18_1rodriguez by hedongchenchen


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                                                                                        Natalie Rodriguez*

     I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          318     R
        A. Asylum Law and Why it Fails Battered Women . . . .                                                     319     R
           1. The Origins of Asylum Law in the United
               States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       319     R
    II. ASYLUM ADJUDICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       322     R
        WOMEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   323     R
        A. The Clinton Administration: Hope for Battered
           Women Seeking Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . .                           325     R
        B. The Bush Administration: A Step Back for Battered
           Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        329     R
        C. A Renewed Promise: The Obama Administration . .                                                        332     R
        RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   334     R
        A. A Lesson from the United State’s response to
           China’s “One Child Policy” . . . . . . . . . . . . . . . . . . . . . . . . .                           334     R
        B. The Obama Administration Should to Amend The
           Refugee Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            337     R
        C. The Obama Administration Should Promulgate
           Joint Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                339     R

      * J.D., Southwestern Law School, 2012; The author is grateful to Professors Austen Par-
rish and Alison Kleaver for their insights and guidance during the development of this article.
The author would also like to thank the Southwestern Journal of International Law Board and
Staff for the countless hours spent on producing this issue. Finally, the author would like to
acknowledge that this article would not be possible without the unyielding encouragement and
support of her family, above all, her husband, Jesse A. Rodriguez and children, Elijah and

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318             SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW                                                     [Vol. 18

         ARGUMENT FAILS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              340      R
         A. Statistics Say Otherwise . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   341      R
         B. The Burden Remains High . . . . . . . . . . . . . . . . . . . . . . . . .                            342      R
         C. Sending a Clear Message . . . . . . . . . . . . . . . . . . . . . . . . . . .                        343      R
     VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      345      R

        “And to all those who have wondered if America’s beacon still
        burns bright: . . . we proved once more that true strength of our
        nation comes . . . from the enduring power of our ideals: democracy,
        liberty, opportunity and unyielding hope.”—President-Elect Barack

     Under the Obama Administration, there is, once again, a shift in
immigration policy, especially for granting battered women asylum.
Until 2009, battered women were continuously denied refugee protec-
tion. Asylum adjudicators consistently misinterpreted the term “par-
ticular social group,” one of five refugee categories under the Refugee
Act.2 In 2009, however, the Department of Homeland Security (DHS)
filed a supplemental brief with the Department of Justice (DOJ) on
behalf of a battered woman. The brief argued that battered women
should be granted asylum under certain circumstances. This develop-
ment is a step in the right direction, but it is not enough because
whatever progress has been made under the Obama Administration
could be halted and even reversed with any future administration.
     President Obama and Congress must work in unison to amend
the Refugee Act of 1980 (Refugee Act) and formally recognize bat-
tered women as members of a “particular social group” for asylum
purposes. Additionally, the DHS and DOJ, the two agencies respon-
sible for adjudicating asylum claims, must also issue joint regulations
implementing this change. If this is not done, asylum law adjudicators
will continue to produce inconsistent results leading to an unjust and
inefficient system.
     Part I of this Comment will present a brief history of refugee and
asylum law in the United States. Specifically, it will explain the adju-
dication process and why this process fails to produce consistent re-

      1. Barack Obama, President-Elect, Victory Speech (Nov. 4, 2008) (transcript available at
http://www.npr.org/templates/story/story.php?storyId=96624326) [hereinafter Speech].
      2. Refugee Act of 1980, PL 96 212, 96th Cong. 8 U.S.C. § 1101 (2006) [hereinafter Act];
see Edward M. Kennedy, The Refugee Act of 1980, 15 INT’L MIGRATION REV. 141 (1981).
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2011]                            VICTIMS OF DOMESTIC VIOLENCE                                 319

sults. Part II highlights the evolution of the term “particular social
group” and how this category has provided gender-based claims an
avenue for asylum. Part III will demonstrate how politics has directly
impacted and encouraged disparate adjudication as evidenced by the
stories of two battered women who came to the United States seeking
asylum. Part IV will illustrate, through a case study of China’s “One
Child Policy,” that the appropriate response to the current inefficient
system is to immediately pass legislation and joint-regulations. Fi-
nally, Part V rebuts the argument that granting asylum to battered
women will open the floodgates. This comment concludes that, unless
the Obama Administration’s current policy is formally adopted and
codified, battered women will continue to face an inconsistent and un-
certain future in asylum adjudication.

