Domestic Violence Based Asylum Claims...domestic violence asylum claims, a process drawn out by the BIA’s shifting explanation of the general legal standard it uses to assess social

Domestic Violence Based Asylum Claims

Fuentes-Erazo v. Sessions, 848 F.3d 847 (8th Cir. 2017)

Fuentes-Erazo v. Sessions, 848 F.3d 847 (8th Cir. 2017), Excerpt from Opening Brief …... 2–9

Department of Homeland Security Brief in Matter of L-R-…………………………………10–40

See also Blaine Bookey, Gender-Based Asylum Post Matter of A-R-C-G-: Evolving Standards and Fair Application of the Law, 22 SW. J. INT'L L. 1 (2016). Available at https://cgrs.uchastings.edu//sites/default/files/Gender-Based%20Asylum%20Post-Matter%20of%20A-R-C-G-%20Evolving%20Standards%20and%20Fair%20Application%20of%20the%20Law.pdf

James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation – DV ASYLUM - PP slide 7

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Fuentes-Erazo v. Sessions, 848 F.3d 847 (8th Cir. 2017)

Argued October 20, 2017 – Decision February 16, 2017

Excerpt from Opening Brief

I. Legal background; Matter of A-R-C-G-

The Court should reverse the BIA and remand because Maria is a “refugee”

eligible for both asylum and withholding relief. 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1)(A); 1231(b)(3). To establish that she is a refugee Maria must prove:

(1) past or future harms amounting in severity to “persecution;” (2) that she

possesses one or more protected characteristics: “race, religion, nationality,

membership in a particular social group, or political opinion[;]” (3) nexus—that

her protected characteristic was or will be “at least one central reason” for the

persecution; and (4) that the Honduran government was or will be either unable or

unwilling to control her persecutor. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i); 8

C.F.R. §§ 1208.13(b), 1208.16(b). A showing of past persecution gives an asylum

or withholding applicant a rebuttable presumption of future persecution. 8 C.F.R.

§§ 1208.13(b)(1)(iii); 1208.16(b)(1)(i).

The BIA misapplied its own precedent, Matter of A-R-C-G-, the first

decision to hold that women fleeing domestic abuse may form a valid (or

“cognizable”) particular social group. A-R-C-G- marked the culmination of fifteen

years of litigation and inter-agency deliberations that forged rules specific to


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domestic violence asylum claims, a process drawn out by the BIA’s shifting

explanation of the general legal standard it uses to assess social group

cognizability. See Gaitan v. Holder, 671 F.3d 678, 682-85 and n.2 (8th Cir. 2012)

(J. Bye, concurring). A short summary of this history will provide important

background for the arguments that follow.1

For many years the BIA asked only whether members of a proposed group

share an “immutable characteristic” that either cannot be changed or is so

fundamental to identity or conscience that it should not be required to be changed.

Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985). Acosta listed “sex” as a

paradigmatic immutable characteristic and held that each proposed social group

must be evaluated on a “case-by-case basis” factoring all relevant evidence of

cognizability. Id. at 233.

In 1996, the BIA applied Acosta and recognized the gender-based group,

“[y]oung women of the Tchamba-Kunsuntu Tribe of northern Togo who have not

had [female genital mutilation], as practiced by the tribe, and who oppose the

practice.” Matter of Kasinga, 21 I. & N. Dec. 357, 365 (B.I.A. 1996). The case

was important not only for its social group ruling but also for its culturally

1 For a comprehensive history of domestic violence asylum claims, see Karen Musalo, Personal Violence, Public Matter: Evolving Standards in Gender-Based Asylum Law, 36 HARVARD INT’L R. 45 (2015); Blaine Bookey, Domestic Violence as a Basis for Asylum: An Analysis of Case Outcomes in the United States from 1994 to 2012, 24 HASTINGS WOMEN’S L.J. 107 (2013).


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contextualized analysis of nexus with respect to gender-based forms of

persecution. Kasinga’s expert witnesses and country conditions evidence detailed

the cultural tradition of female genital cutting in Togo and explained how the

practice systematically subordinated women in that society. Id. at 360–62. The

BIA relied on this evidence to hold that Kasinga’s social group was immutable and

that her family could inflict persecution “on account of” her group membership in

light of the cultural custom, even though they engaged in it without any punitive

motive. Id. at 366–67. The deeply engrained cultural norms that defined the

practice also normalized it societally and deprived women of state protection from

this form of gender persecution.

