Can domestic abuse victims qualify as refugees?

• Author: Lipinski, Maciej
• Position: Reprint

A Comment on Matter of A-R-C-G et al

The recently-released decision of the United States' Board of Immigration Appeals ("the Board") in the Matter of A-R-C-G et al., ("Matter of A-R-C-G"), 26 I&N Dec. 388 (BIA 2014) may signal the United States' growing openness to granting asylum to women who flee from domestic abuse. While the decision itself may be considered overdue, its reasoning takes a strong critical stance against nations that do not make reasonable efforts to protect women from violence. This reasoning stands in contrast to the more conservative approach that is usually applied by courts in both the United States and Canada.

If the Board's reasoning in the Matter of A-R-C-G is adopted by courts in the United States and elsewhere, then the threshold for making successful refugee claims will have shifted significantly in favour of future claimants who flee from abusive relationships in nations that are unwilling or unable to offer adequate protection.

Background

The Matter of A-R-C-G dealt with a Guatemalan woman who had fled from a years-long abusive marriage to seek refugee status in the United States. The refugee claimant in this case ("the Claimant") had fled from Guatemala after experiencing what the Board characterized as "repugnant abuse" at the hands of her husband. The abuse included weekly beatings, throwing paint thinner on her, and rape. The local police had been called following several incidence of this abuse, but had refused to interfere as these acts were considered to have been part of a marital relationship.

Test for Asylum

As in Canada, refugee claimants in the United States must prove three elements in order to be granted asylum on the basis of domestic violence in their home nation. A woman who faces domestic abuse must first prove that she qualifies as a Convention refugee based on: (1) membership in a particular social group; and (2) a well-founded fear of persecution on the basis of that membership. Where the persecution is perpetrated by a non-state party (e.g., an abusive spouse), the refugee claimant must also prove (3) the government's inability or unwillingness to provide protection.

In Canada, claims arising from domestic abuse are often denied because of insufficient proof of the third element. In the United States, however, claimants have often been denied on the basis of the first element since the United States applies a more complex test of what constitutes a particular social group.

Decision

The...