INS ISSUES PROPOSED RULE ON ASYLUM AND DOMESTIC VIOLENCE

During the summer of 1999, the Board of Immigration Appeals issued an opinion in In re R-A-, denying asylum to an applicant who had suffered severe domestic abuse at the hands of her husband.  This decision has been widely attacked and it is possible that the Attorney General will vacate it.  Regardless of the ultimate fate of the decision, it has led the INS to examine some of the asylum regulations, particularly those dealing with the meaning of “persecution” and “membership in a particular social group.”  The INS has proposed a rule that is meant to remove some of the barriers to asylum applications based on domestic violence that the R-A- decision seemed to impose.

Persecution is not defined neither in the United Nations Convention on the Status of Refugees nor in the Refugee Act of 1980.  Shortly before passing the Refugee Act, Congress did debate developing a definition of “persecution”, but concluded that the word had a well-established meaning.  While there is general agreement as to the meaning of persecution, in close cases there is no such agreement.  The proposed rule is intended to provide guidance, particularly in these close cases.

Under the proposed rule, persecution would have both objective and subjective elements.  The acts alleged to be persecution must create objectively serious harm.  The subjective aspect comes in that the person suffering the persecution must perceive the acts as persecution.  The rule makes clear that the persecutor does not need to be acting out of malice, and that the subjective requirement is on the part of the asylum applicant.

For persecution to give rise to an asylum claim, it must be either inflicted by the government or by a group that the government is unwilling or unable to control.  The proposed rule clarifies when there is the requisite level of government involvement, especially in cases where the government is not the persecutor.  It provides that asylum officers should examine whether the government made any effort to intervene and whether the applicant attempted to seek the assistance of the government and what the government’s response was.  Other factors that need to be considered are a pattern of government unresponsiveness, the general conditions in the country, the government’s policy, if any, with regard to the harm alleged and any steps the government has taken to prevent such harm.

Another important factor in asylum law is that the applicant must have been persecuted “on account of” a protected characteristic – race, religion, nationality, membership in a particular social group, or political opinion.  This rule codifies the long standing idea developed by the courts that a persecutor can have mixed motives and the law can still be satisfied if the persecution was motivated at least in part by a protected characteristic.

The most important aspect of the new rule is its guidance on the meaning of membership in a particular social group.  Perhaps the most important way of determining this membership is through a shared, immutable characteristic that either cannot be changed or is so fundamental to the person that they should not be expected to change it.  The group must exist outside of the persecution – that is, the group cannot identify itself only through the persecution.  Past experiences often create a social group.  When this is the case, the proposed rule provides that at the time of the experience, members must have had that experience because of an immutable characteristic or a characteristic so fundamental that they should not be expected to change it.

Other factors in determining whether there is a particular social group are provided in the rule.  These are whether there is a relationship among members of the group, whether the members share a common interest or motive, whether there are voluntary associations between the members, whether the group is recognized as such by others, whether the members view themselves as members of a particular group and whether the larger society treats group members differently.  This list is not exhaustive, and the comments to the rule are careful to point out that because asylum cases are intensely fact specific, the rules are meant only to provide general guidelines.

The INS will accept comments on this proposed rule until January 22, 2001.  Comments should be submitted in triplicate to Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW, Room 4034, Washington, DC 20536.