Asylum and Gender--Matter of R-A--BIA Decision

Practice Pointers

National Immigration Project of the National Lawyers Guild and
the American Immigration Law Foundation*

INTRODUCTION

On June 11, 1999, the Board of Immigration Appeals (hereinafter "Board") issued a precedent decision in an asylum claim where the applicant, a woman from Guatemala, raised domestic violence as the basis of her request. The Board did find that the abuse she suffered at the hands of her husband rose to the level of persecution but ruled, in an en banc decision split 10 to 5, that the applicant, Rodi Alvarado Pena, failed to establish that the harm was committed "on account of" either her political opinion or her membership in a particular social group. The social group identified by the Immigration Judge ("IJ"), who granted the claim, was defined as Guatemalan women who have been involved intimately with Guatemalan male companions who believe that women are to live under male domination. The IJ also found persecution on account of Ms. Alvarado's political opinion of resistance to male dominance and violence. The Board rejected both of these claims and dismissed any other configuration of the social group that had been articulated by Ms. Alvarado's counsel in a footnote.

The Board rested it's ruling on their view that Ms. Alvarado did not establish the nexus that the harm was perpetrated against her "on account of" any of the five grounds. The dissent strongly disagreed with the Board's finding, arguing cogently that there was no authoritative basis for distinguishing between this case and Matter of Kasinga, Int. Dec. 3278 (BIA 1996). In granting that claim, the Board recognized both the gendered nature of the harm, in that case female genital mutilation (hereinafter "FGM"), the social and cultural context in which it would be perpetrated, as well as the treatment of the practice of FGM in international human rights law.

This Practice Pointers, consisting of short bullet points and a longer narrative section, is designed to assist practitioners working on gender-based asylum claims following the Board's decision in Matter of R-A-, Int. Dec. 3403 (BIA 1999). At the outset, it is important to note that many experienced advocates, practitioners and academics strongly disagree with the reasoning, findings and ruling of the Board in this decision. We also realize that disagreement with a precedent decision is not enough when presenting claims before IJs and Asylum Officers ("AO"). What follows is a brief discussion of some of the flaws with the Board's decision as stated by some advocates and some concrete practice pointers in presenting claims following this decision.

Some have argued that the reasoning, findings and conclusions of the Board are misguided, if not outright wrong for a variety of reasons. We briefly name some of them below. For a fuller discussion of the stated flaws in the Board's decision in Matter of R-A-, see Karen Musalo, "Matter of R-A-: An Analysis of the Decision and its Implications," 76 INTERPRETER RELEASES 1177 (August 9, 1999); and Deborah E. Anker, et al., "Defining 'Particular Social Group' in Terms of Gender: The Shah Decision and U.S. Law," 76 INTERPRETER RELEASES 1005 (July 2, 1999). Given the flaws in Matter of R-A- as identified by some advocates, we suggest focusing on the below summary of the more important aspects of this document.

