By Michael Goodyear
In June 2018, then Attorney General Jeff Sessions released the controversial asylum decision Matter of A-B-.[1] The case centered on a woman seeking asylum who had suffered domestic abuse in El Salvador. Sessions held that counting victims of domestic violence as refugees was a gross expansion of the limited categories of bona fide refugees available under the 1951 Convention Relating to the Status of Refugees.[2] The Refugee Convention defines a refugee as an individual outside of their own country with a well-founded fear of being persecuted for one of the following reasons: race, religion, nationality, membership of a particular social group, or political opinion.[3] By declaring that victims of domestic abuse are unlikely to fit within this definition and receive asylum, Matter of A-B- made it nearly impossible for women and LGBTQ+ individuals to establish refugee status in the United States.
Principles of U.S. Refugee Law
Under the Refugee Convention and U.S. law, asylum is available to anyone “who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[4] Of these five characteristics, membership in a particular social group has effectively become a catch-all to cover any groups not identified in the more specific categories or race, religion, nationality, or political opinion.
To limit the expanse of a particular social group, American courts have employed two tests: ejusdem generis and social distinction. The ejusdem generis approach looks at whether the individual has an immutable characteristic, such as race or family relations. On the other hand, the social distinction test looks at (1) whether there is a common characteristic that sets this group apart from the rest of the community, and (2) whether the group is recognized by the rest of society. This two-fold test is extremely difficult to meet. Although courts have readily recognized LGBTQ+ individuals as a particular social group,[5] courts have rejected asylum claims of larger, more diffuse groups. For example, in Matter of W-G-R-, the court rejected the asylum claim of a former gang member.[6] Although the former gang member status was immutable, the court held that former gang members were not seen a socially distinct in society. Furthermore, the former gang members failed to establish that the harm they faced was because of their distinct status as former gang members, and not merely because of “the gang members’ desire to enforce their code of conduct and punish infidelity to the gang.”[7] Courts have also been more hesitant to declare women, who comprise half of humanity, a cognizable social group. In Matter of A-B-, Sessions continued in this vein of denying female asylum claims.
The Fate of Victims of Domestic Abuse
In Matter of A-B-, then Attorney General Jeff Sessions reaffirmed that U.S. law requires both the ejusdem generis and social distinction approaches. Particularly harsh for female applicants was Sessions’ determination that victims of domestic violence are not in of themselves a cognizable social group. Instead, Sessions stated, such violence is merely “general hardship.”[8] He reasoned that the particular social group category is not intended to be “some omnibus catch-all” for solving every “heart-rending situation.”[9]
Sessions’ decision in Matter of A-B-effectively undercut the refugee claims of thousands of female applicants. An estimated 35% of women worldwide have experienced sexual violence. Of this, 30% of cases were committed by intimate sexual partners.[10] It is undoubtable that women face an increased risk of domestic violence, the cause of thousands of deaths every year.[11]
Despite this, the Trump administration continues to demonstrate a strong bias against broad and large social groups, including women. Sessions’ decision to block refugee status for millions of potential female refugees demonstrated this strong bias. He stated that “[a] particular social group must avoid, consistent with the evidence, being too broad to have definable boundaries and too narrow to have large significance in society.”[12] This is a floodgate argument to limit the number of refugees that can successfully claim asylum under U.S. law.
The floodgate argument is a weak one. To illustrate, the number of asylum applicants in Canada actually fell after Canada began accepting women as a social category for asylum status.[13] The confines of the social distinction test are certainly murky. But there is a clear understanding that women are a distinct group in societies, from perceived gender roles to women’s organizations.[14] Matter of A-B- blatantly fails to protect the full range of refugees who deserve asylum under the Refugee Convention. By removing victims of domestic abuse as a distinct social group, Matter of A-B- particularly endangers the asylum claims of refugee women.
While Matter of A-B- is a significant blow to female refugee claims, it also provides a vague roadmap to a successful claim. For victims of domestic violence seeking asylum in the United States, it is imperative to be as specific as possible in defining the social group so that the court sees it as distinct. At least in the aftermath of Matter of A-B-, the most successful claims will likely latch onto another part of the refugee definition, including domestic violence due to different political beliefs or race. Yet future claims could push at the limits of asylum claims, using broader definitions such as “Guatemalan women who are victims of domestic abuse due to a lack of legal protections in their home country,” to draw a distinction with U.S. law, or even “women who are victims of domestic abuse and cannot leave their husbands under local law or custom,” to see if domestic abuse, and the excluded refugees from domestic violence, can be re-wrapped back under the U.S. refugee definition.
[1] A-B-, 27 I&N Dec. 316 (A.G. 2018); see also Katie Benner & Caitlin Dickerson, Sessions Says Domestic and Gang Violence Are Not Grounds for Asylum, N.Y. Times (June 11, 2018), https://www.nytimes.com/2018/06/11/us/politics/sessions-domestic-violence-asylum.html.
[2] A-B-, 27 I&N Dec. at 343-44; Convention Relating to the Status of Refugees art. 1(A)(2), July 28, 1951, 189 U.N.T.S. 152 [hereinafter “Refugee Convention”].
[3] Refugee Convention art. 1(A)(2).
[4] Id.; 8 U.S.C. § 1101 (2012).
[5] Karouni v. Gonzalez, 399 F.3d 1163, 1172 (9th Cir. 2005) (“affirm[ing] that all alien homosexuals are members of a ‘particular social group’”).
[6] W-G-R-, 26 I&N Dec. 208, 223-24 (BIA 2014).
[7] Id. at 224.
[8] A-B-, 27 I&N Dec. at 346.
[9] Id.
[10] Facts and Figures: Ending Violence Against Women, UN Women, http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures (last updated Nov. 2018); Violence Against Women, World Health Org. (Nov. 29, 2017), https://www.who.int/news-room/fact-sheets/detail/violence-against-women.
[11] Violence Against Women, supra note 9.
[12] A-B-, 27 I&N Dec. at 336.
[13] Ward v. Attorney General, [1993] 2 S.C.R. 689, 739 (Can.); Refugee Population by Country or Territory of Asylum, WORLD BANK, https://data.worldbank.org/indicator/SM.POP.REFG?locations=CA.
[14] Gender Stereotyping, UN Human Rights Office of the High Commissioner, https://www.ohchr.org/EN/Issues/Women/WRGS/Pages/GenderStereotypes.aspx (last visited July 15, 2019); Diversity, Gibson Dunn, https://www.gibsondunn.com/wp-content/uploads/2017/09/New-York-Diversity-Overview.pdf.