Claiming Asylum Based on Domestic Violence

You may qualify for asylum in the United States if you have been persecuted in your home country (or if you fear that you will be) by either your government or by persons or groups that your government is unwilling or unable to control. Does that extend to a personal situation involving domestic violence? It's certainly not a classic asylum case, but people have successfully applied for asylum based on being victims of domestic violence. Nevertheless, this area of the law remains somewhat unsettled, as explained in more detail below.

Can Fear of Domestic Violence Form the Basis of an Asylum Claim?

If you were a victim of domestic violence in your country of origin, you may, under limited circumstances be eligible for asylum, provided that:

• the violence perpetrated against you is motivated by one of five grounds: your political opinion, religion, race, nationality, or membership in a particular social group, and
• that your government is unwilling or unable to protect you from the perpetrator.

You would need to try to show how cultural or societal 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 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 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.

Are Victims of Domestic Violence Considered Members of a Particular Social Group?

Women are more likely than men to be victims of domestic violence. This is because men are generally more likely to inflict or threaten physical harm upon women at an interpersonal level, and also because male-dominated societies often try to limit women's social roles to the domestic sphere while systematically subordinating women's status, including in the justice system.

As a result, women might be forced to remain in an environment where their abuse will be tolerated and perhaps even expected. Consider, for example, societies where it is not considered criminal for a husband to sexually assault his wife, or societies where women are stoned to death in so-called "honor killings" by relatives. Nevertheless, women's 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 legally complex. Usually, it means describing one's group membership in terms of a characteristic that is difficult or impossible to change. It might also involve highlighting the group's social visibility, as well as other factors.

Attorneys often try to make a case for domestic violence victims' group membership based on women's inability to leave their domestic relationship, both personally and in terms of societal support or the lack thereof. 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, for example because any police you complain to would offer no help.

Hence, for example, if you are a married woman from Afghanistan, then you could 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.)

Also, if you're applying affirmatively (not in removal proceedings), and feel uncomfortable explaining what you underwent in front of a male asylum officer, you might consider requesting a female officer.

Is Domestic Violence Considered a Form of Persecution?

Although "domestic violence" has no universal legal definition, this and related terms are usually understood to mean 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 was 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. Under basic asylum eligibility rules, someone who can relocate and live safely within the another part of the home country will not be able to demonstrate a well-founded fear of persecution and will not be granted asylum in the United States.

Can You Include Non-Citizen Children in Your Asylum Application?

Whether your children can be included in an asylum application (and therefore be granted asylum along with you) depends on their age, marital status, and location, as follows.

• If your children are in the United States with you, they can be included in your asylum application. They must be under the age of 21 and unmarried. They need not have also suffered domestic violence to be included in your application. By including them, they will receive a grant of asylum along with you, but could also be denied and placed into removal proceedings along with you.

• If your children are outside of the United States you can, after approval, apply for them to enter as derivative refugees. You must do this within the first two years of having been granted asylee status. To qualify, your children will need to have been under 21 and unmarried when you filed your asylum application. You will need to file Form I-730 with U.S. Citizenship and Immigration Services (USCIS) along with required documentation.

Getting Legal Help

Given the 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.