PRACTICE POINTERS FOR ASYLUM CLAIMS BASED ON DOMESTIC VIOLENCE Define the term domestic violence, specifying how it is being carried out and define the relationship between the perpetrator and the victim(e.g. spouses, siblings, in-laws, etc.). Define domestic violence as a human rights abuse and cite to relevant international instruments. A good website for getting relevant international sources is www.unhchr.ch/html/menu2/7/b/mwom.htm. Establish whether the country of origin is a signatory to or has ratified international instruments that cover types of mistreatment that would be included in the definition of domestic violence. If the country of origin is a signatory to the international instrument(s) cited, argue that the government has a duty to protect against domestic violence and breached this duty. If the country of origin is not a signatory to the international instrument(s) cited, argue that the government has shown a reluctance to abide by universal human rights standards with respect to domestic violence. Cite to other opinions, including Immigration Judge, district court, circuit court and non-U.S. cases that have involved gender claims whether or not they were granted and show similarities to your case if the ruling or dicta support your case; the cases would include those involving: women who act against social mores rape as a method of persecution honor killings coercive family planning sexual orientation forced marriage female genital mutilation (FGM) Show any level of government involvement in the mistreatment feared by your client. Cite to any national legislation of the country that involves the status of women if your client is a woman victim of domestic violence and show relevance to your case. Cite to any national legislation regarding marriage or cite to the Family Code if your client is married and show relevance of particular provisions to your case. Cite to any national legislation regarding family planning and show relevance to your case. Establish any and all five grounds of the refugee definition that apply to your client and establish that discrimination which rises to the level of persecution occurs based on the grounds of: Race Religion Nationality Particular social group Political opinion Avoid establishing only membership of a particular social group as being the ground for persecution without reference to any of the other grounds. When invoking race, ensure to explain whether you are using the term race as it is understood in the particular cultural context of your applicant's country of origin, point out any racial differences in the household or establish that the government does not protect members of your applicant's race in the manner it may protect other races. Also, you may show how those who are intimately involved with persons of a particular race are treated. When religion is the ground invoked for persecution, ensure to specify whether the laws of the country of origin are based on a specific religion's principles, how the government and society at large view religious leaders or teachers and describe how the religious principles in question impact your client. Also, specify whether your applicant is being persecuted on account of religion because of how or whether she chooses to practice the religion in question. When invoking nationality, ensure to explain how the term is being used, whether wives can obtain the nationality of the husband, any nationality differences in the household or establish that the government does not protect members of your applicant's nationality in the manner it may protect a group which may be considered another nationality or national group. Also, you may show how those who are intimately involved with persons of a particular nationality or national group are treated. Establish how the asylum applicant expressed opposition to domestic violence and articulate the views that were being expressed through this opposition. Show whether and how the asylum applicant was expressing her view on the status of women, the obligations of governments to women and victims of domestic violence and the status of marriage. When identifying social group, it can be a social group to which the asylum applicant belongs or a social group consisting of family members of or persons intimately involved with persons of a particular social group. The asylum applicant can, for example, be a member of a particular social group consisting of women of a particular socioeconomic status, education, or current or former profession (reference to profession should also refer to trade union activities) or persons intimately involved with someone of a particular socioeconomic status, education or profession (including military service).

THE BIA DECISION IN MATTER OF R-A-

Some advocates have identified a number of grave problems with the decision of the Board in Matter of R-A-. One central concern is that the Board completely fails to understand domestic violence as a social phenomenon, occurring in the context of social acceptability, personal, social and political power imbalances, and with little or no recourse through the legal system--neither prosecutorial nor protective. The Board does not analyze domestic violence in any but the most rigid, limited and uninformed framework. Further, the Board fails to recognize the significance of resisting or attempting to resist domestic violence as an expression of a contrary opinion. Nor does it comprehend the high level of risk in such expression. One of the commonly understood factors of domestic violence is that it escalates when the woman leaves the abusive partner or otherwise takes steps to undermine his ability to abuse her. Resisting the violence is one way of attempting to undermine or prevent the abuse and so the abusive conduct often escalates in the face of this resistance.

The Board was highly dismissive of the failure of the State, in this case Guatemala, to provide protection. It assumed this posture without recognizing or acknowledging the particularly vulnerable status of women in abusive relationships and the essential role State and community protection play for these women and their children.

One of the aspects of this decision which advocates have found puzzling is that the Board lays out new criteria for determining whether a particular social group exists. It specifically states in the decision that it is not overruling prior precedent, in particular the long-standing central decision of Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), and further states explicitly that these new elements are "not required" to be met. Additionally, the court recognized that the defined group may contain an immutable or fundamental individual characteristic. However, the court further stated that "for the group to be viable for asylum purposes, we believe there must also be some showing of how the characteristic is understood in the alien's society, such that we in turn may understand that the potential persecutors in fact see persons sharing the characteristic as warranting suppression or the infliction of harm." Matter of R-A-, Int. Dec. 3403, 14 (BIA 1999). It then goes on to measure the claim against these "optional" criteria and finds it fails to meet them. The factors the Board lays out include whether victims of spousal abuse view themselves as members of the defined particular social group; whether their male oppressors see their victimized companions as part of this group; and whether the characteristic of being abused is an important one within Guatemalan society. Id. at 15. (persecutor has or may persecute other women; whether the social group is recognized by society as a whole; and whether the persecutor has expressly stated to his victim the reason for his abuse).

