UNITED
STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
In
the Matter of :
A.M.
A------------------
BRIEF IN SUPPORT OF RESPONDENT’S APPLICATION FOR ASYLUM AND WITHHOLDING OF DEPORTATION
Kirstin
Silberschlag, Student Attorney
University of Texas School of Law
Immigration Clinic
727 East Dean Keeton Street
Austin, Texas 78705
Table of Contents
Table of Authorities
Cases
Statutes
Other Authorities
Summary of the Argument
The present case involves a request for asylum based on domestic abuse inflicted upon the applicant, A.M., by her husband. The case is governed by the Fifth Circuit’s holdings in Rivas-Martinez v. INS, 997 F.2d 1143 (5th Cir. 1993), and Coriolan v. INS, 559 F.2d 993 (5th Cir. 1977), regarding the type of evidence necessary to establish persecution motivated by actual or imputed political opinion and by membership in a particular social group. Under the standards elucidated in Rivas-Martinez and Coriolan, Ms. M. has demonstrated that her husband was motivated to harm her, in part, because of her political opinion and her membership in a particular social group.
It is important to note that recently in In re R-A-[1] the Board of Immigration Appeals (“BIA”) affirmed the principle that domestic violence could provide the basis for a successful asylum claim. The BIA found, however, that based on the evidentiary record in the case, the respondent did not qualify for asylum because she failed to provide sufficient evidence that the persecution inflicted upon her had been inflicted on account of her actual or imputed political opinion or membership in a social group within the meaning of the Immigration and Nationality Act.[2] According to the BIA, the applicant in R-A- did not produce sufficient evidence to establish that: 1) she held or expressed a political opinion or that her husband perceived her to hold one; 2) the social group to which she belonged (“Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination”) was a particular social group; and 3) a nexus existed between her husband’s behavior and her real or perceived political opinion or her social group.[3] The instant case, however, is distinguishable from R-A- both on its evidentiary record and because it arises under the Fifth Circuit.[4]
Summary of Facts
A.M. is a citizen of El Salvador who has suffered past persecution and has a well-founded fear of future persecution on account of her membership in a particular social group and/or her related political opinion. Ms. M. belongs to a social group comprised of Salvadoran women who have been intimately involved with members, or ex-members, of the Salvadoran military or death squads who assert their independence and oppose male domination. Ms. M. also holds a political opinion, which is closely related to her membership in the particular social group, that women should be free to assert their independence and autonomy; inextricably connected to this opinion is Ms. M.’s opposition to male domination and abuse.
Ms. M. has suffered past persecution in the form of extreme physical and psychological abuse inflicted by her husband, J.. Ms. M.’s husband has persecuted her by beating her, threatening to kill her by bombing her place of work, holding an unexploded hand grenade in front of her, threatening her with weapons such as a handgun and a machete, detaining her against her will, stalking her, raping her, degrading her, and describing to her in detail the gruesome and horrific acts he carried out as a member of the Salvadoran military and death squads.
Each attempt by Ms. M. to assert her independence was met with increased abuse from her husband. Ms. M. attempted to work outside the home, stand up to her husband, and separate herself from him. In virtually every instance, her husband’s abuse escalated as he tried to beat Ms. M. into submission, believing, because of his military connections, he could abuse her with impunity. Ms. M.’s husband also attempted to force Ms. M. into submission by psychologically intimidating her. Many times, her husband described in detail the vicious acts of murder and torture he committed as a member of the death squads. He would also bring home weapons, such as grenades, and tease and threaten Ms. M. with them. Once, when Ms. M. attempted to leave her husband, a group of death squad members, including her husband and his brothers, came to Ms. M.’s house looking for her. Shortly after this incident, Ms. M. was accosted by her husband, who told her that if the group had found her, they would have killed her for refusing to return to her husband. Ms. M. returned to live with her husband after this episode, terrified that if she left him again, he or other members in the death squad would hunt her down and kill her.
Ms. M. attempted to obtain help from the Salvadoran police, who failed to protect her. After a particularly violent episode in which her husband choked her, threatened to kill her, and tried to attack her with a machete, Ms. M. attempted to report her husband to the police in her village. Instead of offering her protection, the police merely told Ms. M. that they could not protect her because her husband was in the military and that a wife could not denounce her husband. The police also implied that she was an unfaithful wife for coming to the police. Ms. M. also attempted to divorce her husband, but such attempt also failed because her husband threatened her divorce lawyer, leaving Ms. M. with no meaningful protection against her husband’s abuse.
Like the government, society in general, including influential individuals in Ms. M. ’s town, ignored the abuse Ms. M. was forced to suffer. Ms. M. developed health problems due to the constant stress caused by her husband’s constant and severe abuse. Ms. M. finally decided that she would not be able to escape the abuse anywhere in El Salvador because the government would not protect her from her husband’s abuse. Ms. M. escaped to the United States because she was sure her husband, with the help of the ex-members of the military and death squads, would find here wherever she fled in the country. Ms. M.’s husband would still be able to threaten and abuse Ms. M. with impunity were Ms. M. to return to El Salvador. Her husband’s abuse is condoned by general social norms of El Salvador and by the lack of protection from the Salvadoran government. Ms. M. is further in danger because of her husband’s status as an ex-member of the Salvadoran military and death squads.
Ms. M. has Been Persecuted and has a
Well-Founded Fear of Future Persecution
Persecution under United States asylum
law
Political asylum may be granted to an individual who meets the statutory definition of “refugee,” which is defined as a person who has suffered past persecution or who has a well-founded fear of future persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.[5] While the INA does not provide a precise definition of persecution, the term has been construed as requiring a showing by the alien that harm or suffering will be inflicted upon her in order to punish her for possessing a belief or characteristic a persecutor sought to overcome. See Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994) (quoting Guevara Flores v. INS, 786 F.2d 1242, 1249 (5th Cir. 1986); Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985). “The harm or suffering need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.” Mikhael v. INS, 115 F.3d 299, 303 (5th Cir. 1997). Persecution may also be established by “cumulative, specific instances of violence and harassment toward an individual and her family members not only by the government, but also by a group the government declines to control.” Singh v. INS, 94 F.3d 1353, 1358 (9th Cir. 1996).
