United States To Consider Spousal Abuse In Asylum Petitions

Aug 29, 2014 | Domestic Violence

Immigrants seeking asylum based on domestic violence won a substantial victory based on a recent Board of Immigration Appeals decision.  The Board has determined for the first time that domestic violence victims who are unable to leave their relationship may be able to qualify for asylum in the United States. The ruling comes in the case of a Guatemalan woman who crossed into the U.S. illegally in 2005 after fleeing her husband.

She said she called local police in Guatemala to report the abuse but was repeatedly told that the authorities would not interfere in her marriage. She argued that the abuse and the lack of police response should make her eligible for asylum via Form I-589.

In the first-of-its kind ruling Tuesday, the Justice Department’s Board of Immigration Appeals agreed, at least in part. In the nine-page decision, the appeals board concluded that the unidentified immigrant met at least one criterion for asylum: as a married Guatemalan woman who couldn’t leave her relationship, she was part of a particular social group.

The Homeland Security Department, which prosecutes deportation cases, did not contest the immigrant’s argument. The appeals board sent the case back to an immigration judge. The board sent the case back to an immigration judge for a final ruling.

Significance of this Ruling

The ruling by the board that decides appeals from federal immigration courts is significant because it means that the government now recognizes domestic violence victims as a potentially protected class of people seeking refuge in the United States. The decision establishes a broad and firm foothold for an untold number of women whose asylum claims have been routinely denied in the past.

It is this author’s opinion that the ruling can also be applied to the context of people seeking refuge based on gang recruitment or targeting. The parallel argument in the context of gangs involves the theory that a targeted individual who is unable to receive protection from governmental officials remains trapped in a prison of violence just as the domestic violence victim from Guatemala who was unable to leave her relationship.

Upcoming Challenges

Miami immigration lawyers still agree on one thing – proving all the elements of any asylum case can still be difficult. Those seeking protection have to prove they will be persecuted in their home country because of their race, religion, nationality, political opinion or membership in a particular social group. They also have to prove that their home government is either involved in the persecution or unable or unwilling to stop it.

It wasn’t immediately clear how the ruling will impact thousands of pending asylum cases and thousands more that could be filed now that the government has recognized domestic violence victims as a potential class of persecuted people.

More than 62,000 people traveling as families, most of them women and young children from Honduras, El Salvador and Guatemala, have been apprehended at the Mexican border since Oct. 1. They all face deportation.

Even though ultimately winning asylum in the U.S. is a long shot for most immigrants, just having a pending asylum case in immigration court can be something of a victory for immigrants fearful of being sent home. Those who can convince a federal asylum officer that their case should be heard by a judge are allowed to stay in the country and legally work while their case is decided. Because of a backlog of about 375,000 pending deportation cases, that process can take several years.

Tuesday’s ruling does not automatically mean the woman and her children will be granted asylum, however, it does have clear implications for other Central American women.

Guatemala ranked third in the world for the murder of women, according to statistics cited by the Center for Strategic and International Studies last year. In a 2012 report on violence against women, the Pan American Health Organization said that from 2008 to 2009 more than one-quarter of Guatemalan women said they had at some point suffered physical or sexual violence from a spouse or partner.

The ruling technically affects only Guatemalan women, but Miami immigration lawyers and  other immigration advocates said the decision could open the door to asylum claims for women from other countries.

The decision for this Guatemalan woman has clear implications for other Central American women. This is the first binding decision … to recognize this social group of women.

For more information about asylum, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305)895-2500 or visit our website at www. mmurraylaw.com