Despite the language of its own decision in Matter of Kasinga, the language in the INS Considerations for Asylum Officers Adjudicating Asylum Claims from Women (hereinafter "INS Gender Guidelines"), and other asylum case law, the Board failed to analyze the claim in a human rights framework. In addition, it virtually ignores comparative law decisions, dealing with a prominent, recent and legally and factually indistinguishable decision by the House of Lords of Great Britain in a footnote. Islam (A.P.) v. Secretary of State for the Home Department, Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.), [1999] 2 All ER 545 (House of Lords).

We recognize that as a practitioner you cannot simply challenge a precedent decision of the Board as erroneous and expect to prevail. We also believe that the flaws in the Board's ruling are significant and should be considered and addressed by practitioners when fashioning new claims which raise similar issues and concerns. In addition, we offer the following pointers which we hope will assist you in preparing your own cases, whether they be before IJs or AOs.


1. GENDER-BASED ASYLUM CLAIMS CONTINUE TO BE VIABLE

Bear in mind that although domestic violence is an important category of gender-based asylum claims, it is by no means the only form of gender-based violence or human rights violation against women. The decision in Matter of R-A- is very specifically limited to the facts of the case, which raises as the sole basis of her claim the violence Ms. Alvarado experienced at the hands of her husband. Any other basis for an asylum claim, no matter how particularly or singularly it may raise gender-based persecution, is clearly distinguishable from this decision. You should raise any such claims with confidence and, depending on the particular facts of any given case, without fear of making a frivolous claim.


2. USE A HUMAN RIGHTS FRAMEWORK

It is well established that asylum claims should be assessed using a human rights framework. A number of U.S. courts, the BIA, and many IJs have either explicitly or implicitly ruled that serious violations of human rights constitute persecution. 8 CFR §280.13 (1999). See U.S. Department of Justice, Immigration and Naturalization Service, The Basic Law Manual: U.S. Law and INS Refugee/Asylum Adjudications 24 (1994); see also Fatin v. INS, 12 F.3d 1233, 1242 (3d Cir. 1993) ("[W]e will assume for the sake of argument that the concept of persecution is broad enough to include governmental measures that compel an individual to engage in conduct that is not physically painful or harmful, but is abhorrent to that individual's deepest beliefs."); Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996); Deborah E. Anker, Law of Asylum in the United States (3d Ed. 1999). The INS Gender Guidelines specifically call for assessing women's claims using a human rights framework and discuss several key human rights documents addressing gender and human rights. Memorandum from Phyllis Coven, INS Office of International Affairs, to all INS Asylum Officers and HQASM Coordinators, Considerations for Asylum Officers Adjudicating Asylum Claims from Women (May 26, 1995).

The human rights framework is particularly convincing if the country of origin has acceded to any of the human rights covenants that specifically address gender-based harms, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women, thereby committing itself to implementing the protection standards provisions of these treaties. The act of allowing violations of provisions of these treaties without employing the necessary measures for enforcement and/or redress makes it easier to argue the complicity of the State in the actions of a private actor. It is important to understand that a State's accession to the above-mentioned instruments is not required for it to be considered bound by them since the standards they promote are widely considered to be universally applicable and binding.

a. Domestic Violence as the Basis of the Claim

Domestic violence itself should be characterized as a human rights violation. The Universal Declaration of Human Rights (Articles 3 and 5), the International Covenant on Civil and Political Rights (Articles 7 and 9), and the Convention on the Elimination of All Forms of Discrimination Against Women (Articles 3 and 16 (1)), all have provisions that guarantee certain rights that would be violated if a State is unable or unwilling to protect a woman from domestic violence.