A. Asylum Law and Why it Fails Battered Women
        1. The Origins of Asylum Law in the United States
     In 1945, when the United States signed the United Nations Char-
ter (Charter), it extended “its longstanding recognition of an ‘interna-
tional minimum standard’ to include all human beings rather than just
aliens.”3After Congress ratified the Charter, it served as the “supreme
law of the land.”4 Shortly thereafter, Congress also ratified the 1951
United Nations Convention Relating to the Status of Refugees5 and
its 1967 Protocol6 (collectively, “Convention”).7 According to the
Convention, a refugee is any individual who “owing to [a] well-
founded fear of being persecuted for reasons of race, religion, nation-
ality, membership of a particular social group or political opinion, . . .
is unable, or owing to such fear, is unwilling to avail himself of the

     3. Richard B. Lillich, Invoking International Human Rights Law in Domestic Courts, 54 U.
CEN. L. REV. 367, 371 (1985). Since then, the United States has committed itself to several
other international human rights instruments: Universal Declaration of Human Rights of 1948,
the UN Covenant on Civil and Political Rights of 1966, and the American Convention on
Human Rights of 1969. With an increase in immigration laws, Congress passed the Immigration
and Nationality Act in 1952 and transferred all existing immigration laws to that title. It is a
complicated and intertwined set of laws that also embodies the country’s international
     4. Id. However, domestic courts have interpreted the human rights clause of the UN Char-
ter as non-self executing clauses.
     5. 1951 United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189
U.N.T.S. 150 [hereinafter Convention].
     6. 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19
U.S.T. 6223, 606 U.N.T.S. 267.
     7. Lillich, supra note 3, at 386. By contrast, domestic courts interpret containing self-exe-
cuting provisions.
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protection of that country.”8 Once refugee status is acquired, the Con-
vention provides that a member state to the Convention cannot return
the refugee to the “persecuting” country from which he fled.9
     In 1980, Congress passed its first substantial piece of refugee re-
form, the Refugee Act.10 The Refugee Act symbolized the United
States’ “commitment to . . . refugees around the world” and embodied
language similar to the language used by the Convention.11 Most sig-
nificantly, it created an asylum provision for the first time in immigra-
tion law: if an individual qualifies for refugee protection and applies
for such protection at or after port of entry into the United States, he
or she is eligible for asylum.12 Despite Congress’ intention that the
Refugee Act mirror the protections afforded to refugees under the
Convention, adjudicators have restrictively interpreted the language
of the Refugee Act. Instead, domestic courts13 have used the Conven-
tion as merely a “policy backdrop” during its quest to interpret the
language of the Refugee Act.14

       2. Qualifying for Asylum
      The Refugee Act’s requirements can be parsed into four separate
elements. First, the applicant must prove that they are afraid of perse-
cution.15 Second, this fear of persecution must be well-founded.16
Third, the persecution feared must be on account of one of the five
recognized protected categories.17 Lastly, the applicant, because of
this fear, is “unable or unwilling to return to his country of nationality
or to the country in which he last habitually resided.”18
      As to the first element, arriving at a uniform and consistent defi-
nition and interpretation of the term “persecution” has been challeng-
ing process adjudicators because neither the Refugee Act, nor any of
its accompanying regulations explicitly define the term.19 Courts have,

