Since the beginning of 2018, the current Attorney General has set aside at least four rulings handed down by the Board of Immigration Appeals (BIA), which is a subsidiary of the Justice Department dedicated exclusively to appeals from immigration judges’ rulings. Instead of allowing the BIA’s rulings to stand, he has taken these cases from its jurisdiction. Given the rarity of this action in most administrations, immigration professionals are postulating that one of these, Matter of A-B-, may be used as a test case of sorts against the rights of asylum applicants who have experienced domestic violence. If the Attorney General rules against the appellant in Matter of A-B-, it may sentence domestic violence victims to death upon their return to their home country.
Can Domestic Violence Victims Get Asylum?
Both the 1951 Geneva Convention and U.S. immigration law normally define a refugee or asylee as someone who is “unable or unwilling to return to his or her country of nationality, or to seek the protection of that country because of [past] persecution,” or a well-founded fear of persecution. That persecution must be based on one of five unchanging characteristics—race, religion, nationality, political opinion, or membership in a particular social group. Under U.S. law, the state must either be the agent of persecution, or it must be shown that the state either cannot or will not stop the persecution.
It is because of this last caveat that the applicant in Matter of R-A- (2009) was able to obtain asylum. The applicant was a Guatemalan woman, the wife of a man who repeatedly physically assaulted her, and given his connections in Guatemalan society, she alleged that she was not able to be safe anywhere in her country. The BIA held that the applicant had demonstrated that the state was unwilling or unable to stop what amounted to persecution based on her membership in a particular social group (domestic violence victims with specific characteristics), and as such, granted the applicant asylum. The law on these issues has been refined since 2009, but the fundamental crux of the issue is that domestic violence victims have been able to get asylum in the U.S. if all the relevant facts have been demonstrated to the satisfaction of the authorities.