U.S. courts have grappled with the relation between asylum law and domestic violence for nearly twenty-five years.
This is in part because undocumented immigrants are among the most vulnerable members of our communities. Recognizing that abusers and criminals often take advantage the vulnerability created by a lack of immigration status, there have been many efforts over the years to figure out how these two issues are linked — and how the groups suffering in these situations can be protected.
At Pelton + Balducci, we help our clients navigate through the challenges of the asylum, VAWA self-petitions, and other issues of domestic violence and immigration by utilizing our combined 50 years of field experience to passionately and meticulously advocate on their behalf.
The Case of Rody Alvarado: Domestic Violence & Asylum Law
In 1999, the Board of Immigration Appeals (BIA) reversed a grant of asylum to a Guatemalan woman named Rody Alvarado.
Rody had suffered a decade of horrific violence at the hands of her abusive husband, whom she married when she was 16 years old. Her husband had served in the Guatemalan military, and he reinforced his domination of his wife by boasting to her of his involvement in torture and murder. (The case is Matter of R-A-, Int. Dec. 3403 (BIA 1999)).
This decision was unsettling, and it was vacated (made not legally binding) by Attorney General Janet Reno in 2001.
One of the central issues, which has remained a topic for debate, is whether domestic violence survivors can prove that they suffer harm as members of a “particular social group,” which is required by asylum law.
Are Domestic Violence Victims Members of a “Particular Social Group?”
Federal agencies and Attorneys General struggled over this issue. Indeed, the Department of Homeland Security filed a brief in support of Ms. Alvarado’s claim, arguing for ways in which she could be found eligible for asylum.
Eventually, the case was sent back from the BIA to the immigration court, where an immigration judge granted Ms. Alvarado’s asylum application in 2009.
Since the decision was issued by an immigration judge, it was not binding as precedent on any other case. As a result, there was no binding authority on the question of whether survivors of domestic violence could prove that they suffered harm as members of a “particular social group”.
Other Domestic Violence Asylum Cases Helped Guide Precedent
Some guidance finally came in 2014 with the BIA’s publication of Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). This court involved another Guatemalan domestic violence survivor, who was able to prove that she had been persecuted as a member of a particular social group, namely, “married women in Guatemala who are unable to leave their relationship.”
This case was a watershed, finally providing precedential guidance for a path to a successful asylum claim for domestic violence survivors.
Tragically, former Attorney General Jeff Sessions, overruled Matter of A-R-C-G- in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
Not only did this overrule the important precedent set (in Matter of A-R-C-G-), but former Attorney General Sessions also sought to severely restrict asylum cases filed by applicants who feared persecution from non-government actors.
Not only did this include abusive spouses, but it also extended to gangs, which have been a scourge throughout the Western Hemisphere. In many areas they have become more powerful than the governments in the countries they terrorize.
What is the precedent for domestic violence asylum cases now?
In 2021, Attorney General Merrick Garland vacated Matter of A-B- and re-established Matter of A-R-C-G- as precedent.
Unfortunately, Matter of A-B- has severely hurt the cases of many people fleeing domestic violence and gang violence. It also exposed the vulnerability of asylum law (and immigration law more broadly) to political manipulation.
The Biden Administration has indicated that it may strengthen the ability of domestic violence survivors to seek asylum by publishing federal regulations; however, the effort to publish regulations to guide the adjudication of asylum claims by domestic violence survivors is an effort that has supposedly been in progress for over 20 years.
The good news is that asylum claims for domestic violence survivors remain viable, and we once again have precedent to affirm their viability. In addition, although Matter of A-B- made the environment much more challenging for domestic violence-based asylum seekers, arguments remained that asylum law extended to domestic violence survivors, and we are proud to have represented successful domestic violence-based asylum applicants even when Matter of A-B- was still valid.
Contact a Louisiana Immigration Attorney Today
Domestic violence-based asylum cases are very specialized and require a unique approach to their development and presentation. Our Louisiana immigration lawyers at Pelton + Balducci have represented domestic violence survivors in a variety of cases, including affirmative and defensive asylum applications.
If you’re seeking immigration protection as a survivor of domestic violence, we would welcome the opportunity to speak with you and to give you an honest evaluation of your options.
Note: If you’re currently in danger of domestic violence, we encourage you to take care of your immediate safety before seeking immigration assistance. You can contact the National Domestic Violence Hotline at 1-800.799.SAFE (7233) for information and resources. Also, if you’re currently in a domestic violence situation, be mindful that Internet usage can be monitored and is impossible to erase completely. You should clear your browser history after visiting this website. Learn more about digital security if you’re in danger due to domestic violence here.