     8. Convention, supra note 5, at 152.
     9. Lillich, supra note 3, at 386.
    10. See Kennedy, supra note 2, at 141.
    11. Id. at 142.
    12. Id. at 150.
    13. Throughout this Comment, the word “court” includes the Board of Immigration Ap-
peals (BIA) unless specified otherwise.
    14. See Lillich, supra note 3, at 388.
    15. Matter of Acosta,,19 I. & N. Dec. 211, 233 (B.I.A. 1985), overruled in part by In re
Mogharrabi,19 I. & N. Dec. 439 (B.I.A. 1987).
    16. Id. at 213.
    17. Id.
    18. Id.
    19. National Immigrant Justice Center, Basic Procedural Manual for Asylum Representation
Affirmatively and in Removal Proceedings, ASYLUMLAW.ORG, at 9-10, available at http://www.
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however, interpreted this term broadly.20For example, in Desir v.
Ilchert, the Ninth Circuit defined “persecution” as “the infliction of
suffering or harm upon those who differ (in race, religion or political
opinion) in a way that is regarded as offensive.”21 This definition in-
cludes non-life threatening abuse.22 The only limitation is that the per-
secution must be at the hands of the government itself or by a group
the government is unable or unwilling to control.23
     Next, an applicant’s fear of persecution must be well founded. As
with the first element, courts have interpreted this requirement
broadly. The standard used is whether the applicant’s fear is such that
“a reasonable person in the same or similar circumstances as the ap-
plicant would also fear persecution.”24 To meet this standard, an appli-
cant must prove the following: “(1) the alien must possess a belief or
characteristic that a persecutor seeks to overcome in others by means
of punishment of some sort; (2) the persecutor is already aware, or
could . . . become aware, that the alien possesses this belief or charac-
teristic; (3) the persecutor has the capability of punishing the alien;
and (4) the persecutor has the inclination to punish the alien.”25
Courts analyze this requirement using a “common sense”
     Third, an applicant must also prove that his persecution is on ac-
count of his membership in one of the five protected classes, often
referred to as the “nexus” element.27 The five recognized protected
classes are race, religion, nationality, political thought and member-
ship in a particular social group. Here, the question is whether the
applicant’s membership in any of the classes was “at least one central
reason” for the persecution.28 Courts generally recognize that there is
a nexus for the categories of race, religion, and nationality.29 For the

asylumlaw.org/docs/united_states/MIHRC_manual_200506.pdf [hereinafter Manual] (last visited
Sep. 18, 2011).
    20. Id.
    21. Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir. 1988) (quoting Kovac v. INS, 407 F.2d 102,
107 (9th Cir. 1969)).
    22. Manual, supra note 19, at 9.
    23. Id. at 10.
    24. In re Mogharrabi, 19 I. & N. Dec. 439, 445 (B.I.A. 1987).
    25. Id. at 446 (removing the word ‘easily’ from the second element as provided by Matter of
Acosta, supra note 15).
    26. Id. at 445.
    27. Act, supra note 2, at §1101(a)(42)(A).
    28. Manual, supra note 19 at 11 n.1. “The REAL ID Act (P.L. 109-13) added the ‘one
central reason’ burden of proof to asylum claims. Therefore, this burden only applies to asylum
applications filed on or after May 11, 2005.” Id.
    29. Id. at 12.
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last two categories, however, the nexus requirement is quite difficult
to prove and is far more controversial.30 To establish that a nexus ex-
ists between persecution and the individual’s political thoughts, the
applicant must prove that the harm would not have been inflicted had
the individual not held his political opinion.31 The nexus requirement
for persecution based on membership in a particular social group is
discussed below in Section II.
      Finally, an asylum applicant must show they could not avoid fur-
ther persecution by simply relocating within his home country.32 Ini-
tially, the government agency has the burden of showing that “under
the circumstances, it would have been reasonable for the applicant to
do so.”33 If this showing is made, the burden switches to the applicant
to negate that finding.34 There are a number of factors that are con-
sidered in this final step, such as “social and cultural constraints, age
and health, and social and familial ties.”35 This element is one of the
most difficult elements for an asylum applicant to satisfy because it
requires the applicant provide a strong evidentiary record that demon-
strates he has exhausted all other options within his home country.36


     Immigration enforcement has gone through a myriad of changes
and both the DHS and the DOJ adjudicate asylum claims. Each
agency, however, has its own set rules for interpreting the Refugee
Act.37 Initially, the Immigration and Naturalization Service (INS) was
responsible for administering and enforcing immigration laws.38 Then
in 1940, it was moved from the Department of Labor to the DOJ.39 In
2002, President George W. Bush established the DHS40 and the fol-

