By: Kathy Jara, Associate Editor, Vol. 27
There are many arbitrary areas of immigration law that showcase deep-seated racist and xenophobic attitudes of the U.S. justice system. In particular, refugee law has been very difficult for refugees and asylees[i] to navigate. These individuals are, more often than not, individuals of color and members of other marginalized groups.[ii] In order for a person to qualify for refugee relief, “they must be in fear of persecution for one of five designated and precise reasons, namely: race, religion, nationality, political opinion or membership in a particular social group.”[iii]
The guidelines defining “a particular social group” have varied over time. Most simply it is “generally understood as an identifiable group of people viewed by the government as a threat.”[iv] It can also be described as individuals “sharing a common characteristic that is so fundamental to their identities that the members cannot—or should not be expected to—change it.”[v] These loose rules are difficult for lawyers to follow and are subject to change according to the general U.S. political climate and the current Attorney General’s changing opinion. Essentially, lawyers must get very creative and hope that the particular social group they are creating for a refugee to claim membership of, passes the test.
Refugees who are fleeing domestic violence have often sought to claim asylum through establishing membership of a particular social group for refugee entry.[vi] It has been far from easy as it for lawyers to formulate these claims “requires defining one’s social group with just the right kind and amount of particularity.”[vii] When refugee law was formed at the 1951 Refugee Convention, it was thought that the particular social group category could serve as a catch-all in case refugee applicants did not qualify for the other four grounds of asylum. Historically The Justice Department’s Board of Immigration Appeals has not thought of gender (no matter how systematically oppressed in the home region of the refugee) as a distinguishable characteristic used for identifying a particular social group.[viii] This has particularly affected women who are fleeing a region due to an abusive situation.[ix] Lawyers have continuously fought to define a particular social group to cover women fleeing violent relationships with partners but encounter the difficulty of not having gender act as a key characteristic for the membership group.[x]
Past cases are the only guidelines lawyers have, aside from the loose definitions mentioned earlier, for creating particular social groups for their clients. Examples of successfully crafted particular social groups for individuals fleeing domestic violence were essentially nonexistent until 2014 with the decision of Matter of A-R-C-G-.[xi] The Attorney General held that a group defined as “Married women in Guatemala who are unable to leave their relationship” was a particular social group a refugee could claim entry under because it was socially distinct, particularly defined, and based on immutable characteristics.[xii] This was a huge milestone for women as the particular social group definition used gender as a characteristic. It also gave hope to many as it seemed like the court was moving towards creating a stable framework for granting domestic violence survivors asylum through membership of a particular social group.
During the Trump Administration, past xenophobic, racist immigration law practices were reinstated.[xiii] In 2018, the Attorney General overruled A-R-C-G- on procedural grounds.[xiv] The former Attorney General found the decision in A-R-C-G- “was a product of DHS concessions and not the application of law by the BIA.”[xv] In the overturning case, Matter of A-B-[xvi], an El Salvadorian woman was seeking asylum through membership of a particular social group defined as “‘El Salvadoran women who are unable to leave the domestic relationships where they have children in common’ with their partners.”[xvii] It was clear to the legal community that the A-B- decision was largely based on “Department of Homeland Security stipulations rather than specific facts in the administrative record.”[xviii]A-B- “effectively foreclosed most asylum claims based on private domestic violence.”[xix] It actually became nearly impossible to win a claim during the Trump Administration for “the number of immigrants denied asylum grew from 9,716 in 2014 to 46,735 in 2019.”[xx]
Obviously, the decisions made during the Trump Administration largely impacted individuals of color.[xxi] Countless areas of immigration law changed making the system less and less stable.[xxii] In June of 2021, the Biden administration overturned the Matter of A-B- decision, along with other backward rulings that took place during the Trump administration.[xxiii] We are now back to square one and building on the precedent created over five years ago.[xxiv] It is particularly frustrating to read about the history of this case law for refugees. Even through a brief overview, it is clear that these matters of law are not rooted in legal reasoning. Reflecting on such tumultuous, somewhat arbitrary case law can leave one feeling powerless, but nonetheless, it is important to not let these xenophobic, racist ideologies go unnoticed.
[i] Author will now use refugee(s) as a catch-all, but note there is sometimes a need for distinction in immigration law practice.
[ii] Figures at a Glance, The UN Refugee Agency (June 18,2021) https://www.unhcr.org/en-us/figures-at-a-glance.html
[iii] Brienna Bagaric, Revisiting the Definition of Particular Social Group in the Refugees Convention and Increasing the Refugee Quota as a Means of Ameliorating the International Displaced Person’s Crisis 73 S.C.L.R. 1 (2018).
[iv] Dagmar R. Myslinska, What a “Particular Social Group” Means for Asylum Purposes, NOLO, https://www.nolo.com/legal-encyclopedia/what-particular-social-group-means-asylum-purposes.html (last visited Jan. 18, 2022).
[vi] Amien Kacou, Claiming Asylum Based on Domestic Violence, NOLO https://www.nolo.com/legal-encyclopedia/claiming-asylum-based-domestic-violence.html (last visited Feb. 4, 2022).
[viii] Stephen Legomsky & Karen Musalo, Asylum and the Three Little Words that Can Spell Life or Death, Just Security, (May 28, 2021) https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death.
[ix] Id. at Note 6.
[x] Shebani Bhargava & Shreenandini MukhoPadhyay, The Quest For Gender Based Asylum: Exploring ‘Women’ as a Particular Social Group, INTLAWGIRLS (Aug. 13, 2020), https://ilg2.org/author/shebanibhargava/.
[xi] Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014).
[xii] Particular Social Group & Asylum After Matter Of A-B- & Matter Of L-E-A-: Information and Resources, https://immigrantjustice.org/for-attorneys/legal-resources/topic/particular-social-group-asylum-after-matter-b-matter-l-e (last updated July 22, 2021).
[xiii] How the Trump Administration is eliminating asylum in the U.S., Rescue.org (Feb. 4, 2020),https://www.rescue.org/article/how-trump-administration-eliminating-asylum-us.
[xiv] Id. at Note 12.
[xvi] Matter of A-B-, 27 I. & N. Dec. 321 (Att’y Gen. 2018).
[xviii] Courtney May & Stephen Yale-Loehr, Domestic and Gang Violence Claims After Matter of A-B-: Reactions to the Case and Strategies for Success, Miller Mayer LLP (Nov. 4, 2020), https://millermayer.com/2020/domestic-and-gang-violence-claims-after-matter-of-a-b-reactions-to-the-case-and-strategies-for-success/.
[xix] Jean Lee, The 19th Explains: Why domestic violence survivors once again have a better chance of getting asylum, MyAttorneyUSA, http://myattorneyusa.com/ag-garland-vacates-three-trump-administration-precedents-on-particular-social-groups. (last visited Jan. 18, 2022).
[xxi] Peniel Ibe, Trump’s attacks on the legal immigration system explained, AFSC (Apr. 23, 2020), https://www.afsc.org/blogs/news-and-commentary/trumps-attacks-legal-immigration-system-explained.
[xxiii] Id. at Note 12.
[xxiv] Michael D. Shear & Miriam Jordan, Undoing Trump’s Anti-Immigrant Policies Will Mean Looking at the Fine Print, The New york Times (July 16, 2021), https://www.nytimes.com/2021/02/10/us/politics/trump-biden-us-immigration-system.html.