The State of Gender Violence-Based Asylum Claims

Asylum is a form of humanitarian-based relief designed to offer protection to certain victims of persecution based on their race, religion, nationality, political opinion, or membership in a particular social group. Many applications for asylum are based on membership in a particular social group such as claims based on gender. You can view our discussion addressing Asylum law here.

Matter of Acosta was a decision by the Board of Immigration Appeals, (BIA) issued in 1985 where the BIA  first  defined  the  term  “particular  social  group” (PSG). The BIA concluded that the other four protected grounds all should encompass innate characteristics (like  race  and  nationality)  or  characteristics  that  should  not  be  required  to  change  (like  religion  and  political  opinion) which means that  PSG  membership  can  be  based  either  on  a  shared  characteristic  members  cannot  change   or a characteristic they should not be required to change.

Subsequent to Matter of Acosta, the BIA then recognized gender as this type of immutable characteristic that cannot be changed or should not be required to be changed in a case titled Matter of  Toboso-Alfonso. Although it was now becoming clearer as to the requirements and factors to address to bring a successful social group-based claim, unfortunately this began to change. These social group based claims, began to be the focus of attack by different presidential administrations in efforts to significantly curtail an influx of asylum based applications.

Prior administrations focused their efforts in attempting to have the BIA establish new requirements to establish a particular social group. These decisions were so focused in making it more difficult to bring social group-based claims, that the reasoning supporting these decisions began to lose rationality, contradicting past BIA case law while serving to further confuse the factors needed to address a social group. Such newly created requirements that were difficult to understand were the requirements to establish that a social group is socially distinct and sufficiently particular.

With the Trump administration, the administration began to be even more specifically focused on gender violence-based claims. As a result, former attorney generals under the Trump administration issued decisions creating further requirements, arguably through more confusion, in efforts to further impede the possibility of successfully bringing a gender violence-based claim.

In a somewhat surprising decision issued by the BIA in 2014, the decision created the clearest guidance on analyzing gender-based claims especially with respect to the issue of social distinction and particularity. The Court confirmed the importance of evidence of particular country circumstances to support the claim that “married women in Guatemala who are unable to leave their relationship” was a cognizable social group.

Also, important to note is that the Court held that it was important to consider a range of factors, including religious, cultural, and legal issues as well as personal experiences and country conditions to determine whether a social group is particularly defined and socially distinct to be considered a cognizable social group. Delineating the different factors to consider whether a social group is particularly defined and socially distinct was of significant importance since prior decisions addressing the issue, articulated reasoning that was confusing and as mentioned, contradictory to past BIA case law, including Matter of Acosta. Furthermore, the decision recognized that victims of domestic violence could be eligible for asylum.

Matter of A-B-I was issued in 2018 by former Attorney General Sessions. The decision essentially overruled Matter of A-R-C-G- on procedural grounds where the Attorney General found that the decision was a result of concessions by the government and not an application of law by the BIA. However, the more harmful part of the decision were comments in the decision significantly restricting eligibility for asylum based on a gender-based claim.

The Attorney General stated that domestic violence and gang-based violence generally could not be the basis for asylum, further adding that a domestic violence-based claim is one that arises out of “private” matters related to a “personal relationship” which could not be a basis for a protected ground. Additionally, the decision’s damaging statements included implying that asylum claims involving non-state actors, may require showing that the government condones or is helpless to protect victims, instead of just proving that the government was simply unable or unwilling to control the persecutor which had always been the standard before Matter of A-B-.

Furthermore, the Attorney General Suggested that asylum seekers must prove that the persecutor is aware of the social group’s existence to prove nexus. Again, the former standard was to prove that the persecutor was targeting the asylum seeker on account of characteristics shared with others in the group. These comments created almost insurmountable barriers to overcome in domestic violence-based claims especially since in most cases it is extremely difficult to know the exact intentions of any individual, specially to know if a persecutor is aware of the existence of a particular social group.

In January of 2021, former Acting Attorney General Barr issued Matter of A-B-II with the supposed intent to clarify issues from Matter of A-B-I. This decision just proceeded to cause more confusion and further limited all protected social group-based claims by stating that particular social group-based claims require different standards than other asylum claims based on other grounds.

Decision issued by Attorney General Garland in June of 2021 where he ordered to vacate the decisions in Matter of A-B-I and Matter of A-B-II. The Attorney General criticized the prior decisions indicating that the reasoning indicating that victims of private criminal activity will not qualify for asylum except in exceptional circumstances, created a strong presumption against asylum claims based on private conduct which “threatens to create confusion and discourage careful case-by-case adjudication of asylum claim.” Therefore, the Attorney General ordered that analysis of Asylum claims should be based on the analysis and reasoning articulated in Matter of A-R-C-G-.

So, after Matter of A-B-III, gender-based claims appear to be on more solid ground since Matter of A-R-C-G- is again valid precedent to serve as guidance for bringing such claims. However, it is important to understand that the analysis explained in Matter of A-R-C-G- is still inconsistent with other prior BIA case law although more in line with Matter of Acosta. As a result, it is good news that these gender-based claims are now a viable option again in asylum cases, but anyone bringing such a claim cannot rest expecting that such claims will lead to automatic approval. Although good that they are back, the work still must be done to attempt to meet the different factors to establish that the group being claimed meets the requirements of a particular social group which is not always easy to accomplish even in the best of times.

For that reason, it is not recommended to travel down this road without the experience and skills of an experienced immigration attorney.