HIRC plays key role in landmark decision recognizing domestic violence as grounds for asylum

The Board of Immigration Appeals (BIA) issued a ground-breaking decision yesterday that recognized domestic violence as a basis for asylum. The court’s decision in Matter of A-R-C-G- reflects years of work by the Harvard Immigration and Refugee Clinical Program (HIRC) and other advocates around the country who have pushed for the recognition of gender-based asylum claims. HIRC authored a critical amicus curiae brief in the case, on behalf of the American Immigration Lawyers Association, the preeminent immigration bar association.

The court’s decision will have a profound impact on future asylum cases involving women fleeing not only violence in the home, but also other types of violence when that harm is related to their gender, said Deborah Anker, Clinical Professor at Harvard Law School and Director of HIRC. “We have won many cases of women fleeing domestic violence at the immigration court and asylum office and changed the institutional culture at that level, but yesterday’s decision from the BIA finally establishes these principles as formal binding precedent,” she said.

According to Anker, yesterday’s decision is critical in recognizing that under U.S. law gender violence and gender-based persecution can form the basis of an asylum claim as the BIA first laid the foundation for 25 years ago; in its seminal case Matter of Acosta the Board held that gender is an immutable characteristic that fits within the “membership in a particular social group” ground of the “refugee” definition in U.S. and international law. Anker emphasized that gender broadly should permeate interpretations of all aspects of the refugee definition.

The landmark case was brought by a Guatemalan woman (represented by Roy Petty, a prominent Chicago-based immigration lawyer) who suffered years of abuse at the hands of her husband, compounded by the failure and unwillingness of the police in her home country to intervene. The Board reversed a lower court’s ruling that the harm endured by the asylum applicant was the result of random criminal acts and therefore unrelated to a required protected ground.

“Domestic violence is a form of gender-based persecution often perpetrated by men on women that they view as their ‘property’” said John Willshire Carrera, HIRC’s Co-directing Attorney at Greater Boston Legal Services.

Yesterday’s decision demonstrates the success of HIRC’s “bottom-up” approach to legal change. Nearly twenty years ago, HIRC co-authored the U.S. Gender Guidelines, which formally recognized gender-based harm in the asylum context and even recognized domestic violence as a basis of asylum, setting the stage for yesterday’s decision. But it was a long road, and many advocates contributed along the way, said Anker.

According to Nancy Kelly, HIRC’s Co-directing Attorney at Greater Boston Legal Services, it is advocacy on the ground level that provided the major catalyst for the court’s historic decision. “Through persistent and effective direct representation of asylum-seekers, we and others who do this kind of hands-on litigation and advocacy have been able to change the institutional culture, which made this kind of change in the formal law virtually imperative,” said Kelly.