Need Better Protection, 25 Cornell J.L. & Pub. Pol'y (forthcoming).
The consequences of continuing to allow immigration judges to decide domestic violence-based asylum cases without further guidance is already apparent. It is imperative that something be done to prevent more women with meritorious cases from having to endure lengthy detention while the BIA considers their appeal.