Both international law and United States asylum law have increasingly recognized that forms of violence like domestic violence, which are typically directed solely at women, can constitute persecution.[6] The INS, in its Gender Guidelines,[7] also recognizes that female applicants can present gender-specific claims. According to the INS Gender Guidelines, persecution inflicted on women often takes gender-specific forms, including “sexual abuse, rape, infanticide, genital mutilation, forced marriage, slavery, domestic violence, and forced abortion.” Id. at 9. The INS Gender Guidelines also state:
A woman may present a claim that may be
analyzed and approved under one or more grounds. For
example, rape,…sexual abuse and domestic violence…are
forms of mistreatment directed at girls and women and they may
serve as evidence of past persecution on account of one or more
of the five grounds (emphasis added).[8]
The abuse suffered by Ms. M. constitutes
persecution
The extreme physical and psychological harm Ms. M.’s husband inflicted upon her constitutes persecution under the Immigration and Nationality Act and was inflicted by a person that the government was unable or unwilling to control. The violence, harassment, and humiliation Ms. M. has suffered has gone unpunished by the Salvadoran government. Ms. M.’s husband inflicted severe physical and mental abuse on her numerous times. Once, J. attacked Ms. M. so viciously that the whole side of her face was left black and blue. Ms. M.’s eye became so swollen after this violent attack that she could barely see, and she feared she would permanently lose sight in that eye.[9] In addition to frequently hitting her, her husband would also violently choke Ms. M., sometimes in front of the couple’s children.[10] Ms. M. also had to endure incessant threats against her life. During one incident, after severely beating Ms. M. , her husband put a handgun to her face and threatened to kill her. After a struggle the gun discharged mere inches away from Ms. M.’s face, leaving gunpowder on her cheek.[11] Another time, her husband attacked Ms. M. with a machete.[12] He also threatened to plant a bomb under the restaurant where Ms. M. was employed.[13] Ms. M.’s husband also described in excruciating detail how, as a member of the death squads, he murdered and tortured people. Ms. M. was terrified by such descriptions, and her husband often implied that he could just as easily do to Ms. M. what he had done to his other victims.
In addition to the verbal and physical abuse, Ms. M. was also deprived of her personal freedom. Ms. M.’s husband objected to her asserting her independence; she was subjected to escalating threats, abuse, and accusations when she worked outside the home or attempted to leave J.. When she did attempt to leave him, he made good on his threats by driving to Ms. M.’s house, along with a group of death squad members, presumably to harm or kill Ms. M.. This violence and harassment inflicted upon Ms. M. fulfills the “persecution” requirement.
Ms. M. has a well-founded fear of future
persecution
To prove a well-founded fear of persecution, Ms. M. must show that a reasonable person in the same circumstances would fear persecution if deported. See Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994). The Fifth Circuit in Abdel-Masieh v. INS, 73 F.3d 579 (5th Cir. 1996), articulated the standard for judging whether a well-founded fear of persecution exists. The Court stressed that the reviewing body must “ensure that the complaining alien has received full and fair consideration of all circumstances that give rise to his or her claims.” Abdel-Masieh, 73 F.3d at 585.[14] Given her husband’s extremely violent behavior and previous threats to Ms. M.’s life, Ms. M. has a justified and well-founded fear of persecution if she is forced to return to El Salvador. Through family members still living in El Salvador, Ms. M. has learned that her husband continues to be involved in organized crime rings in El Salvador, many which consist of ex-military personnel. Before Ms. M. fled El Salvador, her husband told her many times that it would be very easy to find her anywhere in El Salvador, and that he could hunt her down and kill her wherever she was in the country. Professor W.S., an expert on the politics of El Salvador, confirms Ms. M.’s well-founded fear in his following testimony:
I am taking the time to write this
statement because I believe that Ms. M. runs a high risk of being
killed should she return to El Salvador, for reasons associated
with her efforts to evade the control over her person exercised
by her husband and his associates….I believe that remnant
elements of the former state security apparatus, enlisted by the
petitioner’s husband, pose a threat to her based on her
unwillingness to submit to his arbitrary authority…..[15]
Additionally, Professor S. testified that he believed that Ms. M.’s husband “would be able to locate her regardless of where she resided in El Salvador, and that he could kill her with a reasonable expectation of impunity.”[16]
Ms. M. was Persecuted on Account of Her
Political Opinion and Conduct and the Political Opinions Her
Husband Imputed to Her
Establishing a political opinion
generally
To establish a political opinion for the purposes of asylum, an applicant must prove, by direct or circumstantial evidence, that his or her conduct was a form of expressive conduct constituting a statement of political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (ruling that the record was not adequate to support the conclusion that respondent’s behavior was form of expressive conduct that constituted a statement of political opinion). The Supreme Court emphasized that persecution on account of political opinion is “persecution on account of the victim’s political opinion, not the persecutors.” INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992).
Because neither Congress nor the Supreme Court has defined the meaning of the term “political opinion” in the context of the Refugee Act, the plain meaning of the term must prevail. The term “political” is commonly defined as “pertaining to the exercise of rights and privileges.” Black’s Law Dictionary 158 (6th ed. 1990). U.S. law has explicitly recognized that a woman’s belief that she is not subordinate to men is a political opinion. The Ninth Circuit in Lazo-Majano v. INS granted the Salvadoran applicant asylum primarily based on political opinion principles. See Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987). The court found that the applicant, who had resisted sexual violence perpetrated against her by her employer, was expressing a political opinion. The court found that that applicant “was not permitted to hold an opinion [contrary to her employer’s]. When by flight, she asserted one, she became exposed to persecution for her assertion.” Id. at 1435. In the context of Salvadoran society, her refusal to accept her aggressor’s opinion was tantamount to a political opinion for which she was persecuted. Id.
The Fifth Circuit in Rivas-Martinez interpreted the Supreme Court’s holding in Elias-Zacarias in a manner that emphasized the need to evaluate whether the applicant held a political opinion or engaged in political conduct within the context of the applicant’s social and political reality. See Rivas-Martinez v. INS, 997 F.2d at 1147. In Rivas-Martinez, the Fifth Circuit considered the expression of political opinion in a case in which an asylum applicant never explicitly articulated her political opinion to her persecutors. The Fifth Circuit ruled that the BIA had imposed an “unrealistic requirement on entitlement to asylum” by requiring an alien to “foolhardily court death by informing armed guerillas to their faces that she detests them or their actions or ideologies.” Rivas, 997 F.2d at 1147. The Fifth Circuit suggested that a common sense approach to the political opinion inquiry revealed that an applicant’s mere acts or conduct (“working for the opposition,” “affiliation of her family members with the government”) could constitute a political opinion. See id. at 1148. Finally, the Fifth Circuit criticized the BIA for evaluating evidence of political opinion and motivation in a way “which ignored reality in general and reasonable human behavior in particular.” Id. at 1147.
Rivas-Martinez’s emphasis on the need to consider the relevant political and social context in adjudicating asylum cases is consistent with earlier Fifth Circuit decisions. For example, in Coriolan v. INS, the Fifth Circuit warned adjudicators not to assume that political expression is limited to “conventionally ‘political’ action.” Coriolan v. INS, 559 F.2d 993, 1000, 1001, 1004 (5th Cir. 1977). The court explained that in the particular context of Duvalier’s Haiti, “[i]t may be, in fact, that Haitian citizens can become the focus of persecution without ever taking any conventionally ‘political action’ at all.” Id. at 1000. The court cautioned against making unfounded assumptions “that people without overt political activity, or minority political opinions, are unlikely to be the victims of political persecution.” Id.
Political opinion in In re R-A-
Contrary to Fifth Circuit precedent,[17] in R-A-, the BIA interpreted the term “political” in a manner that did not take into account the applicant’s particular circumstances. The BIA did not define or discuss what constitutes political opinion but simply concluded that the applicant did not hold one. See In re R-A- at *20. The BIA’s conclusion seems to rest on its “sense” that the applicant did not express a political opinion, and that her persecutor did not perceive her to hold one. Id.[18] This conclusion fails to consider what constitutes an expression of a political opinion in the context of both domestic violence and the applicant’s home country, as required by the Fifth Circuit.
