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Friday, August 29, 2014

Q&A with Karen Musalo, Director of the Center for Gender and Refugee Studies

On August 26, the federal Board of Immigration Appeals issued a groundbreaking decision recognizing domestic violence as a basis for asylum.
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After 15 years of remaining silent on the issue, the Board of Immigration Appeals has now issued a precedent-setting decision recognizing domestic violence as a basis for asylum.

Under the direction of UC Hastings Professor Karen Musalo, the Center for Gender and Refugee Studies has pioneered the effort to obtain legal recognition of domestic violence as a potential basis for asylum.

Professor and Director of the Center for Gender and Refugee Studies Karen Musalo discusses this week’s landmark ruling by a federal immigration board holding that a married woman fleeing domestic violence in Guatemala can seek political asylum in the United States if authorities are unable to protect her at home. Professor Musalo and colleagues at CGRS wrote an amicus brief in the proceedings.

Q: How were you involved with the Guatemalan women in this case? Have any of them had a reaction to the decision? 

A: Through my representation of Rody Alvarado and Ms. L-R-, two women who fled years of brutal domestic violence at the hands of their partners in Guatemala and Mexico, respectively, CGRS pioneered this area of the law. Our work in those cases, which led the Department of Homeland Security (under Presidents Bush and Obama) to agree that women fleeing domestic violence can establish eligibility for asylum, opened the door for women like Ms. C-G-, the applicant in the case decided yesterday.

In addition to this trailblazing legal work, CGRS has maintained steadfast commitment to helping individual asylum seekers fleeing domestic violence by providing technical assistance and expertise to attorneys who represent them across the country, including legal strategy, litigation support materials and filing amicus briefs, as CGRS did for the attorney in this case.

CGRS has not been in touch directly with Ms. C-G-; we did speak with her lawyer to congratulate him on this rare and long-awaited victory and to further lend our support and materials for the next hearing before the immigration court. (Although the decision in Ms. C-G-’s case is groundbreaking, the Board of Immigration Appeals [Board] did not go so far as to grant asylum but rather sent the case back to the immigration judge to consider, among other things, whether the government of Guatemala is able and willing to protect her.)

Ms. C-G-’s attorney thanked us, and noted that our materials are incredibly helpful. He told us that an important part of achieving wins in these cases is good, strong documentation, which is exactly the kind of country conditions and expert testimony that CGRS produces.

Q: What other particular social groups might there be, and have any been recently recognized? Where is the stopping point on defining this term? 

A: For more than 20 years, the Board defined a particular social group as one that shares immutable characteristics – that is, characteristics one either cannot change that are innate, or should not be required to change; ones that are fundamental to someone’s identity or conscience. 

Several social groups were recognized by the Board under this standard including homosexuals, former members of the Salvadoran national police, and women (of a particular country) who oppose the practice of female genital cutting (the latter in Matter of Kasinga, a case I litigated just before founding CGRS).

This test, although not without challenges, proved a reasonable and workable standard and was even praised and followed by other foreign jurisdictions. However, in 2006, the Board began to also require that a group not only be united by immutable or fundamental characteristics but that it have what the Board called “social visibility” and “particularity.” These added requirements were rejected by two federal Courts of Appeal as unreasonable interpretations of the statute but have led to a restrictive analysis. Until this week, the Board had not recognized even one new social group in a published opinion. 

The Board’s decision in Ms. C-G-’s case provides a framework for how to establish social visibility (now named “social distinction”) and particularity, which can provide guidance for establishing a social group even outside of the domestic violence context. However, the sort of evidence the Board requires to meet these requirements – documentation of country conditions, law enforcement statistics, and expert testimony – are difficult for even a seasoned attorney to gather and present. It would be almost unthinkable to have an applicant, who might even be in detention, do this without an attorney.

Beyond gender claims, asylum claims involving gang-related violence have also been met with significant resistance. It is not clear how these sorts of claims will fare despite the irrefutable evidence that individuals fleeing gang violence are likely to face extreme violence and even death if returned to their country. 

In my opinion, there has been an undue emphasis on the claim that recognizing a social group will “open the floodgates” for individuals seeking refuge here. This unjustified and unprincipled argument has created a convolution of the law and a denial of refugee protection in meritorious cases. Just like most people have a race, religion, nationality or political opinion (the other protected grounds for asylum), most people are members of a group. But establishing membership in a group says nothing more than just that. An applicant for asylum must still meet the other requirements including, among other things, that she was or will be persecuted because of her membership in that group, that her fear of persecution is well-founded, and that her government is unable or unwilling to protect her.

Q: Does this decision mean the law will shift to recognize that any proven victim of domestic violence qualifies for asylum relief, regardless of country of origin?

A: The Board’s decision clearly recognizes that women fleeing violence at the hands of their domestic partners in any country can establish eligibility for asylum as long as they can meet the other requirements for asylum. This includes providing proof that their government is either unable or unwilling to protect them. The Board's holding, therefore, repudiates the position of some immigration judges that these claims are categorically “unworthy” of relief. But the Board also made it clear that each case must be decided on its own facts. Therefore, even if there is another case involving domestic violence from Guatemala, it will not automatically be granted; the adjudicator will look to the facts and circumstances of the record. 

The Board’s decision sets forth a clear analytical framework for how domestic violence claims can and should be presented and analyzed such that an identical social group proffered in an analogous case should pass muster. The Board recognized that this social group is affected by Guatemala’s machismo culture and high rates of family violence, as well as the fact that there are laws protecting domestic violence victims that are not effectively enforced. These conditions in Guatemala exist in many countries with deep patriarchal roots that subordinate women. They lead to impunity for crimes against them, including rapes, beatings, and other psychological torment, at the hands of husbands and other intimate partners. This does not mean that every woman who has suffered domestic violence will necessarily qualify for asylum protection, but rather, that her case must be given the careful scrutiny it deserves.

Questions by Jessica C. Kraft

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