The contextualized analysis of immutability and nexus in Kasinga signaled

domestic violence could also be a basis for asylum in some circumstances. An

asylum applicant named Rodi Alvarado marshaled similarly detailed expert

evidence showing that deep-seated social norms in Guatemala treat women as

property of their spouses, a subordinate status that both normalizes domestic abuse

and, as with FGM in Togo, deprives women of meaningful state protection in

Guatemala. An immigration judge granted Alvarado asylum, but in 1999, the BIA

reversed in a controversial precedent departing from Acosta and Kasinga and

rejecting her social group of “Guatemalan women who have been involved


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intimately with Guatemalan male companions, who believe that women are to live

under male domination.” Matter of R-A-, 22 I. & N. Dec. 906 (B.I.A. 1999).

Widespread criticism prompted the Justice Department to propose a social

group regulation in 2000 that would have superseded R-A-. In 2001, Attorney

General Janet Reno vacated the BIA’s decision and remanded Alvarado’s asylum

application to the Board pending finalization of the regulation. Matter of R-A-, 22

I. & N. Dec. 906 (A.G. 2001); Asylum and Withholding Definitions, 65 Fed. Reg.

76588 (proposed Dec. 7, 2000). However, the regulation was never finalized, and

in the years that followed two more Attorneys General would consider Alvarado’s

case without bringing it to final resolution. Matter of R-A-, 23 I. & N. Dec. 694

(A.G. 2005); Matter of R-A-, 24 I. & N. Dec. 629 (A.G. 2008).

Efforts to establish national guidance on domestic violence claims were

delayed during this period as the BIA issued a series of social group precedents

that imposed two new legal requirements—“social visibility” and “particularity”—

on top of Acosta’s traditional immutability test. E.g., Matter of C-A- 23 I. & N.

Dec. 951 (B.I.A. 2006); Matter of S-E-G-, 24 I. & N. Dec. 579 (B.I.A. 2008).2

2 The Seventh and Third Circuits have refused to give Chevron deference to the social visibility and particularity tests. Cece v. Holder, 733 F.3d 662, 676 (7th Cir. 2013); Valdiviezo-Galdamez v. Holder, 663 F.3d 582, 604 (3d Cir. 2011). Other circuits have deferred to the new interpretation, See, e.g., Rivera-Barrientos v. Holder, 666 F.3d 641, 650 (10th Cir. 2012), while some circuits, including the Eighth, have applied the tests without fully resolving whether they are reasonable. Gaitan v. Holder, 683 F.3d 951 (8th Cir. 2012) (Colloton, J., concurring in the


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Matter of S-E-G- considered a gang-based asylum claim and explained that a group

has social visibility when the members share a discrete characteristic that, when

considered in the “context of the country of concern and the persecution feared,”

causes society to perceive them as a group. 24 I. & N. Dec. at 586–88. S-E-G- also

noted that particularity asks “whether the proposed social group can accurately be

described in a manner sufficiently distinct that the group would be recognized, in

the society in question, as a discrete class of persons.”3 Id.

Before and after the BIA moved from the Acosta standard, DHS held a

consistent position that domestic violence could be a basis for asylum, and, in two

key briefs, provided a roadmap for the adjudication of such claims. In a 2004 brief

to the Attorney General in Rodi Alvarado’s case, DHS explained that Alvarado’s

personal experiences and expert evidence established her membership in a

cognizable social group foreshadowing A-R-C-G-: “married women in Guatemala

who are unable to leave the relationship.” Dep’t of Homeland Security

denial of rehearing en banc). The Ninth Circuit questioned the new tests while reserving the issue of Chevron deference in Henriquez-Rivas v. Holder, 707 F.3d 1081, 1089 (9th Cir. 2013). The issue of the validity of the new tests is not presented in this case. 3 The BIA revisited the particularity and social visibility standards in, Matter of W-G-R- and Matter of M-E-V-G-. 26 I. & N. Dec. 208 (B.I.A. 2014); 26 I. & N. Dec. 227 (B.I.A. 2014). In the decisions, the Board renamed “social visibility” as “social distinction” in an effort to address disagreement amongst circuit courts as to the interpretation and validity of the new standards.