In the Fifth Circuit, as previously noted, adjudication of an asylum claim may not accord undue weight to the apparent absence of an explicit enunciation of political opinion by the victim. See, e.g., Rivas-Martinez v. INS, 997 F.2d at 1143. The BIA’s rigid interpretation of political opinion and imputed political opinion in contradicts both the plain meaning of “political” and the Fifth Circuit’s mandate to consider the social and political realities of an asylum applicant’s circumstances. If this mandate is to be applied meaningfully in the present case, this Court must consider, within the context of the social and political realities of domestic violence in El Salvador, whether the applicant held a political opinion or engaged in conduct that was political or was perceived by the persecutor as political.
Ms. M. held a political opinion and
her persecutor attributed to her a political opinion.
Viewed in the context of the political and social realities of domestic violence in El Salvador, specifically among members and ex-members of the Salvadoran military and death squads, Ms. M. has repeatedly expressed a political opinion and engaged in conduct that her persecutor perceived to be political. Early in Ms. M.’s marriage, before she began to assert her rights and independence, her husband’s violence toward her was less severe than it would eventually become. Although her husband was “very domineering” with Ms. M. from the beginning, the abuse escalated dramatically on account of Ms. M.’s actions and conduct. As her husband became increasingly involved in the violent culture of the Salvadoran military and death squads, and as Ms. M. increasingly asserted her independence, the abuse increased, particularly when her husband perceived actions by Ms. M. as challenges to his authority. Ms. M. began to more explicitly assert her rights and challenge husband’s belief that he possessed absolute power over her and that he could treat her with the violence and degradation he exhibited towards his other “victims” (i.e. those individuals he terrorized as a member of the death squads). Ms. M. began to talk back to her husband and refuse him things, left the house to work despite her husband’s objections, attempted to go to the police and denounce him, and even tried to divorce him. Ms. M. was punished for these actions of attempted independence by brutal abuse from her husband—Ms. M. was beaten, her husband threatened to kill her and she was threatened by members of the military sent by her husband.
Thus, unlike in R-A-, where the BIA was “unable in general to link the incidents to acts of resistance in a way that might tend to support the respondent’s theory,”[19] the persecution inflicted upon Ms. M. was clearly linked to her attempts to assert herself and oppose her husband’s dominance over her. In R-A-, the BIA ruled that the record did not indicate “that the harm arose in response to any objections made by the respondent to her husband's domination over her. Nor does it suggest that his abusive behavior was dependent in any way on the views held by the respondent. Indeed, his senseless actions…continued whether or not the respondent acquiesced in his demands.” In re R-A- at *21.
Here, however, the evidence indicates that the abuse did in fact arise in response to Ms. M.’s objections to her husband’s domination over her and attempts to assert her independence. Ms. M. expressed a political opinion when she objected to the abuse by her husband, when she stood up to her husband and objected to his right to beat her, when she attempted to petition for divorce, and when she protested to her government for redress and protection. Ms. M. was not merely expressing a human desire not to be harmed, but was stating and acting on her belief that her husband’s abuse was illegal, wrong, and had to be stopped.[20] Ms. M. believed that her husband’s relationship with her should not include violence, threats, and absolute dominion over her, and she expressed this opinion through her conduct. Ms. M. attempted to leave her husband after he became jealous, angry, and abusive towards her—implicitly protesting his attempts to subdue and restrain her. Ms. M. also obtained work outside the home to earn money and become more independent. Her husband’s violence would escalate when Ms. M. engaged in such tacit acts of independence as getting a job outside the home and talking back to her husband. The BIA in R-A- based its ruling, in part, on the fact that they found it “difficult to conclude…that there is any ‘opinion’ that the respondent could have held, that would have prevented the abuse she experienced.” In re R-A- at *27. However, in the present case, had Ms. M. not expressed her opinion through conduct challenging her husband’s violent behavior and authority and domination over her, the extreme abuse she suffered may have been less severe or non-existent.
Under the plain meaning of political opinion, Ms. M.’s opinions and conduct are properly described as political.[21] Ms. M. frequently asserted her individual autonomy and refused to remain subservient towards her husband, as was expected by him, the state forces he belonged to, and Salvadoran society in general.
As noted above, the plain meaning of “political” is that which pertains to the exercise of rights and privileges. Although asylum claims based on political opinion frequently relate to struggles for rights and privileges between governments and dissident groups, neither the Refugee Act nor case law require that political opinion be limited in this manner. In fact, refugee law, both internationally and domestically, is intended to afford protection in a broad array of circumstances and to take account of the fact that situations which produce refugees may change over time.[22] Ms. M.’s expressions of her belief that her husband’s rights and privileges as a Salvadoran man, and member or ex-member of the Salvadoran military, should not be exercised in a manner which included violence and complete control over her, constitute her political opinion within the plain meaning of the term “political.” Her rejection of her husband’s control, which included working outside the home, was not merely a personal affront to him, but instead was a contrary political opinion. Such conduct, although not “conventionally political,” according to Corlion, can nonetheless qualify as a political opinion. See Corlion, 559 F.2d at 1001.
Domestic violence experts have long recognized that a man’s violence against his wife often stems from his perception, or opinion that he imputes to his wife or partner, that she seeks to limit the rights and privileges that should accrue to him as a man. Domestic violence is “necessary to preserve overbearing male entitlement and unbearable female constraint.”[23] Professor S. B., domestic violence expert, testified that women who resist domestic violence, as well as women who leave abusive spouses, assert a political opinion by expressing, among other things, the right to independence, the right to physical integrity, the right to an equal status in a relationship, the right to a divorce, and resistance and opposition to domestic violence.[24] Although perhaps not yet viewed as conventionally “political,” challenges by a Salvadoran woman to her husband’s absolute power over her go to the heart of the rights and privileges Salvadoran society believes men should possess. Such challenges, therefore, are expressions of political opinion. The failure to recognize such challenges to male authority as expressions of political opinion ignores the social and political realities of domestic violence in El Salvador, and thus violates the Fifth Circuit’s mandate to evaluate evidence in asylum cases in a manner which reflects the social and political realities of the applicant’s circumstances.
In this case, the court must evaluate Ms. M.’s claim within the context of the social and political realities of women in El Salvador who defy the authority of their husbands and are persecuted for such action, with the complicity of government officials. Ms. M. expressed a political opinion through words and actions that her husband’s authority over her should not be absolute and abusive. Moreover, Ms. M.’s repeated challenges to her husband’s “right” as a Salvadoran man to dominate her also constitute her political opinion that she should be independent and not subject to J.’s complete control and domination.
Ms. M. Qualifies for Asylum Because Her
Husband Also Harmed Her On Account of Her Social Group
Social group generally
In addition to having and expressing a political opinion, Ms. M. is a member of a particular social group, defined as women who have been intimately involved with members, or ex-members, of the Salvadoran military or death squads, who desire and assert their independence and oppose male domination. The BIA in R-A- recognized that an asylum applicant may assert or define more than one social group.[25] Ms. M. asserts that there are several social groups of which she is a member, including but not limited to: 1) Salvadoran women who are married to members of the military, 2) Salvadoran women who hold beliefs contrary to established social norms (i.e. women who believe in equality in intimate relationships, women who oppose domestic abuse and male domination, and women who actively assert their independence), and 3) Salvadoran women who have “privileged” information about death squad activities. It is important to note that in R-A-, the BIA also stated that the existence of a “voluntary associational relationship” among social group members was not a requirement of social group under Board precedent. See R-A- at *28-29.
