The asylum case of a Mexican woman and her two sons, based on severe domestic violence, led to an important Department of Homeland Security brief stating that, in certain cases, domestic violence can be grounds for asylum.
CGRS provided legal advice and other assistance to Ms. L-R-’s counsel before the Board of Immigration Appeals (BIA). Upon remand to the Immigration Judge, CGRS took on sole representation for Ms. L-R-, working with CGRS Advisory Board member Simona Agnolucci, then with Howard Rice, now with Keker & Van Nest, who represented Ms. L-R-’s two sons.
When Ms. L-R- was 19 and a student in Mexico, her school's sports coach — 33 years old at the time — raped her at gunpoint. For the next two decades, he kept her in virtual captivity, using physical force and beatings, and threatening death to her and her family members, to prevent her from leaving. He raped her regularly and tormented her mentally and verbally. When she tried to escape, his response was swift and brutal. Ms. L-R-'s pleas to the police to assist not only went unanswered, but they put her at risk for retaliation. The response of the judiciary was for the most part equally atrocious. When her abuser prevented L-R- from seeing her three children, the judge from whom she sought assistance told her he would help only if she had sex with him. 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 abuser tracked her down. He forced her to return by threatening to take away her children and kill her and her family. He was also physically and verbally abusive to the children. Ms. L-R- fled to the U.S. again 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. At the urging of one of her sons, Ms. L-R- sought legal counsel, and she filed for asylum 19 months after her arrival. Because of the delay, the San Francisco Asylum Office referred her case to immigration court.
The Immigration Judge denied her claims even while accepting the diagnosis of several experts that Ms. L-R- suffered from debilitating post-traumatic stress disorder (PTSD). The Judge found that her ability to work and care for her children meant she should have been able to file within the one-year deadline. The Judge also found that the persecution Ms. L-R- suffered did not qualify her for asylum. 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 argument followed the position advanced by the Department of Homeland Security in its 2004 brief to Attorney General John Ashcroft in the highly publicized case of Rody Alvarado (Matter of R-A-). The Judge acknowledged that her 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.
Ms. L-R- appealed to the Board of Immigration Appeals. Initially, the Department of Homeland Security filed a brief defending the IJ’s ruling that there was neither a cognizable gender-defined social group nor a nexus to an enumerated ground. However, in April 2009, under the then-new Obama administration, DHS retreated from that defense and filed a supplemental brief that built on the position it articulated in its R-A- brief five years prior and articulated the agency’s official position regarding domestic violence claims.
The 2009 brief of the Department of Homeland Security sets forth how the BIA’s new social group requirements of “social visibility” and “particularity” can be met in domestic violence cases. DHS advanced two formulations of a social group in Ms. L-R-’s case that could meet the immutability, visibility, and particularity requirements, depending on the facts in the record: (1) Mexican women in domestic relationships who are unable to leave; or (2) Mexican women who are viewed as property by virtue of their position in a domestic relationship. The Department of Homeland Security suggested that the case be remanded to the IJ for additional fact-finding. Although it did not issue a precedential opinion clarifying the governing doctrine, the BIA heeded the Department's request.
On remand, CGRS and co-counsel submitted extensive country conditions documentation showing very high rates of impunity for violence against women in Mexico, the culture of machismo, and widespread social tolerance for domestic violence and discrimination against women.
CGRS also submitted two affidavits. One was by Dr. Alicia Elena Pérez Duarte y Noroña, a professor of law and former special prosecutor for crimes against women. Dr. Perez focused on the deeply entrenched societal acceptance of domestic violence and the unwillingness and inability of the Mexican government to protect women from it. A second affidavit came from Jimena Avalos Capin, a Mexican constitutional and administrative law attorney with expertise in issues of transparency and access to information. This affidavit explained the inability of women to safely relocate because of the ease with which anyone can bribe or otherwise purchase information from governmental databases in Mexico (which keep personal information on individuals, including residential addresses).
To address the one-year bar, CGRS submitted the expert affidavit of Stuart Lustig, MD, a former professor of psychiatry at the University of California, San Francisco Medical Center. Dr. Lustig addressed the commonly held erroneous belief that someone who is too traumatized to apply for asylum would not be able to function at a relatively high level in other aspects of their daily life. Dr. Lustig explained that PTSD may incapacitate an individual from filing for asylum "while leaving intact their ability to function and survive on a day to day basis."
After reviewing Ms. L-R-’s additional evidence, DHS — as it had done in the R-A- case — stipulated that Ms. L-R- was eligible for asylum and merited asylum in the exercise of discretion. On August 4, 2010, a San Francisco IJ granted Ms. L-R- asylum in a summary order. The order simply states that asylum is granted, with a notation that the grant was a result of “stipulation of the parties.”
The developments in Matter of L-R-, coupled with Matter of R-A-, have persuaded other judges and opened the doors for other women. However, the CGRS’s tracking of cases indicates that the shifting policy positions and absence of applicable jurisprudential or regulatory norms have resulted in contradictory and arbitrary outcomes and the failure of protection for women victims of intimate partner violence.
Significance of the DHS Position in Matter of L-R-
Because the 2009 DHS brief represents the position of the agency, it is binding on Asylum Officers, and DHS trial attorneys should not take positions inconsistent with the brief.
The reasoning and analysis in the 2009 DHS brief in L-R- is not limited to domestic violence asylum claims. It is also relevant to gender-based claims more broadly. The brief takes the position that gender and status in a relationship, status in the family, and/or status in society can define a social group that fulfills all the current social group requirements, and that these characteristics may be one central reason for gender-based persecution.
The DHS brief in L-R- also provides a framework for how to address social group claims generally. It flushes out the social visibility and particularity requirements that have erected significant barriers to social group asylum claims and that have been rejected by the Courts of Appeals for the Third and Seventh Circuits.
Developments in Domestic Violence Asylum Timeline
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