The INS Gender Guidelines specifically address domestic violence as a human rights violation against women and recognize it as a potential basis for granting an asylum request. Moreover, the Board itself recognizes in Matter of R-A- that there may be cases where domestic violence could be the basis of an asylum claim. Matter of R-A-, Int. Dec. 3403 at 14, 22. The court in Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987), in reversing the BIA's denial of the petitioner's asylum claim, held that an abused woman who held the belief that the Armed Forces of El Salvador were responsible for lawlessness, rape, torture, and murder, and whose abuser imputed to her the political opinion that she was a subversive, has suffered persecution on account of political opinion. The court further stated that the fact that her abuser gave her "the choice of being subjected to physical injury and rape or being killed as a subversive does not alter the significance of political opinion for [her]." Id. at 1436. In addition, the court in Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991), stressed that their denial of the petitioner's asylum claim does not suggest that "women who have been repeatedly and systematically brutalized by particular attackers cannot assert a well-founded fear of persecution."

b. Distinguishing Facts or Law from Matter of R-A-

An integral aspect of any claim raising domestic violence is the issue of state protection. This point is more critical than ever in the wake of Matter of R-A-. If you have any ways of distinguishing your case from the facts in Matter of R-A-, make the most of those differences. One of the issues in Matter of R-A- was the question of her ability to obtain state protection from her husband's violence. It is important to establish as strongly as possible either that attempts to obtain protection from the State were unsuccessful or that any effort to obtain protection from the State would have been futile. With regard to futility, in some cases the applicant may be able to demonstrate that domestic violence is permitted by law. It should be demonstrated that efforts were made, but were unsuccessful. It would be even more convincing (though not essential) to show that the State's inability or unwillingness to provide protection was discriminatory -- that the State provides protection to some category of persons, but not the category of persons to which the applicant belongs.

For example, in Nigeria the law specifically allows a husband to abuse his wife and children. The Penal Code of Nigeria exempts from criminal prosecution any violence by a husband against his wife so long as he does not commit what is called "grievous hurt" which allows for a high level of harm such as blindness or permanent loss of limb. The fact that the law specifically exempts and allows violence by men against their wives and children would be a significant distinguishing factor from Matter of R-A-. This emphasis on the law speaks to the Boards concern, albeit misplaced, that domestic violence be "socially condoned" in some way.

Another example is the case of poor, rural Peruvian women. In Peruvian society it is a documented fact that rural peasants, especially women and children, are stigmatized for their status. In the context of an abusive relationship, where the violence is triggered at least in part because of her status as a poor rural woman, the stigma attached to their status is a distinguishing factor from the facts in Matter of R-A-.

Another example could be where a woman has expressed her opinion that women should not be dominated and abused by their intimate partner in a more overt manner than Ms. Alvarado did. If her family raised her to believe in women's autonomy or if she took that position in any context, and if her abuser was aware of that view at any time, that would distinguish her claim from Matter of R-A-.


3. FRAMING THE NEXUS ARGUMENT

A private person committing domestic violence (or a State that is unwilling or unable to protect a national or habitual resident from domestic violence) needs to be committing the abuse "for reasons of" or "on account of" one of the five grounds.

U.S. courts have reasoned that considering the persecutor's motives is important in establishing "on account of." The more clearly the ground of persecution is established, the easier it is to meet the U.S. "on account of" standard. Based on the imprecise nature of "social group," if any other ground can be invoked, invoking such other ground will make it easier to meet the "on account of" requirement.