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Supplemental Brief, Matter of R-A-, at 19.4 Relying on evidence showing that

Alvarado’s husband and others in Guatemalan society would continue to view

Alvarado as his property, DHS asserted that her physical departure would not end

their domestic relationship, thereby establishing both the immutability of the

proposed social group and nexus. Id. at 28-31.

In 2009, DHS filed a brief in a separate domestic violence case at the Board,

Matter of L-R-, reaffirming its position. Dep’t of Homeland Security Supplemental

Brief, Matter of L-R- (B.I.A. Apr. 13, 2009).5 In L-R-, DHS explained that with

the right evidence “Mexican women in domestic relationships who are unable to

leave” and “Mexican women who are viewed as property by virtue of their position

within a domestic relationship” would be viable social groups satisfying

immutability and also the new social visibility and particularity test. Id. at 14.

DHS showed that "evidence about how the respondent’s abuser and her society

perceive her role within the domestic relationship," was key to a proper analysis of

cognizability and emphasized evidence that L-R-’s abuser believed women

occupied subordinate positions in relation to men in domestic relationships, such as

their long-term cohabitation. Id. at 14. Deep-rooted gender norms in Mexico both

4 Available at: http://cgrs.uchastings.edu/sites/default/files/Matter%20of%20R-A-%20DHS%20brief.pdf 5 Available at: http://cgrs.uchastings.edu/sites/default/files/Matter_of_LR_DHS_Brief_4_13_2009.pdf.


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http://cgrs.uchastings.edu/sites/default/files/Matter%20of%20R-A-%20DHS%20brief.pdf

http://cgrs.uchastings.edu/sites/default/files/Matter%20of%20R-A-%20DHS%20brief.pdf

http://cgrs.uchastings.edu/sites/default/files/Matter_of_LR_DHS_Brief_4_13_2009.pdf

http://cgrs.uchastings.edu/sites/default/files/Matter_of_LR_DHS_Brief_4_13_2009.pdf

reinforced the abuser’s view that domestic violence was tolerable and created a

culture of impunity depriving women of meaningful state protection. Id.

With respect to a respondent's ability to leave a relationship, DHS called for

a “case-by-case, fact specific examination of whether it is reasonable to expect the

victim to [leave] under all the circumstances.” Id. at 20. DHS also clarified that in

the context of past persecution, the “circumstances” to be considered are those

which existed at the time the persecution was inflicted, emphasizing that the

relevant evidence was whether “economic, social, physical, or other constraints

made it impossible for the applicant to leave the relationship.” Id. at 16.

Ultimately, the BIA remanded both R-A- and L-R- to immigration judges who

granted relief without either case creating a national precedent. The BIA would

take this step in A-R-C-G-.

In 2014, the Board issued long-awaited definitive guidance on domestic

violence claims, upholding the particular social group “married women in

Guatemala who are unable to leave their relationship” in Matter of A-R-C-G-. 26 I.

& N. Dec. 388 (B.I.A. 2014). A-R-C-G- was married to her husband when she was

a minor and suffered years of domestic violence at his hands, including rape. Id. at

389. In deciding her claim, the Board followed the analytical framework developed

by DHS in its R-A- and L-R- briefs. Importantly, the BIA held the immutability of

a relationship is to be assessed in consideration of the respondent’s experiences,


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the abuser’s views, and all country condition information that may be relevant to

societal understanding, including whether religious, cultural, or legal constraints

would consider a woman able to “leave” a relationship merely by physically

escaping separating from her abuser. Id. at 393.

This Court recently applied A-R-C-G-’s guidance as to when an immutable

relationship is socially distinct. See Gonzalez Cano v. Lynch, 809 F.3d 1056 (8th

Cir. 2016). For example, social distinction may be evidenced by the fact that the

society in question recognizes that the group members need special protection or

when there is relative impunity for the persecution suffered. Id. at 1059. Fifteen

years in the making, Matter of A-R-C-G-’s analytical methodology aligned agency

domestic violence and social group jurisprudence to produce the framework that

governs this case.


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Documents

Domestic Violence Based Asylum Claims...domestic violence asylum claims, a process drawn out by the BIA’s shifting explanation of the general legal standard it uses to assess social