Lawyers Manual - Unified Court System

Asylum and Related Remedies
Representing Immigrant Victims of Domestic Violence 329
Domestic violence survivors, as victims of gender-based persecution, also
may seek immigration relief in the United States by filing an application for
asylum. An asylum applicant must show that she is unable or unwilling to return
to her home country because she suffered persecution or has a “well-founded
fear” of future persecution on account of her race, religion, nationality, political
opinion, or membership in a particular social group. 93 A “well-founded fear” of
persecution does not require absolute certainly of persecution, and the Supreme
Court has found that an individual who has a 10% chance of being persecuted
may meet the standard. 94
Asylum applications based upon gender-related persecution are typically
categorized as “social group” claims. Members of a “particular social group”
share an immutable characteristic that they cannot change or should not be
required to change, such as gender, family membership, or marital status. 95
While initially resistant to gender-based social group claims, immigration law
has evolved to offer protection to women fleeing female genital mutilation (also
referred to as “female genital cutting”), forced arranged marriage, honor killing,
and prostitution. 96 Gender-based claims often overlap with other protected
grounds such as political opinion and religion, however, and the asylum
applicant should include as many of them as possible in her application. 97
Although the current legal landscape is still in flux, asylum or its related
remedies, withholding of removal and Convention Against Torture (CAT)
relief, may be the only route for some women who fear domestic violence or
other forms of gender-based persecution abroad and now seek shelter in the
United States.
Matter of R-A- and Its Aftermath
The leading case addressing asylum eligibility for domestic violence
survivors is Matter of R-A-. 98 In R-A-, a Guatemalan woman named Rodi
Alvarado sought asylum after suffering substantial violence at the hands of her
husband, a former soldier. Her repeated pleas for help from the Guatemalan
authorities were rejected. Ms. Alvarado fled to the United States and was placed
into deportation proceedings. While the immigration judge found that the abuse
she had suffered constituted persecution, the Board of Immigration Appeals
(“BIA”), the appellate body for the immigration courts, reversed on the grounds
that victims of domestic violence did not constitute a “particular social group”
for asylum purposes. 99 The INS subsequently reversed its earlier opposition to