On August 26, 2014, in Matter of A-R-C-G, the Board of Immigration Appeals found that victims of domestic violence in their native country who are unable to leave their relationships can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal. The case involved a married women in Guatemala who was being abused by her husband. She attempted to escape the abuse by relocating within the country and even turned to local police for help to no avail. She eventually made her way to the United States and applied for asylum. The Immigration Judge found that she did not qualify for asylum. The Board of Immigration Appeals reversed the Judge’s decision.
To qualify for asylum in the United States, the immigrant has the burden of showing that they are a refugee, meaning a person who is outside of his or her own country of nationality who, owing to a fear of persecution on account of a protected ground, is unable or unwilling to avail himself of the protection of the state. Those who can show that they have credible fear of persecution on the account of their race, nationality, religion, political option, or membership to a particular social group qualify for asylum.
An applicant seeking asylum based on his or her membership to a particular social group must establish that the group is composed of members who have a common immutable characteristic, the group is defined with particularity and is socially distinct within the society in question. In Matter of A-R-C-G, the Board found that gender was the immutable characteristic. The critical requirement is that the defining characteristic of the group must be something that either cannot be changed or that the group members should be required to change in order to avoid persecution. (Some judges have found that sexual orientation is an immutable characteristic. Gays, Lesbians and other members of the LGBT community may also qualify for asylum.) In Matter of A-R-C-G, the Board found that marital status can also be an immutable characteristic where, due to cultural, religious or other case specific factors, the victim is not able to leave the relationship. It more probable that a victim will qualify for asylum where they seek protection from their spouse’s abuse and the police or government refused to assist.
The particular social group must not only share an immutable characteristic but they must be socially distinct in that they are perceived as being a group by society. To determine whether the group is socially distinct, Immigration Judges will look to evidence to determine whether the victim’s native country makes meaningful distinctions based on the common immutable characteristic. For example, in the case of a married woman who is unable to leave her relationship, the Judge will examine whether there are local laws to protect victims of domestic violence, whether they enforce those laws, and whether there are any political and social stereotypes concerning victims of domestic violence. The issue of social distinction will depend on the facts and evidence of each case.
Each asylum case based on a claim of domestic violence will be examined very closely by asylum officers and Immigration Judges. The victim will have a high burden of showing that they are a member of particular social group in their native country. Each victim’s personal experience will be evaluated to determine whether they qualify for asylum.