Claiming Asylum Based on Domestic Violence

If you fear returning to your home country because you will be the victim of domestic violence and cannot gain protection from your government, it's possible you might claim asylum in the U.S.

You may qualify for asylum in the U.S. if you have been (or if you fear that you will be) persecuted in your home country either by your government or by persons or groups that your government is unwilling or unable to control because of your political opinion, religion, race, nationality, or membership in a particular social group.

In particular, if you are a victim of domestic violence, you may under limited circumstances be eligible for asylum – that is, provided that the violence perpetrated against you is motivated by one of the five grounds mentioned above, and that your government is unwilling or unable to protect you from the perpetrator.

In such a case, you should try to show how views prevalent in your home society regarding your and your persecutor’s respective social roles and statuses might explain not only why your government is unwilling or unable to protect you from domestic violence but also, in the first place, why you are a target of persecution on the applicable ground.

Thus, for example, if you are a woman (as most victims of domestic violence are), then, depending on the country where you are from (and perhaps also on the U.S. state where you live), you might be able to successfully claim domestic violence-based persecution on the ground of your membership in a particular social group --- a group that is largely defined by widespread perceptions of your gender’s proper domestic role and subordinate social status.

This area of the law remains somewhat unsettled, however, as explained in more detail below.

Domestic Violence as a Form of Persecution

Although “domestic violence” has no universal legal definition, this and related terms are usually understood to refer to the threat or infliction of physical harm by one person on another in a family, intimate relationship, or household. (A household is a group of people who live together, whether or not they are related by blood, marriage, or adoption.)

A few examples include: A husband beating or raping his wife; parents threatening to beat their son or daughter; a mother-in-law beating her daughter-in-law; or foster parents sexually abusing their foster child.

Such violence could involve serious or persistent physical harm. However, it would still not amount to persecution on an applicable ground unless it is perpetrated by a person or group that the victim’s government cannot or will not control.

For example, if your father beat you for wanting to marry a person of a different race, but your home country’s government has proven unresponsive and unable to protect you, then you could qualify for asylum on the basis of race.

Likewise, if your father beat you for choosing to convert to a different religion (or for failing to comply with his orthodox interpretation of your common religion), but your home society considers such treatment to be a legitimate exercise of parental authority and, as a result, your government has proven unwilling to protect you (even turning you over to your father whenever you solicit its help), then you could qualify for religious asylum. (In either case, you should be ready to show that relocating to another part of the country would be too difficult.)

Women and Membership in a Particular Social Group

Women are far more likely than men to be victims of domestic violence. This is the case not only because men are generally more likely to inflict or threaten physical harm upon women at an interpersonal level, but also because, on an even larger scale, male-dominated societies often try to limit women’s social roles to the domestic sphere while, at the same time, systematically subordinating their status to that of men both in- and outside that sphere – including in the justice system.

As a result, women may be forced to remain in an environment where their abuse will be tolerated (seldom punished) and perhaps even expected. Consider, for example, societies where it is not illegal for a husband to sexually assault his wife, or societies where women are stoned to death in so-called “honor killings” by their relatives.

Nevertheless, women’s general vulnerability to domestic violence does not, by itself, constitute a recognizable basis for membership in a particular social group.

Qualifying for membership in a particular social group can be difficult. It requires defining one’s social group with just the right kind and amount of particularity (or specificity). Usually, this means describing one’s group membership in terms of a characteristic that is difficult or impossible to change. It may also involve highlighting the group’s social visibility, as well as other factors.

In the context of domestic violence-based asylum, this may translate into group membership based on women’s inability to leave their domestic relationship. In such a case, you would need to describe in detail the specific obstacles that would keep you from leaving, including specific acts or threats by your persecutor as well as specific ways in which your country’s laws or norms (especially on matters of marriage, divorce or domestic hierarchy) would amplify the problem.

Hence, for example, if you are a married woman from Afghanistan, then you could successfully define your group as “married women from Afghanistan who are unable to leave their domestic relationship” – but not as “women from Afghanistan who are victims of domestic violence.”

In 2014, a woman from Guatemala used this strategy successfully before the Board of Immigration Appeals, in a case called Matter of A-R-C-G- et al. (26 I&N Dec. 388 (B.I.A. 2014)). Having suffered regular and serious beatings, and attempted to get help from the police (who told her they wouldn't interfere with a marital relationship) the applicant repeatedly tried to leave and stay with her father. Her husband, however, sought her out and threatened to kill her if she did not return to him. On this basis, the B.I.A. found that the woman had defined a recognizable social group and was potentially eligible for asylum. (For technical reasons, however, the B.I.A. didn't actually grant asylum, but sent the case back to the Immigration Judge.)

Given this and other difficulties in not just formulating but also proving the particularity of social groups, women seeking asylum for domestic violence based on their gender could greatly benefit from the assistance of a knowledgeable immigration attorney.

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