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Members of a ‘particular social group’ may qualify for asylum if they have suffered violence for such traits as gender, sexual identity and sexual orientation. AP Photo/Tsering Topgyal

Why domestic abuse and anti-gay violence qualify as persecution in asylum law

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Attorney General Jeff Sessions recently upended decades of U.S. legal precedent by asserting that women fleeing domestic violence will not generally qualify for asylum. To do so, he challenged the principle that women victims of domestic violence are members of a “particular social group.”

This phrase – “particular social group” – is critical to the work of immigration lawyers like myself. It allows us to argue that women, LGBTQ people and other vulnerable groups face specific kinds of persecution based on who they are.

If left unchallenged, Sessions’ ruling could endanger thousands of asylum-seekers, including many of my clients.

What is a ‘particular social group’?

International refugee law, which the U.S. has incorporated into domestic law, requires signatory countries to offer protection to people who demonstrate a well-founded fear of certain kinds of severe harm in their home countries. Their persecution must be related to race, religion, nationality, political opinion or their particular social group.

In a landmark 1985 case, Matter of Acosta, the U.S. Board of Immigration Appeals explained that members of a “particular social group” share a “common, immutable characteristic” that they cannot, or should not be required to, change. Sex was identified as one such characteristic.

In 1995, the U.S. Immigration and Naturalization Service issued specific guidelines recognizing that women may be a particular social group. Immigration lawyers have since successfully argued – including in the 2014 A-R-C-G- decision – that partner violence may thus form the basis for an asylum claim.

The United Nations has reinforced this interpretation, stating that individuals who fear persecution for reasons of gender, gender identity and sexual orientation can establish eligibility for asylum based on the “particular social group” category.

Today, many countries, including Canada, recognize the unique torments that many women, gay and trans people face worldwide.

Sessions turns back the clock

When Sessions overruled A-R-C-G- on June 11, he turned back the clock on U.S. asylum law.

“The mere fact that a country may have problems effectively policing certain crimes, such as domestic violence or gang violence, or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” he wrote. Domestic violence, Sessions added, is a “personal” matter.

The decision reflects concerns that recognizing domestic abuse as a basis for asylum would invite battered women worldwide into the U.S.

But asylum law is strict. In late 2017, the U.S. Asylum Office granted just 23 percent of applications. Upwards of 75 percent of asylum-seekers from El Salvador, Honduras and Guatemala were rejected by immigration courts between 2012 and 2017.

Sessions’ characterization of domestic abuse as “personal” also ignores modern science about the power dynamics behind gender violence. Women are most likely to be murdered by their partners, making domestic violence a well-founded fear indeed.

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