Unlike requests for asylum premised upon political opinion, social group claims are status-based and do not necessarily require a showing of the presence of an individual’s opinions or activities which spur the persecutor’s wrath or otherwise motivates the harm or persecution. See In re Kasinga, Int. Dec. 3278, 1996 BIA LEXIS 15, (BIA 1996) (concurring opinion). As is the case with Ms. M., “[I]t may be true that sometimes an individual woman’s political opinion may overlap or coexist with her membership in a group designated as a particular social group; however, that does not detract from the fact that social group membership is a status-based ground protected under the Act, just as religion or ethnicity.” Id. at *46.
Before the BIA’s decision in R-A-, “persecution on account of membership in a particular social group” was defined as “persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership.” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985). In Matter of Acosta, its earliest and most often cited case construing what constitutes a “particular social group,” the BIA ruled that a social group should be defined by common characteristics that its individual members either cannot or should not be expected to change. Gender plainly meets this definition, as Acosta itself acknowledged in stating that “sex” is an example of an immutable characteristic that defines a social group. See Acosta at 233. The BIA again defined a cognizable social group for the purposes of establishing an asylum claim that specifically includes “sex” as a potential defining characteristic in both In Re Kasinga, Int. Dec. 3278 (BIA 1996) and Matter of Fuentes, 19 I.&N. Dec. 658 (BIA 1988). In Kasinga, the BIA confirmed the applicability of the Acosta social-group-definition to cases dealing with gender and held that a Togolese woman who fled female genital mutilation (“FGM”) belonged to a social group defined by gender, in addition to other characteristics including ethnicity, intact genitalia, and opposition to the ritual practice of FGM. See In re Kasinga, Int. Dec. 3278, 1996 BIA LEXIS 15, *21-22, (BIA 1996). Even before Kasinga, the INS recognized that the Acosta definition of social group supported the notion “that ‘sex’ might be the sort of shared characteristic that could define a particular social group. INS Gender Considerations at 14.
Ms. M. satisfies the Acosta standard for persecution based on membership in a particular social group. The most basic common and immutable characteristic of the group in which Ms. M. is a member is gender. Ms. M. and the other Salvadoran women in this group are targeted for abuse based on the social belief that women must be subordinate to their partners, especially when such partners are members or ex-members of the military establishment. Women in Ms. M.’s group have suffered physical, mental, and emotional abuse like many women in El Salvador, but unlike women generally, who consider abuse a legitimate part of their relationships, women in Ms. M.’s group share the belief that they have a right to freedom from such abuse. Women in the group have expressed this belief by opposing their husband’s actions, asserting their independence bother verbally and non-verbally, and by seeking government intervention and protection from their partners’ abuse.
In re R-A- distinguished
In R-A-, the respondent articulated her membership in a social group as “Guatemalan women who have been intimately involved with Guatemalan companions, who believe that women are to live under male domination.” In re R-A-, Int. Dec. 3403 (BIA 1999), 1999 BIA LEXIS 31, *11. The BIA rejected this definition for several reasons, and outlined additional, defining factors for social group membership beyond the “immutable or fundamental individual characteristics” articulated in Acosta, insisting that members of the proposed social group must “understand their own affiliation with the grouping, as do other persons in the particular society.” Matter of R-A-, Int. Dec. 3403 at 17 (BIA 1999), 1999 BIA LEXIS 31, *29. Additionally, the BIA faulted R-A- for not showing that the harm suffered was important within the particular society, stating that “[w]hile not determinative, the prominence or importance of a characteristic within a society is another factor bearing on whether we will recognize that factor as part of a “particular social group” under our refugee provisions.” R-A- at *30. The BIA also stated that for a group to be viable for asylum purposes, there must be “some showing of how the characteristic is understood in the alien’s society, such that [the BIA] in turn may understand that the potential persecutors in fact see persons sharing the characteristic as warranting suppression or the infliction of harm.” Id. at *28.
Importantly, the BIA in R-A- did not suggest that it was diverging from, or overruling its own precedent. Although R-A- was not granted asylum, the BIA concluded that it “do[es] not read the literal language of the statute to actually foreclose a construction that would accord refugee status to battered spouse.” In re R-A- at *17. Further, the BIA stated that they “do not intend any categorical rulings as to analogous social group claims arising under any other conceivable set of circumstances.” Id. at *18.
As noted above, although other social group definitions potentially covering the respondent in R-A- were suggested, the BIA did not address whether there were any circumstances under which the various alternative proposals might qualify as a “particular social group.” See In re R-A- at *32. Therefore, the existing approaches to gender-based claims, articulated by the BIA itself in cases like Acosta, Kasinga, and Fuentes are still appropriate to Ms. M.’s claim.
Application to Ms. M.’s case
Ms. M.’s case can be distinguished from R-A- in several ways. Ms. M.’s case arises in the Fifth Circuit, which requires an evaluation of the applicant’s claim within the context of the political and social particulars of her case. Furthermore, the Fifth Circuit does not make “voluntary association” a central focus of its social group analysis unlike R-A-, which arose in the Ninth Circuit. In R-A-, there is no indication that the BIA examined in any meaningful way whether the respondent’s asserted social group was viewed as a discrete social group by the persecutor or the respondent’s society within the context of the respondent’s political and social circumstances. In the present case, however, as shown above and as required by the Fifth Circuit, evidence demonstrates that Ms. M., her persecutor, the military, the authorities who refused to help Ms. M., and others understood that Ms. M. was a member of a particular social group defined by their status as women who were involved with members of the military.
The BIA rejected R-A-’s definition of social group because, in the BIA’s opinion, she had failed to show that “spousal abuse” is an important societal attribute, that “women are expected by society to be abused, or that there are any adverse societal consequences to women or their husbands if the women are not abused.” Id. at *30. The BIA also rejected R-A-’s social group because unlike the evidence in Kasinga, which showed a pervasive practice of female genital mutilation among Togo’s Tchamba-Kunsuntu tribe, R-A- had not demonstrated that domestic violence is as pervasive in Guatemala as FGM is among the Tchamba-Kunsuntu tribe. See id. at *44. The evidence in Ms. M.’s case, however, shows that male power and control over wives, especially wives of men involved with the military, is still a central part of societal life in El Salvador. According to the organization OXFAM America, “70% of Salvadoran women suffer spousal abuse” and most women in El Salvador “consider abuse a legitimate part of their intimate relationships.”[26] Dr. C. R., expert in gender and Latin American studies, testified that in El Salvador, a common belief persists that domestic violence is a normal part of conjugal relations.[27] Compounding this general, societal prevalence of domestic violence is the additional violence and domination exhibited by members or ex-members of the Salvadoran military. Professor W.S. testifies that there was a “common practice by state forces during the civil war to demand submission and obedience from subject populations, as well as from family members of security forces personnel.”[28] Again, Dr. R. supports such testimony by stating that the abuse inflicted upon Ms. M. by her husband “reflect a classic pattern of abuse of women by members of the armed forces of El Salvador.”[29] Such evidence demonstrates that Salvadoran women, especially those intimately involved with partners with military affiliations, are virtually expected by society to be abused.
