When is a victory not a victory?
When the issues pertain to immigration law.
For instance, in Matter of A-R-C-G, the Board of Immigration Appeals recently held that abused immigrant women qualify for asylum in the U.S. under certain circumstances.
Media pundits and legal analysts applauded the decision as a landmark ruling.
However, the woman seeking protection has not yet won her case.
And many abused spouses were left out of the court’s sphere of protection.
Asylum Decision Will Not Open Immigrant Floodgates
I understand the rush of immigrant activists to celebrate the Board’s decision.
As a deportation trial attorney, I have fought these types of cases for two decades. Fearing to open the legal floodgates to a torrent of similar asylum applications from immigrant women, immigration courts have been unwilling to grant gender-based protection in asylum matters.
Moreover, to the extent such arguments have been successful, the BIA has been reluctant to publish them, or risk encouraging more immigrant advocates to seek such relief.
The BIA, however, need not fear. The standards are still quite high for legitimate asylum claims.
For instance, despite the positive ruling in A-R-C-G, the case is far from over. After upholding domestic violence as a viable basis for seeking asylum, the BIA sent the case back to the immigration judge for more evidence. In particular, the Board asked whether the abused spouse can prove the Guatemalan government was unwilling or unable to control her husband.
How Many Abused Spouses Will The BIA Ruling Protect?
Even though the BIA’s decision only applies to “married women in Guatemala who are unable to leave their relationship,” over time, its impact will likely be far greater and more positive.
The good news is that a legal door has finally opened for “social group” claims by immigrant women fleeing abuse by their spouses in countries where women’s rights are given short shrift.
In the BIA’s view, three distinct characteristics – “married,” “women,” and “unable to leave the relationship” — combined to define the social group eligible for protection under asylum law.
The bad news: the Board’s analysis was unduly narrow.
After all, consider:
- Is it just “married women” in Guatemala who suffer domestic abuse? What about non-married women in Guatemala?
- Is it just “women in Guatemala” who suffer domestic violence? What about women in other countries who suffer domestic abuse?
- Is is just “women who are unable to leave a relationship”? What about women who are able to leave a relationship but incapable of escaping domestic abuse?
These are not only common sense inquiries. They are crucial legal issues.
The Board’s flawed limitations, in my view as a Riverside immigration lawyer, must become the focus in the next round of asylum battles to protect abused immigrants against domestic violence.
Hopefully, immigrants won’t have to wait another 20 years for the next positive BIA decision.
By Carlos Batara, Immigration Law, Policy, And Politics