Women fleeing to the United States from gender-based violence in their countries of origin face a precarious route to asylum. A recent victory won by Cornell Law School's Asylum and Convention Against Torture Appellate Law Clinic may make that journey easier for future asylum seekers.
The Clinic's client in this case was a Salvadoran mother of three who had fled domestic abuse. Her abuser, a long-term boyfriend and father of one of her children, subjected her to near constant physical and sexual assault; once, holding a machete to her throat, he threatened to kill her in front of her children. She repeatedly attempted to escape him, even traveling to Guatemala, but he tracked her down and continued to terrorize her. Local law enforcement was aware of the situation but did nothing. In January 2014, she fled the country and made her way to the United States, where she was apprehended at the border and detained.
To qualify for asylum in the United States, a person must show that he or she is fleeing persecution connected to race, religion, nationality, political opinion, or membership in a particular social group. Victims of gender-based persecution are not explicitly included in the qualifying criteria. In a landmark 2014 decision, the Board of Immigration Appeals (BIA) identified "married women in Guatemala who are unable to leave their relationship" as members of a particular social group and thus qualified for asylum. The case set a precedent for domestic violence survivors seeking asylum, but many immigration judges have applied the decision narrowly.
The Clinic's client from El Salvador was assisted by Arizona nonprofit The Florence Immigrant & Refugee Rights Project in her initial case before an immigration judge. When the judge denied her asylum, the Clinic accepted the case through the Catholic Immigration Network's pro bono program.
The case was taken on by Professor Sital Kalantry, along with Clinic students Yujin Chun '15 and Carolyn Wald '16, with interpretation assistance from Ed Flores '16. Professor Kalantry supervised the students in writing a brief to the BIA arguing that the immigration judge had erred in his decision. This was the beginning of a long and complicated campaign.
The centers where the U.S. government detains asylum seekers are notorious for their harsh conditions and prolonged internments. At one point, the Clinic's client was placed in solitary confinement. The trauma of that experience, along with other stresses of her predicament, discouraged the client from her quest for asylum. She asked her lawyers to withdraw her request so she could be released from the detention center and deported.
After a long discussion with the client, the Clinic team acceded to her wishes. "[It] was difficult, because we believed in the strength of her case and knew that she would be returning to a potentially lethal situation in El Salvador," says Wald. The team made inquiries at the detention center about the nature of the client's punishment, and the center removed her from solitary confinement. With the stress of confinement eased, the client renewed her asylum case, and through the team's skillful and passionate advocacy, the case was reopened. This January, after many months of waiting, and a total of a year in confinement, the BIA ordered the immigration judge to grant asylum to the Clinic's client.
"This was a heart-wrenching case that revealed all the flaws of our immigration system. Carolyn and Yujin went beyond the requirements of the class to tirelessly advocate for the client," says Kalantry.
"This was a huge victory," says Wald. "Our client has endured so much pain, disappointment, and injustice, so it was a wonderful feeling to be able to give her the good news. The BIA also typically does not grant asylum outright but rather sends the case back down for the immigration judge to consider asylum in light of the BIA's findings. Here, the BIA's decision to grant asylum directly demonstrates that they found our client's case as strong as we did."
Prominent immigration groups and lawyers have written to the BIA requesting that they publish this case because it extends and clarifies the Matter of A-R-C-G. The BIA publishes very few cases each year (less than forty) but is currently considering publishing this one as a precedent decision. If they do so, it would serve to shed light on the murky path to asylum for women fleeing domestic violence.
Wald, who is publishing a note in the Cornell Journal of Law and Public Policy on this topic, adds, "Going forward, I hope this is a sign that the BIA and the immigration system are tending towards a broad interpretation of case law on the issue of domestic violence as a basis for an asylum claim and that more domestic violence survivors are able to find shelter in the United States."