Ms. M. also fulfills the two additional requirements imposed upon social group membership by the BIA in R-A-. The evidence indicates, and Ms. M. will further testify at trial, that Ms. M. perceives herself to be a member of a particular social group, one recognized by her persecutor, and by her society at large. Women who have been involved in intimate relationships with members or ex-members of the Salvadoran military can easily be seen to understand their own affiliation with the group, as can other persons in Salvadoran society. Ms. M. has testified that “J.’s strong military connections made him a very dangerous man. Everyone was scared of him.”[30] Additionally, Ms. M. states that “[t]he villagers knew how he beat [her] by they never did anything. They were scared of him and his brother who was also in the military and besides, they believed, like the rest of the country, that husbands had the right to treat wives anyway they wanted.” Id. As a woman intimately involved with a member of the Salvadoran military, Ms. M. recognized that, in addition to the general unwillingness of the Salvadoran government to prosecute domestic violence, the abuse Ms. M. suffered was even more likely to go unpunished because of her membership in the particular social group. The reluctance of Ms. M.’s fellow villagers to intervene in any way to stop the abuse illustrates that other persons in the society also recognized a particular grouping and were even more reluctant to help Ms. M.; the villagers knew of her husband’s military connection and were scared of him because of it. Members of the military who came to threaten and harm Ms. M. when she tried to leave her husband recognized her as a member of a group; they realized that they could harass and harm her with impunity. Even the police to whom Ms. M. went for protection recognized the group; they refused to help her, justifying their actions, in part, because they knew her husband was in the military.
The second requirement stemming from R-A- is the requirement that the persecution of the particular group is itself an important societal attribute. Evidence supports the notion that spousal abuse is societal norm, often acquiesced in and even encouraged within Salvadoran society. A report published by the Universidad Centroamericana confirms the dominance of interfamily, especially domestic, violence in Salvadoran society in the following excerpt:
The man, socially and culturally at an
advantage, exercises power in daily relationships within the
family. This is a power held out by a long tradition in the
cult of the masculine gender, by the biologically natural
physical strength which is greater than that of feminine strength
and which, for an economic and labor-based culture which it
supports, among other things. The man is, as a result, one of the
principal agents of violence inside the family. He, in order to
impose his power, is allowed —and the women have permitted
it— to use his strength because “it ought to be clear
who is the head of the family.” Family violence is a
physical, social, and symbolic process that represents the
history of the domination of men over women.[31]
Ms. M.’s Case Satisfies The “On
Account of” or “Nexus” Requirement
Supreme Court and Fifth Circuit holdings
To qualify for asylum, an applicant must also show that the persecution he or she suffered or fears is on account of a statutorily-protected ground. See Elias-Zacarias at 481. The applicant must present some direct or circumstantial evidence that the persecutor is motivated by a quality possessed by the applicant, which is recognized by the INA. Id. In an asylum claim based on political opinion, for example, an applicant must show that the persecutor either knew or could reasonably discover his or her political views and would punish him or her for them. Id. In Rivas-Martinez, the Fifth Circuit adopted what it called a “common sense” approach to the application of Elias-Zacarias. See Rivas-Martinez at 1143, 1148. According to the Fifth Circuit, the BIA’s decision denying asylum to Rivas-Martinez had impermissibly rested on a finding that the respondent did not have a reasonable fear of persecution on account of political opinion, because she had not articulated her political opposition directly to her persecutors, and the persecutors had not articulated to her their intent to persecute her for her politics. The Fifth Circuit found that the BIA’s decision was flawed because it ignored the particulars of the respondent’s social and political reality. See id. at 1147.
Justice Department guidelines
regarding nexus in gender-related asylum claims, including those
based on domestic violence
The Justice Department, through its INS Gender Guidelines for Asylum Officers Adjudicating Asylum Claims from Women, which provide guidance to adjudicators to gender-related asylum claims, explains that for the purposes of asylum, “harm must be inflicted in order to punish the victim for having one or more of the characteristics protected under the statute.” Gender Guidelines at 10, citing Matter of Acosta, 19 I.&N. Dec. at 226. The Guidelines emphasize that “on account of” refers to harm inflicted because of the victim’s beliefs or characteristics, not the persecutor’s. Id. citing Elias-Zacarias v. INS, 112 S.Ct. 812 (1991).[32] The Guidelines reiterate the “need for an adjudicator to carefully ascertain all the facts surrounding an allegation of persecution in order to assess whether there are indicia that the act was committed or threatened on account of a protected characteristic.” Id. at 11.
Like the Fifth Circuit in Rivas-Martinez, the Service recognized, post Elias-Zacarias, that the determination that a persecutor is motivated by a statutory basis is not dependent on an explicit articulation of motive by the persecutor. The INS Office of General Counsel observed that:
“When…punishment is
sufficiently severe as to constitute persecution…a
persecutor should be regarded as acting ‘on account of’
one of the five statutory characteristics when he is motivated by
a desire to eliminate or punish persons having this
characteristic.” INS General Counsel Legal Opinion
(January 19, 1993), reprinted in 70 Interpreter
Releases 498, 503.
In the domestic violence context, escalation of violence against family members as they increasingly assert their rights is evidence that the persecutor is motivated by their political opinion. Experts have only recently begun to understand that domestic violence is often motivated by a man’s desire to punish his wife for real or perceived challenges to the exercise of rights and privileges to which he believes he is entitled. See, e.g., R. Cook, ed., Human Rights of Women: National and International Perspectives, University of Pennsylvania Press (1994). Thus, it is understandable that this form of and motive for persecution would not be as well-developed in asylum case law as other forms of motivation. However, that should not mean that it cannot be now developed, especially in this jurisdiction given the Fifth Circuit’s emphasis on considering the realities of human behavior, the social and political particulars of an asylum applicant’s circumstances; the plain meaning of “political”; and the decisions which make clear that persecution on account of social group includes harm motivated by family membership.
BIA holdings
“Mixed Motive”
The BIA in In re S-P-, Int. Dec. 3287 (BIA 1996), 1996 BIA LEXIS 25, recognized the validity of “mixed motive” persecution and stressed that adjudicators must be especially cognizant of the fundamental humanitarian concerns of asylum law, and avoid placing an unduly harsh burden of proof on the applicant. See id. at *16. Accordingly, the BIA stated that “the alien does not bear the unreasonable burden of establishing the exact motivation of a ‘persecutor’ where different reasons for actions are possible.” In re S-P-, at *23, citing Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988). The BIA went on to state that the plain meaning of the phrase “persecution on account of the victim’s political opinion” does not mean persecution solely on account of the victim’s political opinion and that asylum should be granted if the evidence reasonably establishes that at least one of the motives was related to the statutory basis. See In re S-P-, at *23. Thus, a persecutor can have mixed motives in persecuting a victim. Id.
