New York Lawyer's Legal Updates

Asylum Claim Based on Domestic Violence in Home Country

Author: Asylum Attorney Alena Shautsova

An applicant for asylum must establish that he or she is a refugee within the meaning of INA § 101(a)(42). To qualify for asylum, an individual must demonstrate that he or she has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. In addition, the individual must show that his or her home country is unwilling or unable to protect him or her from such persecution.

Although not specifically enumerated as one of the five protected grounds, domestic violence asylum claims are gaining support within the US Immigration system. Despite the absence of final regulations from the Department of Justice concerning domestic violence, victims may be considered a part of a social group where they are unable to leave a relationship and where the government is wholly unable to offer them any sort of protection. Furthermore, the Department of Homeland Security (“DHS”) submitted a Supplemental Brief on April 13, 2009, to the Board of Immigration Appeals (“BIA”) in Matter of L-R-.  The Brief, written by the Principal Deputy General Counsel of DHS, David A. Martin, articulated the agency’s new policy regarding domestic violence asylum claims under the Obama administration. The DHS Brief states that women who have suffered domestic violence can qualify for asylum or withholding of removal as members of a particular social group. This brief further recognizes that a social group defined by family membership may be appropriate in some domestic violence cases. The brief goes on to delineate the elements for a successful claim, stating that a woman would have to show that in her country: 1) the social and legal norms tolerate and accept violence against women; 2) the government is unable or unwilling to protect, and 3) there is no place within the home country that the woman could move to in order to escape her persecutor. Furthermore, this brief stated that on account of gender and status in the relationship, women may be classified as part of a particular social group and that the violence was directed towards them as a result of their gender and status in the relationship. The BIA has recognized past persecution in cases when an applicant endured severe physical abuse at the hands of a family member. Atrocious past persecution suffered in domestic violence cases, including chronic physical abuse, may justify a grant of humanitarian asylum.

30 June 2013
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