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Victory for Domestic Violence Survivors Seeking Asylum

In 2005, a woman identified in court documents only as “A-R-C-G-” fled from her abusive husband to the United States. She had endured horrific marital abuse in Guatemala, including rape, regular beatings, burnings with paint thinner, stalking and death threats. The police proved unhelpful; she called them to the house several times, but they refused to interfere in a relationship between husband and wife. After arriving in the United States, she petitioned for asylum status, but her application was denied by an immigration judge in 2009. Her case then moved to the Board of Immigration Appeals (BIA), a body within the Department of Justice that decides appeals from lower federal immigration courts. On Tuesday, August 26, in a landmark decision, the BIA gave its verdict, ruling that survivors of domestic violence may qualify for asylum in the United States. The decision effectively asserts that the United States has a moral responsibility to offer domestic violence survivors refuge.

In a nine-page decision, the BIA established that domestic violence survivors may represent a special social group deserving of protection. The decision reads, “Depending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal…” In other words, membership in this particular class of people – namely, married women in Guatemala who are unable to escape their abusive relationships – may qualify an individual for asylum in the United States. This finding represents a departure from previous policy: in 1999, in the case of Rody Alvarado, the BIA had ruled that Guatemalan survivors of domestic violence are not a protected social group.

Advocates for domestic violence survivors heralded the decision as a critical and long-awaited legal precedent. Karen Musalo, who directs the Center for Gender and Refugee Studies at the University of California’s Hastings College of Law, told The New York Times, “Women who have suffered violence in these cases can now rely on the legal principles established in this ruling. A judge can no longer say, ‘I believe these horrible things happened to you, but this is just a criminal act, this is not persecution.’” Supporters believe the decision to be a commonsense and humanitarian response to the unimaginable abuse experienced by domestic violence survivors. Such policy is in line with a Feminist perspective, which sees domestic violence not simply as isolated criminal acts but rather as symptomatic of structural power imbalances and gender inequities that leave women as a group vulnerable to oppression. Domestic violence, as a result, would constitute persecution deserving of refugee status.

The BIA ruling has the potential for considerable impact. Before the decision, the United States had ratified the Protocol Relating to the Status of Refugees in 1967 and passed the Refugee Act in 1980. Under these rules, the U.S. does not explicitly protect individuals persecuted based on their gender; it protects based only on race, religion, nationality, political opinion, or ‘membership in a particular social group.’ To secure asylum for these reasons, an individual must demonstrate that he or she has been persecuted due to membership in one of the aforementioned protected categories, and that the government in his or her home country has failed to provide adequate protection. This new verdict works to establish domestic violence survivors as one of these ‘particular social groups.’ Despite technically only applying to domestic violence survivors from Guatemala, the decision has implications for survivors from other Central American countries as well – such as Honduras and El Salvador, both of which are infamously dangerous, especially for women. Currently, about 300 women have asylum appeals based on domestic violence claims before the BIA.

The BIA decision demonstrates how the United States can conceive of its moral responsibility in the international community. However, some have expressed fear that this ruling may initiate an unmanageable wave of asylum applicants. An article published the day of the decision by The Daily Caller reads, “The decision creates a huge new incentive for Guatemalan women to cross the U.S. border, because if their asylum claim is accepted, their children get U.S. citizenship, plus the use of federal health, education and retirement programs, regardless of their initial education and work skills.” On a segment of Fox & Friends on August 27th, co-host Brian Kilmeade mused that immigrants may claim to be victims of domestic violence when they are not, in order to underhandedly receive asylum status. “Nice immigration reform,” he said sarcastically, while a graphic on screen read “Opening the Border.”

In response, The Huffington Post posted the Fox clip to its website with the heading “Watch Fox News Blow Several Facts on Major Immigration Story In Just Two Minutes.” In the accompanying article, the Post journalist notes, “It…remains to be seen how widely this change will actually be applied. The ruling doesn’t extend to all women, but rather to ‘married women in Guatemala who are unable to leave their relationship.’ Even then, the ruling says applicants may only win asylum on those grounds ‘depending on the facts and evidence in an individual case.’”

The Board of Immigration Appeals decision sheds important light on an ugly reality: Immigrants to the United States are often running from unstable and even violent conditions at home — they are seeking a better life. In recent months, immigrants from Guatemala, Honduras and El Salvador have flooded into the United States, mainly escaping social unrest aggravated by gang violence. According to U.S. Customs and Border Protection, about 63,000 unaccompanied children have been apprehended along the Southwest border of the U.S. so far this year. Honduras holds the title of “murder capital of the world”, while El Salvador and Guatemala have the fourth and fifth highest national murder rates, respectively. Although the BIA decision is solely focused on victims of domestic violence, it reiterates the larger idea that the United States has a moral responsibility to respond to events across its borders with compassion and humanitarianism. Still, resources allocated for protecting and assisting immigrants are tight. As a result, the BIA’s decision and any future attempts to protect oppressed peoples globally will need to be accompanied by appropriate funds and resources for taking in new immigrants.

Furthermore, working towards improving conditions in refugees’ home countries would mean that fewer individuals would need to seek asylum in the first place. A holistic approach would include attempts to shift the cultural norms and gender relations that promote domestic violence, as well as resources to help survivors successfully exit abusive relationships. There are no quick fixes to these gender inequities, and these issues remain as relevant to the United States as they do to communities in Guatemala or Honduras.

About the Author

Ashleigh McEvoy '15 is a political science and gender studies double concentrator and a staff writer for BPR.

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