In re R-A-‘s requirements for
proving “nexus” are more restrictive than Fifth Circuit
requirements
The BIA found in R-A- that the applicant had failed to demonstrate that her husband was motivated to harm her because of her political opinion or social group. See In re R-A- at *19. In arriving at this conclusion, the BIA emphasized that the applicant had testified inter alia that her husband often abused her “for no apparent reason at all.” Id. at *51. The BIA characterized the violence inflicted by the applicant’s husband as arbitrary and occurring in “myriad situations,” and found that the applicant had failed to establish a nexus between her husband’s persecution of her and her political opinion or social group because the applicant never testified that she understood his abuse to be motivated by her political opinion or membership in a social group. Id. at *24, *26. The BIA, moreover, indicated that a nexus between the violence and a protected category could not exist because “her husband never articulated such motivation….” Id.
In R-A-, the BIA’s evidentiary requirements for proving nexus were more restrictive than those required by the Fifth Circuit. The Fifth Circuit in Rivas-Martinez pointed out that although the adjudicator must focus on the persecutor’s motives in evaluating evidence in an asylum claim, it is not required that the persecutor have explicitly articulated such motivation to the victim.[33]
Application to Ms. M.’s case
Evidence supports the conclusion that domestic violence against women is frequently motivated by the man’s desire to exert and maintain power over his “woman” and to punish her for real or perceived challenges to his power. The United Nations Report of the Committee on the Elimination of Discrimination Against Women accurately explains that a central purpose of domestic violence committed by men is to maintain power over the victim because of a strong belief that the victim must remain subordinate to the male head of household. The Report notes that:
“[d]omestic violence exists as a
powerful tool of oppression. Violence against women in
general, and domestic violence in particular, serve as essential
components in societies which oppress women, since violence
against women not only derives from but sustains the dominant
gender stereotypes and is used to control women in the one space
traditionally dominated by women, the home.”[34]
Experts explain that part of the dynamic of domestic violence is that “women’s power triggers attack….Through violence, men seek both to deny and destroy the power of women.” R. Copelon at 120. “Rape and sexual assault are generally understood today…as acts of violent aggression that stem from the perpetrator's power over and desire to harm his victim.” Angouchera v. INS, 106 F.3d 781, 793 (7th Cir. 1997) (Rover, J. concurring).[35] A recent report from the John Hopkins School of Public Health also explains the dynamics of domestic abuse as follows:
Many cultures hold that men have the
right to control their wives’ behavior and that women who
challenge that right—even by asking for household money or
by expressing the needs of the children—may be punished….Justifications
for violence frequently evolve from gender norms—that is,
social norms about the proper roles an responsibilities of men
and women….Typically, …[w]omen are expected to tend the
house and mind the children and to show their husbands obedience
and respect.”[36]
Societal norms in El Salvador conform to this pattern as well. Professor M.D., expert in Latin American politics, states that “El Salvador is a notably chauvinistic and patriarchal society….Informally, women are notoriously subordinated to men.”[37] “The machista cultural context of El Salvador perpetuates sexist violence as acceptable male behavior. At the same time, there are indications that the armed conflict that lasted for 12 years…aggravated the brutality of masculine violence against women. War, with its production of all sorts of violence and impunity, blessed by the ineffective judicial system, have given men a new advantage in abusing women.”[38] Whereas the BIA in R-A- found that the record did not indicate that R-A-‘s persecution represented desired behavior within Guatemala or that the Guatemalan government encouraged domestic abuse, evidence in the present case indicates that within the subculture of the military and Salvadoran society in general, domestic violence as a means of subordinating female partners is acceptable and even encouraged within society.
Such evidence supports Ms. M.’s claim that her persecutor was motivated by her expression of her political opinion, her imputed political opinion, and by her membership in a particular social group. The evidentiary record in Ms. M.’s case meets the standards set out by the Supreme Court, Fifth Circuit, BIA, and Justice Department guidelines. The evidence shows that within the political, social, and cultural context of domestic violence as it exists in El Salvador, Ms. M.’s persecutor punished her at least in part, both for expressing her political views or those he imputed to her, and because she is an independent women who is intimately involved with a member or ex-member of the Salvadoran military. Ms. M.’s husband punished her for verbally and non-verbally expressing her political beliefs verbally and non-verbally. Ms. M. opposed her husband’s absolute domination and abuse in a number of ways: she talked back to him, stood up to him, attempted to report his behavior to the authorities, and tried to file for divorce. Each time Ms. M. engaged in this kind of behavior, effectively expressing her opinion that, contrary to societal norms in El Salvador, a man should not have the right to batter his wife and require complete subservience to him, the abuse escalated. Thus, unlike R-A-, who testified that “she had no opinion of why her husband acted the way he did,”[39] Ms. M. recognized that much of her husband’s abuse resulted from her attempts to assert herself and express her opinion.
Ms. M.’s husband also punished Ms. M. because of her social group. Ms. M. is an independent, non-submissive women who had been intimately involved with an ex-member of the Salvadoran military and death squads. Her husband abused her because unlike other women intimately involved with members of the military, she did not acquiesce to her husband’s abuse. Additionally, her husband realized that as a women married to a member of the military and death squads, abuse directed against her would go unpunished. Ms. M. was persecuted because she was a member of this group, and because her husband knew he could abuse her with impunity.
The Government of El Salvador is
Unwilling and Unable to Protect Ms. M.
An asylum applicant must prove that she has been or will be victimized either by the Government or by persons the Government is unwilling or unable to control. In re Kasinga, Int. Dec. 3278 (BIA 1996); see also INS Guidelines at 17. The record here compels the conclusions that the Government of El Salvador is arguably unable, and definitely unwilling to control the violence that has victimized Ms. M.. Ms. M. was helpless to prevent or cease her husband’s persecution of her. Influential members of Ms. M.’s village ignored the abuse. The police also refused to protect her. Despite describing the numerous incidents of abuse and detailing her husband’s threats against her life to the police, they refused to arrest or warn him.[40] Instead, the police told Ms. M. that they could not do anything because her husband was in the military. In his affidavit, Professor W.S. supports Ms. M.’s testimony by confirming that “[v]iolence against family members of security forces personnel, and particularly against their wives or women they were intimate with, was common, and seldom prosecuted.”[41]
Despite her husband no longer officially being a member of the military, he maintains ties with other ex-members of the military. Professor W.S. testified that:
Although the parties threatening the
petitioner are no longer members of the state, they most likely
enjoy protection from the current government. The new
National Police force…has been unable to control criminal
organizations operated by former security forces personnel, and
has been particularly unresponsive to crimes and threats against
women.[42]
The 1999 State Department Country Report on Human Rights Practices for El Salvador also confirms the weakness of the Salvadoran judicial system and impunity enjoyed by certain members of society, including those with government or military connections:
Impunity for those who are politically,
economically, or institutionally well-connected continued….The
continued systemic weaknesses in the criminal justice system
contribute to this impunity. Such impunity might take the form of
a reluctance on the part of authorities to pursue aggressively
and to conclusion allegations involving acts of violence or other
major crimes. There is a clear perception among the public that
those who are well-connected…often have impunity with
respect to the country's civil and criminal laws. Public
suspicion that special groups receive special treatment under the
law clearly diminishes confidence in the justice system….The
implementation of judicial reforms continued to create confusion
and uncertainty among police, prosecutors, public defenders, and
the courts. Inadequate police coverage (due to limited resources
and lack of sufficient personnel) and intimidation (especially by
gangs) of victims and witnesses made it difficult to identify,
arrest, and prosecute criminals, diminishing public confidence in
the justice system.[43]
Ms. M.’s husband’s military connections and violent nature also contribute to the Salvadoran government’s inability to provide any meaningful protection to Ms. M.. As Ms. M. testified in her affidavit, she was unable to get a divorce from her husband because any witnesses that could come forward and testify against him are fearful of him and consequently refuse to testify.[44] As Professor S. testified, “[Ms. M.] is unable to avail herself of legal protections because of her husband’s ability to intimidate potential witnesses and attorneys.”[45]
Even though El Salvador passed the Law Against Family Violence in 1996,[46] victims of domestic violence still are afforded little, if any, meaningful protection. The mere existence of laws does not ensure that authorities charged with enforcing them will change their attitudes about domestic violence and women, the principal victims of domestic violence. Reporting on the current state of attitudes regarding domestic violence, the Central America Report published weekly by Infopress Centroamericana, recently reported:
…attitudes are so institutionalized
that, in some cases, it is not even acknowledged that the problem
[of domestic violence] exists, or that the problem is a public
one. Authorities continue to promote the resolution of
problems within the family, and the result is that victims are
not encouraged to denounce their attackers….In El Salvador…the
law stipulates the creation of a special police division to
handle cases of domestic violence. However, so far the
police have only established a broad Family Department.[47]
Professor M.D. also testified that:
Such problems as bigamy and spousal or
child abuse have been widespread and little redressed in the
legal system. In the immediate post-Peace Accords period,
legal and constitutional reforms were put into place to
strengthen the rights [and] protections of women and children.
