Background: Ms. L.R.'s Story

When Ms. L.R. was a 19-year-old student at a teacher training school in Mexico, the school's sports coach - who was 33 years old at the time - raped her at gunpoint. For the next two decades he kept her in virtual captivity, using physical force, beatings and threats of death to her and her family members, to prevent her from leaving him. He raped her regularly and tormented her mentally and verbally. On occasions she tried to escape him, and his retaliation was swift and brutal - in one instance he locked her in a room and set a fire, trying to burn her alive. Ms. L.R.'s pleas to the police to assist not only went unanswered, but they put her at greater risk because the police told her common-law husband that she had complained, which resulted in even more serious beatings. The response of the judiciary was - for the most part - equally atrocious. When her common law husband prevented L.R. from seeing their three children (all of whom were the result of being raped by him) and she sought assistance from a judge, he told her he would help only if she had sex with him, and when she refused, he told her she was a bad mother, because a good mother would do anything for her children.

Ms. L.R. fled to the United States in 1991, but her common-law husband tracked her down and forced her to return by threatening to take away her children and kill Ms. L.R. and her family. Back in Mexico, he continued to terrorize Ms. L.R. and he physically and verbally abused their children. Ms. L.R. realized that her abuser would not stop until he killed her and that the police would not protect her. She fled to the U.S. in 2004 with her children, this time for good.  Although she was free from abuse in the U.S., Ms. L.R. was paralyzed by the effects of having been a victim of domestic violence for two decades. She suffered from insomnia, nightmares, anxiety, and depression. Memories of the abuse were so painful that she tried to avoid any reminder of her past and was unable to plan beyond daily survival. As a result, she did not immediately seek asylum. At the urging of one of her sons, Ms. L.R. sought legal counsel and she filed for asylum nineteen months after her arrival to the U.S.

Procedural History

Proceedings before the Asylum Office and the Immigration Court

As a result of Ms. L.R.’s seven month delay in filing for asylum, the San Francisco Asylum Office referred her case to the Immigration Court, where a judge denied her claim. Although the judge never questioned Ms. L.R.’s credibility and found that she had suffered past persecution in the form of “severe physical and sexual abuse,” he ruled that she was barred from asylum because of her failure to file within one year of arrival, and that she did not qualify for withholding of removal because her persecution was not on account of a statutorily protected ground.

One year bar

Ms. L.R.’s attorneys submitted reports by two mental health experts, a clinical psychologist and a licensed social worker, both of whom diagnosed her with Post Traumatic Stress Disorder (PTSD) stemming from the extreme violence she experienced in Mexico. The experts found that Ms. L.R. suffered intense psychological distress whenever exposed to cues that reminded her of the trauma, which caused her to actively avoid any reminder of her past abuse. They also determined that Ms. L.R. had a "foreshortened" sense of future that prevented her from thinking beyond surviving in the present and from planning for the future. On the basis of these facts, they concluded that Ms. L.R.’s PTSD affected her ability to file for asylum within one year of arrival.

The immigration judge accepted the experts’ diagnosis that Ms. L.R. suffered from PTSD, and noted that one symptom associated with PTSD is avoidance of situations that trigger traumatic memories – such as the asylum process. Nonetheless, the judge concluded that Ms. L.R.’s ability to work and care for her children undermined her argument that PTSD delayed her from timely filing, and he consequently refused to waive the bar.

Social Group Membership and Nexus

Ms. L.R.’s attorneys argued that she was a member of a social group defined by her gender and inability to leave an abusive domestic relationship. This social group is similar to the one that was advanced by the Department of Homeland Security (DHS) in its 2004 brief to Attorney General Ashcroft in the highly publicized case of Rody Alvarado (Matter of R-A-). Notwithstanding the similarity between the two cases, the DHS attorney assigned to the case argued that the social group advanced by Ms. L.R. was not cognizable. The judge agreed and rejected the proposed group.