4. ESTABLISHING THE BASIS: RACE, RELIGION, NATIONALITY, MEMBERSHIP IN A SOCIAL GROUP, POLITICAL OPINION

In addressing the nexus argument, how the harm is identified as being "on account of" one of the five grounds, it is important to use any grounds applicable to the claim. The ones most commonly used in gender-based claims are political opinion and membership in a particular social group. Religion is also raised fairly frequently. The grounds of race, religion and nationality are the most straightforward but are not always applicable or easily identifiable as applying in a given case.

a. Race

According to ¶ 68 of the UNHCR Handbook On Procedures and Criteria for Determining Refugee Status (hereinafter "UNHCR Handbook"), race should be understood in its broadest sense to include all ethnic groups that are referred to as "races" in common usage. The ground of "race" is discussed in more detail in paragraph c. below discussing nationality.

b. Religion

The ground of religion may be particularly straightforward and compelling when a religious regime committed to upholding a particular religion or belief system is involved. Religious regimes (as opposed to secular ones) may more overtly promote maintenance of certain social values the expressions of which are found in religious texts. Opposition to domestic violence by individuals of certain religions in those societies may be viewed as a challenge to these values and to the religion itself. At the same time, ¶ 72 of the UNHCR Handbook provides that persecution for "reasons of religion" may assume various forms, including serious measures of discrimination imposed on persons because they practice their religion. This form of persecution can be extended to include serious discrimination imposed on persons because of how they practice their religion (e.g. a woman who believes that it is not contrary to her religion to want to bring a divorce action against her abusive husband).

c. Nationality

According to ¶ 74 of the UNHCR Handbook, the term "nationality" is not to be understood only as "citizenship." The UNHCR Handbook provides that two or more national (ethnic, linguistic) groups may exist within the boundaries of a State. Paragraph 76 of the UNHCR Handbook provides that whereas in most cases persecution for reason of nationality is feared by persons belonging to a national minority, there have been many cases where a person belonging to a majority group may fear persecution by a dominant minority. The grounds of race and nationality are particularly compelling if one can show that the authorities in the country of origin are willing and able to provide protection to other races or other national groups to which the applicant does not belong. As for the private actor carrying out the persecution, establishing the fact that the persecutor knows that the victim of a particular race or national group would not be protected by the government makes a more compelling case.

d. Political Opinion

With regard to political opinion, it would be useful to clearly identify how the applicant expressed her opposition to domestic violence and to clarify what views she was actually expressing by opposing domestic violence. Paragraph 83 of the UNHCR Handbook recognizes that there may be applicants who conceal opinions. In this situation, the UNHCR Handbook advises assessing what consequences an applicant having certain political views would face if returned to the country of origin. Also, under ¶ 82, although the applicant may not have given expression to her opinion in the past, due to the strength of her convictions, it may be reasonable to assume that her opinion will sooner or later find expression. But clearly, if someone has already been targeted for reasons of political opinion and the authorities or the persecutor are aware of the opinion this is a stronger case.

According to ¶ 80 of the UNHCR Handbook, holding political opinions different from those of the government is not in itself a ground for claiming refugee status. An applicant must show that she has a fear of persecution for holding such opinions. The paragraph continues "this presupposes that the applicant holds opinions not tolerated by the authorities, which are critical of their policies and methods." The paragraph adds that "[i]t also presupposes that such opinions have come to the notice of the authorities or are attributed by them to the applicant." As the UNHCR Handbook clearly recognizes non-State agents of persecution, the above provisions would apply to them as well. In the context of domestic violence, it would be useful to point to the evidence that shows that the applicant's opposition to domestic violence was related to her views on the status of women, the obligations of governments to women and the status of marriage.

e. Membership in a Particular Social Group

In the context of domestic violence, "membership of a particular social group" is easier to argue if the particular social group already exists in the country of origin. In other words, a particular social group like family membership, trade union membership, and women of a particular socio-economic status are good examples. Thus, members of the group as well as outsiders have some history of viewing the particular social group as sharing certain characteristics and/or values.

UNHCR issued an inter-office memorandum, dated 12 December 1989, "Membership of a particular social group" (hereinafter "Memorandum"). The Memorandum provides that external perception of the group is likely to be particularly important in asylum claims. It also specifies that "inherent in [the] factors [considered when interpreting social group] is the consideration that the existence of the group will precede the claim even if it takes the lodging of the claim to give the group's existence formal recognition." The Memorandum provides further that the characteristics which define the group will exist independently of the fact of persecution, but must nevertheless play a role in the persecution of group members.