    30. See id.
    31. Brief for Respondents at 22, In reL.R., (B.I.A. 2009), available at http://cgrs.uchastings.
edu/pdfs/Redacted%20DHS%20brief%20on%20PSG.pdf [hereinafter 2009 Brief].
    32. Id. at 27.
    33. Id.
    34. See id.
    35. Id.
    36. REGINA GERMAIN, Asylum Primer 32, 90-92 (6th ed. 2010).
    37. 8 C.F.R. pt. 1; 8 C.R.F. pt. 1001.
    38. Records of the Immigration and Naturalization Service [INS], NATIONAL ARCHIVES,
http://www.archives.gov/research/guide-fed-records/groups/085.html (last visited Dec. 15, 2010).
    39. Id.
    40. Homeland Security Act of 2002, Pub. L. No. 107-296, 117 Stat. 745 (enacted Nov. 25,
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lowing year, many of INS’s immigration functions were transferred to
      One agency within DHS is the U.S. Citizenship and Immigration
Services, whose asylum officers are currently responsible for adjudi-
cating affirmative asylum claims.42 The DOJ, however, remained sig-
nificantly powerful due to the Executive Office for Immigration
Review, which consisted of immigration judges and the Board of Im-
migration Appeals (BIA) who collectively were in charge of adminis-
tering and reviewing immigration laws.43 In practice, the Executive
Office for Immigration Review not only reviews, but often also over-
turns DHS decisions.44 As a result, it is common for an individual who
initially affirmatively applied to find herself in a removal proceeding
fighting a defensive asylum application before the Executive Office
for Immigration Review.45 An applicant may face drastically different
sets of policies that often lead to conflicting or inconsistent results.

     Recently, battered women have been able to define themselves
successfully as members of a particular social group and prove that
they suffered persecution on account of such membership. This
change, unfortunately, came after years of inconsistent application
and interpretation of what constitutes a “particular social group.” The
Office of the United Nations High Commissioner for Refugees
(UNHCR) points out that this category has the “least clarity and it is
not defined by the [Convention] itself.”46 It proposed that adjudica-
tors interpret the term to include individuals who “share a common
characteristic other than their risk of being persecuted, or who are
perceived as a group by society” to possess a common characteristic,

    41. History: Who became Part of the Department?, DEPARTMENT OF HOMELAND SECURITY,
http://www.dhs.gov/xabout/history/editorial_0133.shtm (last visited Dec. 15, 2010). With the
transfer, INS seized to exist. Instead the majority of its functions are performed by the U.S.
Citizenship and Immigration Services of the Department of Homeland Security.
    42. Id. (Explaining that the other two are the U.S. Customs and Border Protection and the
U.S. Immigration and Customs Enforcement.).
    43. EOIR at a Glance, U.S. DEPARTMENT OF JUSTICE, http://www.justice.gov/eoir/press/
2010/EOIRataGlance09092010.htm (last visited Dec. 15, 2010).
    44. Id.
    45. Manual, supra note 19, at 9.
bership of a particular social group” within the context of Article 1A(2) of the 1951 Convention
and/or its 1967 Protocol relating to the Status of Refugees, UNITED NATIONS HIGH COMMIS-
SIONER FOR REFUGEES (UNHCR), 2 (May 7, 2002), http://www.unhcr.org/3d58de2da.html [here-
inafter GUIDELINES].
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respectively named the “immutability” approach and the “external
perception” approach.47
     Here, in the United States, there is a split between those two pre-
vailing approaches.48 The “immutable” approach is generally used for
gender-based asylum claims. But, even then, adjudicators do not in-
terpret either approach to fully embrace gender as a recognized char-
acteristic. In Matter of Acosta, the BIA, following UNHCR’s
guidelines, interpreted the term broadly and simply required that
there be a “shared immutable characteristic” between the members.49
It specifically announced that a “shared characteristic might be innate
such as sex.”50 It also stated that deciding what the qualifying charac-
teristic is “remains to be determined on a case-by-case basis.”51 Un-
fortunately, subsequent courts have seized this latter language as
controlling. Those who claim to use the Acosta approach in actuality
require much more than Acosta ever intended, and instead have
turned it into an “immutable shared characteristic plus” approach.52
     Then, in 1996, the BIA further paved the way for gender-based
asylum claims in In re Kasinga.53 A young 19-year-old Togo native
fled her country for fear of forced female genital mutilation.54 Young
girls customarily underwent this procedure by the age of fifteen.55
The BIA stated that “gender-based, or gender-related, asylum claims
within the ‘membership in a particular social group’ construct . . . [are]
entirely appropriate and consistent with the developing trend of juris-