The immigration judge also ruled that Ms. L.R.’s persecution was not on account of a protected ground. The judge acknowledged that Ms. L.R's abuser viewed her as property, but found that he beat her simply because he was a violent man, not because of her gender or status in the relationship.  

Proceedings before the BIA

Ms. L.R. appealed the judge’s decision to the Board of Immigration Appeals (BIA). In its initial brief to the BIA, filed during the Bush Administration, DHS argued, inter alia, that the decision below should be sustained because Ms. L.R. had failed to establish that she was a member of a cognizable social group or that her persecution was on account of any such membership. Under the Obama Administration the DHS position changed. DHS filed a brief in April 2009 stating that women such as Ms. L.R., who have suffered domestic violence, could qualify for asylum as members of a particular social group.

The brief advances two alternate social groups that it says could meet the current requirements for social group membership (shared immutable or fundamental characteristics, social visibility, and particularity), depending on the facts and evidence in the record: “Mexican women in domestic relationships who are unable to leave,” and “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.” The brief also recognizes that a social group defined by family membership may be appropriate in some domestic violence cases. It lays out the elements for a successful claim, stating that a woman would have to show that in her country: 1) the society 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.

The parties filed a joint motion asking the BIA to remand the case to the Immigration Court. It was at this point that the Center for Gender & Refugee Studies (CGRS) began representing Ms. L.R.  Simona Agnolucci, of the law firm of Howard Rice Nemerovski Canady Falk & Rabkin, co-counseled with CGRS, representing Ms. L.R.’s sons.

Proceedings on Remand to the Immigration Court

Evidence Submitted

On remand before the Immigration Court, CGRS, along with co-counsel, submitted extensive country conditions documentation showing exceedingly high rates of impunity for violence against women in Mexico, the culture of machismo, and widespread societal tolerance for domestic violence and discrimination against women. [Evidence about the situation of children was also submitted, but their cases were ultimately resolved through a derivative grant of asylum.]  CGRS also submitted affidavits by two country conditions experts. The affidavit of Dr. Alicia Elena Pérez Duarte y Noroña, a professor of law and former special prosecutor for crimes against women, focuses on the deeply entrenched societal acceptance of domestic violence and the unwillingness and inability of the Mexican government to protect women from it.  Jimena Avalos Capin, a Mexican constitutional and administrative law attorney with expertise in issues of transparency and access to information, prepared an affidavit regarding the inability of women to safely relocate because of the ease of tracking individuals in Mexico through the internet.

To address the one-year bar, CGRS submitted the expert affidavit of Dr. Stuart Lustig, a professor of psychiatry at the University of San Francisco Medical School, who has published numerous articles on refugees and trauma. Dr. Lustig's affidavit explains that PTSD frequently causes people to avoid anything that reminds them of their trauma and renders them unable to participate in activities unrelated to immediate survival, such as the process of seeking asylum. According to Dr. Lustig, there is a "common" misperception that PTSD affects overall functioning, but this assumption "is not borne out by the medical evidence." Dr. Lustig explains that PTSD may incapacitate an individual from filing for asylum, "while leaving in tact their ability to function and survive on a day to day basis."

Arguments

The DHS brief in L.R. served as a template for CGRS’s legal memorandum. Consistent with the social groups advanced in DHS's 2009 brief in L.R., CGRS argued that Ms. L.R. was a member of the social group of “Mexican women in domestic relationships who are unable to leave," and that she was targeted on account of her group membership. The extensive country conditions evidence supported these arguments. With respect to the one-year bar, CGRS argued that Ms. L.R.'s PTSD was an extraordinary circumstance that prevented her from timely filing for asylum, and that her seven month delay was reasonable given the two decades of severe abuse she suffered and her ongoing PTSD and depression.

After reviewing the country conditions evidence and legal memorandum submitted by CGRS, DHS submitted a legal filing stating that Ms. L.R. was eligible for asylum and merited it in the exercise of discretion. On August 4, 2010, a San Francisco immigration judge granted Ms. L.R. asylum in a summary order which simply states that asylum is granted, with a notation that it was a result of “stipulation of the parties.”