Citation

Doedens J. Duke J. Gend. Law Policy 2014; 22: 111-136.

Copyright

(Copyright © 2014, Duke University School of Law)

DOI

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PMID

unavailable

Abstract

The enduring difficulty of practicing asylum law is its discretionary nature. It is not an inalienable right, guaranteed in the face of any infringement of state sovereignty. Rather, it is legally and practically an international right realized in a domestic space, under domestic law. International human rights law affirms an individual's right to seek refuge and asylum in another country in order to escape persecution in his or her home country, and further ensures that a receiving country cannot send an individual back to the country of his or her persecution. The domestic legal systems of individual nations have the discretion to define the criteria for obtaining such protection from persecution, with the exception of general guidelines set out in the United Nations Handbook on Procedures and Criteria for Determining Refugee Status. As a result of this domestic application of international human rights standards, the United States is able to define the right, as it has with many international human rights standards, as narrowly as it sees fit. The narrowed definition is further limited by the discretion of the government officials charged with enforcing the human rights standards. This is particularly true in the case of domestic violence-based asylum claims. Not only do the he-said, she-said cases typical of domestic violence incidents dominate domestic-violence based asylum claims, but the aggressor, as with most asylum claims, is also necessarily absent from the proceedings. Instead, an Immigration Judge charged with enforcing the United States' immigration law must determine whether an individual's experience of domestic violence in an entirely separate country was neither too personal to the individual perpetrator and victim, nor too universal an expression of (primarily male) aggression. My aim in this article is to demonstrate that the individual's fundamental right to be free from persecution is hardly fundamental at all in the case of asylum law because it is subject to both a discretionary legal standard intended to comply with international law standards and the discretionary application of that standard in an individual case. Domestic violence as a ground for asylum is particularly likely to fail under this dual discretionary framework because of where such a claim falls within the legal framework. Unlike claims for asylum based on race, religion, classic political opinion, or nationality, domestic violence-based asylum claims must demonstrate that the feared or experienced persecution occurred on account of either the individual applicant's membership in a particular social group, or an imputed political opinion of opposition to female subjugation. Naturally, finding that such a particular social group exists, or finding that an individual possesses such a circumscribed political opinion is in itself subject to significant discretion, and can create a political conundrum. In order to demonstrate the nullification of the asylum right in the case of a victim of domestic violence, I will proceed first with a description of each of the levels of discretion: the general requirements for a claim of asylum in the United States, the discretionary application of such a standard in the various federal circuits (particularly the Ninth Circuit, whose rule is separate and distinct from its sister circuits), and the general requirements and application of those requirements for an asylum claim based on membership in a particular social group. I will then outline the development of domestic violence-based asylum claims, starting with the Ninth Circuit case of Lazo-Majano v. I.N.S. in 1987, the Board of Immigration Appeals (BIA) decision in In re R-A- in 2001, and the BIA's recent decision in Matter of A-R-C-G- in August of 2014. Finally, I will compare domestic violence-based asylum claims with other gender- and sex-based asylum claims, such as those based on a fear of female genital mutilation and persecution based on sexual orientation or transgender identity.

Language: en