However, El Salvador has been engulfed in a spiraling crime waver
over the past five years, which has meant that in practice the
government and courts have devoted little of their scarce
resources to implementing these new laws.[48]
Francisco Navarro, expert on family and criminal law in El Salvador, also confirmed the danger faced by Ms. M. when he testified that “as a victim of domestic violence, if forced to return to El Salvador, [Ms. M.] has little change of being effectively protected against future abuse.”[49] The evidence supports the conclusion that the government of El Salvador is unable and unwilling to control individuals like Ms. M.’s husband when they victimize their spouses and engage in domestic abuse.
Ms. M. Should be Granted Asylum as a
Matter of Discretion
If an applicant has demonstrated a well-founded fear of persecution, “the danger of persecution should generally outweigh all but the most egregious adverse factors.” Matter of Pula, 19 I. & N. Dec. 467 (BIA 1987). Asylum should be denied as a matter of discretion only under exceptional circumstances. Ms. M. has demonstrated past persecution and a well-founded fear of future persecution on account of her membership in a social group and her related political opinion. Because of the strong factors present in Ms. M.’s case, and the policy of granting applicants relief based on humanitarian grounds, a favorable exercise of discretion is warranted.
Ms. M. Qualifies for Relief under the
Convention Against Torture
A. Torture
The United States has ratified the Convention Against Torture (“CAT”), which prohibits the deportation of asylum applicants where there are “substantial grounds” for believing that they will face severe pain and suffering with government acquiescence or consent.[50]
In order to qualify for withholding under the CAT, the applicant must satisfy the definition of torture in Article 1 of the CAT, which defines torture, in relevant part, as the following:
any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as…punishing him for an act he
or a third person committed or is suspected of having committee,
or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or
acquiescence of a public official or other person acting in an
official capacity.[51]
Most significantly, under the CAT, an individual does not need to prove that she was tortured or fears torture “on account of” a statutory ground such as a particular social group or political opinion.[52] No reason or causality for the torture is needed under the CAT.
As shown in detail throughout this brief, Ms. M. would face severe pain and suffering if she is forced to return to El Salvador. Her husband has severely beaten her, raped her, degraded her through his actions and words, shot at her, and threatened, and even tried, to kill her on numerous occasions. Her husband’s torture was intentionally inflicted on Ms. M. for her opposition to his domination over her and beliefs that he can abuse her with impunity. Under the CAT, past torture is indicative of the future possibility of torture.[53] Additionally, her husband has expressed that he would abuse or kill her in the future.
B. Inflicted by the Government or Acquiescence of a Public Official
The CAT requires that torture be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”[54] The Senate resolution enacting the CAT expressed the understanding that in order for an act to be taken with the acquiescence of a public official, the official must “prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.”[55] The interim regulations have adopted this definition of acquiescence.[56] While the interim regulations provide little guidance in interpreting this definition of acquiescence, the Senate report to its resolution of advice and consent clarified that “awareness” includes “both actual knowledge and ‘willful blindness.’”[57] Thus, actual awareness of the torture is not required. See Rosati, Kristen, "Finally! U.S. Law Implements Article 3 of the U.N. Convention Against Torture: An Analysis of the Legislation and Interim Regulations," AILA Immigration and Nationality Law Handbook, Vol. III (1999-2000).
Ms. M. has brought her plight to the attention of the Salvadoran authorities and government but they have refused to act, and are incapable of acting, to protect her. The Senate resolution enacting the CAT expressed the understanding that in order for an act to be taken with the acquiescence of a public official, the official must, prior to the activity constituting torture, have awareness of the activity and thereafter breach his legal responsibility to intervene to prevent such activity.[58] Given the conclusions that the crisis of the justice system in El Salvador continue to grow, that domestic violence is still perceived to be a “private matter” in which the government need not intervene, and the fact that Ms. M. has tried without success to avail herself of government protection against her persecutor, the government’s acquiescence in persecution by domestic violence is apparent. The governmental authorities to whom Ms. M. reported her abuse had direct knowledge of the persecution, yet disregarded the legal obligation they had to intervene to prevent such torture. The government is therefore complicit in the torture perpetrated on her by Ms. M.’s husband and has effectively given its consent for such torture to continue and certainly turned a blind eye to such abuse. Therefore, if Ms. M.’s application for asylum is denied and a final order of deportation is entered, the court should grant Ms. M. relief under the Convention Against Torture.
Conclusion
For the reasons stated above, A.M.’s
application for asylum should be granted and withholding of
deportation is mandated. If Ms. M. is not granted asylum, a
final order of deportation should be withheld under the
Convention Against Torture. In the alternative, because
there is a request for certification for the Attorney General to
review the decision of the BIA in In re R-A-, any holding
should be held in abeyance until such request is decided.
Respectfully
submitted,
Kirstin Silberschlag
Student Attorney
University of Texas School of Law
Immigration Clinic
727 East Dean Keaton Street
Austin, Texas 78705
[1] In re R-A, Int. Dec. 3403
(BIA, June 11, 1999).
[2] The Board clarified:
“…we do not read the literal language of the [Refugee
Act] actually to foreclose a construction that would accord
refugee status to a battered spouse. In this case, we look
principally to the facts to resolve the ‘political opinion’
and ‘social group’ claims….” In re R-A-,
Int. Dec. 3403 at 9; see Section 101(a)(42(A) of the
Immigration and Nationality Act; 8 U.S.C. § 1101(a)(42(A)
(1994).
[3] The Board did find that the abuse
suffered by the applicant rose to the level of harm sufficient to
constitute persecution, and that the Guatemalan government was
unwilling or unable to provide meaningful assistance to protect
her from persecution. In re R-A- at 11.