5. CIRCUIT COURT DECISIONS

The circuit case law will always trump a BIA decision so don't fail to investigate that. Keep in mind that even a decision that ultimately does not find a basis to grant a request for asylum may nonetheless contain useful dicta. For example, in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), the Third Circuit, while dismissing her appeal, found that transgressing social norms could constitute a basis for granting asylum. In Fatin, the petitioner's primary argument was that she faces persecution because she is "a member of 'a very visible and specific subgroup: Iranian women who refuse to conform to the government's gender-specific laws and social norms.'" Id. at 1241. The court, while recognizing the "particular social group" identified by the petitioner, found that she had failed to demonstrate that she was a member of the defined group. The court also found that feminism qualifies as a political opinion. Id. at 1242.

The Second Circuit affirmed the appeal of Adelaide Abankwah weeks after the Board's decision in Matter of R-A. While the substance of the claim is totally different, Abankwah v. INS, 185 F.3d 18 (2d Cir. 1999) deals with female genital mutilation and other related issues, the underlying message is important for at least two reasons. First, the Second Circuit ruled on the question of sufficiency of evidence and reaffirmed the principle that credible testimony does not have to be corroborated by objective evidence, and that a claim can be granted based on the applicant's own testimony. Id. at 24. The court recognized that "a genuine refugee does not flee her native country armed with affidavits, expert witnesses, and extensive documentation." Id. at 26. Second, and equally significant in sustaining her appeal on the heels of the Matter of R-A- decision, the court sends an important message about gender-based asylum claims and their ability to be recognized and granted under traditional asylum law analysis, viewed in the cultural and social and political context in which they arise.

In reviewing circuit court cases, don't despair if there are no gender-related decisions in your circuit. There is plenty of room to find good language in other decisions. For example, in Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994), the court found that it is quite plausible that there is more than one motive for persecution and so long as one motive meets the standard for asylum the applicant does not have to show that all possible motives meet the standard. In Osorio, the applicant was a union activist and one dimension of the persecution had to do with payment of funds. The court ruled that the fact that there was financial gain involved did not change the fact that Osorio was also being persecuted for his union activities. See also, Desir v. Ilchert, 840 F.2d 723 (9th Cir. 1988) (extortion by the Ton Ton Macoutes in Haiti, while involving financial gain also constitutes persecution on account of political opinion); Sotelo-Aquije v. Slattery, 62 F.3d 54 (2d Cir. 1995) (expression of political views does not require the individual to be a politician). These cases stand for important principles that may be relevant in any particular case.

6. CREATE THE RECORD

Lastly, one cannot stress enough the importance of creating the best possible record. Whatever relevant evidence you have -- documents, affidavits, witness or expert testimony, supporting information -- whatever is available and relevant should be submitted. While a case before an AO is treated de novo with an open record, the better the record before the AO the greater the possibility of succeeding. Once the record before the IJ is closed, that record will follow the case through all appeals with few and rare exceptions. Remember too that whatever the decision by the Board, both AOs and IJs have authority and the ability to make their own decisions. AOs, while bound by relevant precedent, make decisions on a case-by-case basis and can grant relatively freely if the case is well presented. IJs, while more strictly bound by BIA precedent, also have the freedom to rule by making factual or legal distinctions between the case before them and the case decided by the Board. Additionally, IJs and AOs both look to U.S. and non-U.S. jurisprudence for guidance. Whether they ultimately agree or not, at least they examine it and discuss it before making their rulings. Here the BIA did nothing but the most cursory mention, at best, of case law in other countries.


* Principal author, Pamela Goldberg, Associate Professor of Law, City University of New York School of Law, in collaboration with Bernadette Passade Cissé, Legal Counselor, Office of the United Nations High Commissioner for Refugees, Washington, DC (UNHCR), research assistance by Joy Mele, CUNY School of Law, funding assistance provided by Women's Commission for Refugee Women and Children. Please note that the views expressed in the Practice Pointers are not the official views of UNHCR.