[4] The BIA’s decision in In re R-A-,
a case arising under the Ninth Circuit, contained no discussion
of or reference to Fifth Circuit precedent.
[5] See 8 U.S.C. § 1101(a)(42)(A)
(1999).
[6] See e.g., discussion in
P. Goldberg, “Anyplace But Home: Asylum in the U.S. for
Women Fleeing Intimate Violence,” Cornell Intl. Law
Journal (1993); R. Copelon, “Recognizing the Egregious
in the Everyday: Domestic Violence as Torture,” 25 Columbia
Human Rights Law Review 291 (1994); Isabel Marcus, “Reframing
Domestic Violence: Terrorism in the Home” in The Nature
of Private Violence: The Discovery of Domestic Abuse 11
(Martha Albertson & Roxanne Mykitiuk eds., 1994).
[7] See Phyllis Coven, U.S. Dep’t
of Justice, Considerations for Asylum Officers Adjudicating
Asylum Claims from Women, INS Memo (May 26, 1995) (hereinafter
“INS Gender Guidelines”)
[8] INS Gender Guidelines, at 4; While
the BIA in In re R-A- did not specifically rely on the INS
Gender Guidelines, the majority stated that the guidelines
were nevertheless instructive. In re R-A- at *16.
[9] Respondent’s Affidavit, at 3.
[10] Respondent’s
Affidavit, at 2.
[11] Id.
[12] Id.
at 4.
[13] Id. at 3.
[14] The Fifth Circuit
criticized the BIA for determining that because the petitioner
was not mistreated during two episodes of detention to such a
degree that his experiences would constitute “persecution,”
he should not fear persecution by the Sudanese government in the
future…The 5th Circuit called such reasoning
“unpersuasive.” See Abdel-Masieh, 73 F.3d
at 584.
[15] Stanley Affidavit at 1-2.
[16] Stanley Affidavit at 3.
[17] This Court is bound by
Fifth Circuit precedent rather than the holding in In re R-A-.
[18] The BIA simply says,
without explanation or analysis, that the Respondent’s
argument “seem[s] to us to be akin to the analysis which the
Supreme Court later did not accept (in Elias-Zacarias) as
conclusive of political opinion persecution.” Id.
at 13.
[19] In re R-A- at *26.
[20] In Lazo-Majano,
the Ninth Circuit ruled that the belief that a woman has the
right not to be dominated by a man constitutes a political
opinion, even though that domination may be expressed in a
one-on-one context. See Lazo-Majano v. INS, 813 F.2d
1432 (9th Cir. 1987).
[21] At least one court
has explicitly recognized that opposition to male domination of
women constitutes a political opinion. Fatin v. INS,
12 F.3d 1233, 1242 (3rd Cir. 1993) (acknowledging that
there is “little doubt that feminism qualifies as a
political opinion within the meaning of the relevant statutes.”)
[22] For example, most,
if not all, claims under the Refugee Act were initially based on
persecution by governmental authorities. Yet, courts began
to recognize that granting asylum to individuals fleeing
persecution from non-governmental groups was also consistent with
the Act. See, e.g., Matter of McCullen, 19 I&N
Dec. 90, 96 (BIA 1984); In re Kasinga, Int. Dec.
3278 (BIA 1996); INS Guidelines.
[23] R. Copelon, “Intimate
Terror: Understanding Domestic Violence as Torture,” in R.
Cook, ed., Human Rights of Women: National and International
Perspectives, University of Pennsylvania Press (1994).
[24] Buel Affidavit at 3.
[25] The BIA in R-A-,
however, stated that the did not at the time need to address
whether there are any circumstances under which the various
alternative proposals might qualify as a “particular social
group” because each of them failed under that particular
record under the “on account of” requirement. See
R-A-, fn2 at *32.
[26] Frieda Flint & Portia
Johnson, Women’s Lives and Domestic Violence in El
Salvador: Based on an interview with Encarnacion Guardo
Castellanos, HERA, v. 15 no. 3, 4 (April 30, 1996). See
also, generally, documents attached with Respondent’s
application.
[27] See Ready
Affidavit at 2.
[28] Stanley Affidavit at 2.
[29] See Ready
Affidavit at 2.
[30] Respondent’s
Affidavit at 2.
[31] J. Simeon Canas, The
Current State of Violence in the Family, Proceso 833,
Universidad Centroamericana (December 2, 1998); found at http://168.243.1.4/publica/proceso/proci833.html#society.
A copy of The Current State of Violence in the Family is
attached with Respondant’s supporting documentation.
[32] The Guidelines
also recognize that characteristics imputed by the persecutor to
the victim may also serve as motivation for the persecutor’s
infliction of harm on the victim. Id.
[33] The Fifth Circuit
criticized the BIA for making the “impermissible jump”
to conclude that because the petitioner proffered a non-political
excuse, her persecutor’s could not have known of her
political opposition and therefore could not have persecuted her
for her opinion. See Rivas-Martinez, 997 F.2d at
1147.
[34] U.N. Convention on the
Elimination of Discrimination Against Women, 47th
Sess., Supp. No. 38, para. 26, at 8, U.N. Doc A/47/38 (1992).
[35] The Seventh Circuit
granted the petition for review, vacated the Board's order
denying asylum, and remanded for further proceedings “because
[the Seventh Circuit was] not confident that the Board fully
considered vital aspects of Angoucheva’s claim.” Angouchera
v. INS, 106 F.3d at 783.
[36] Population Reports,
Population Information Program, Center for Communication
Programs, Johns Hopkins School of Public Health, Series L, No.
11, Volume XXVII, Number 4, December 1999.
[37] Dodson Affidavit at 1-2.
[38] El Salvador: Speaking up,
Speaking Out, Nora Franco, Latin American and Caribbean Women’s
Health Network, 1996.
[39] In re R-A- at *7.
[40] Id.
[41] Stanley Affidavit at 2.
[42] Id.
[43] 1999 Country Reports on
Human Rights Practices, Released by the Bureau of Democracy,
Human Rights, and Labor, U.S. Department of State, February 25,
2000.
[44] Respondent’s
Affidavit at 5.
[45] Stanley Affidavit at 3.
[46] Law Against Violence
Within the Family, Decree No. 902, Diaro Oficial, v. 333, no. 241
(1996). A copy of the Law Against Violence Within the
Family is included with Respondent’s supporting
documentation.
[47] Central America Report,
Infopress Centroamericana, vol. XXVI no. 2 (January 15, 1999).
[48] Dodson Affidavit at 1-2.
[49] Navarro Affidavit at 1.
[50] United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment
or Punishment, Art. 1, 3 (1985); 8 CFR § 208.16(c)(2).
[51] Id.
[52] Id.
[53] 8 CFR § 208.16(c)(3)(I).
[54] See Convention
Against Torture, art. 1.
[55] See 136 Cong.
Rec., S17486-92, S17491-92 (Daily ed. Oct. 27, 1990)
[56] See 8 C.F.R. §
208.18(a)(7).
[57] See S. Exec. Rep.
No. 101-30 at 9, 101st Cong., 2nd Sess. 6
(1990).
[58] See 136 Cong. Rec. s17486-92 (daily ed. Oct. 27, 1990).