     47. Id. at 2-3.
     48. In re Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985), overruled in part by In re Moghar-
rabi, 19 I. & N. Dec. 439 (B.I.A. 1987). (“[W]e interpret the phrase ‘persecution on account of
membership in a particular social group’ to mean persecution that is directed toward an individ-
ual who is a member of a group of persons all of whom share a common, immutable characteris-
tic.”) and Gomez v. I.N.S., 947 F.2d 660, 664 (2d Cir. 1991) (“A particular social group is
comprised of individuals who possess some fundamental characteristic in common which serves
to distinguish them in the eyes of a persecutor-or in the eyes of the outside world in general.”).
     49. Acosta, 19 I. & N. Dec. at 233.
     50. Id.
     51. Id.
     52. See In re Kasinga, 21 I. & N. Dec. 357, 365 (B.I.A. 1996) (“In the context of this case, we
find the particular social group to be the following: young women of the Tchamba-Kunsuntu
Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice.”); Mo-
hammed v. Gonzales, 400 F.3d 785, 797 (9th Cir. 2005) (“Few would argue that sex or gender,
combined with clan membership or nationality, is not an ‘innate characteristic,’ ‘fundamental to
individual identit[y].’ ”).
     53. Kasinga, 21 I. & N. Dec. at 358.
     54. Id.
     55. Id. (stating that Kasinga avoided the procedure because her wealthy and influential
father opposed the practice, but after her father died, her aunt married her off and made prepa-
rations for Kasinga to undergo the procedure).
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prudence in the United States and Canada as well as with interna-
tional norms.”56 The BIA also noted that this type of persecution
satisfies the “on account of” requirement because female genital muti-
lation “has been used to control woman’s sexuality” and is also “char-
acterized as a form of ‘sexual oppression’ that is ‘based on the
manipulation of women’s sexuality in order to assure male dominance
and exploitation.’”57Kasinga, therefore, was one of the first cases that
successfully used gender to satisfy the Acosta test. However, because
the court defined the group as “[y]oung women who are members of
the Tchamba-Kunsuntu Tribe of northern Togo who have not been
subjected to the tribal practice of female genital mutilation, and who
oppose the practice,” the BIA applied the test much more strictly than
Acosta required.58 As the stories of R.A. and L.R.59will illustrate, this
additional burden had a significant impact on the adjudication of asy-
lum claims brought by victims of domestic abuse.

A. The Clinton Administration: Hope for Battered Women Seeking
     Since Kasinga, victims of domestic abuse have also tried to gain
asylum protection as members of a particular social group. R.A. is a
Guatemalan woman who endured more then ten years of violence and
torture from her husband.60 During this time, her husband dislocated
her jaw because her menstrual period was late and then “kicked her
violently in her spine . . . [w]hen she refused to abort her 3-to 4-
month-old fetus.”61 He often brutalized her “whenever he felt like it,”
even in public.62 On one occasion, he caused her to bleed “severely
for 8 days . . . [when] he kicked [her] in her genitalia, apparently for
no reason.”63 R.A.’s husband also raped her repeatedly; “[h]e would
beat her before and during the unwanted sex . . . threaten her with

    56. Id. at 377.
    57. Id. at 366-67.
    58. Sarah Siddiqui, Note, Membership in a Particular Social Group: All Approaches Open
Doors for Women to Qualify, 52 ARIZ. L. REV. 505, 515 (2010).
    59. Asylum captions only contain the abbreviations of the applicant’s name due to the high
sensitivity of the claims. See, e.g., REGINA GERMAIN, ASYLUM PRIMER 200 (6th ed. 2010). How-
ever, R.A.’s name has been released through the media; she is Rodi Alvarado. See, e.g., Karen
Musalo, Matter of R-A-: An Analysis of the Decision and its Implications, 76 INTERPRETER RE-
LEASE no. 30, 1177, 1178 (1999). L.R.’s name has not been made public.
    60. In re R-A-, 22 I. & N. Dec. 906, 908 (B.I.A. 2001), remanded, 23 I. & N. Dec. 694 (B.I.A.
2005), stay lifted, 24 I. & N. Dec. 629 (B.I.A. 2008).
    61. Id.
    62. Id.
    63. Id.
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death . . . [and] passed on a sexually transmitted disease . . . from his
sexual relations outside their marriage.”64 Yet none of this compared
to the pain she suffered “when he forcefully sodomized her.”65 When
she did protest, her husband would tell her”you’re my woman, you do
what I say.”66
     No matter where she fled within Guatemala, her husband would
find her, and this only worsened the intensity of his abuse.67 Her hus-
band constantly reminded her that “calling the police would be futile”
because of his military connections.68 She defiantly contacted the po-
lice on two separate occasions, but no one came to her aid.69 When
she was finally given the opportunity to appear before a Guatemalan
judge, his response to her was “that he would not interfere in domestic
disputes.”70 R.A. was unable to secure assistance from the Guatema-
lan government.71 As a result, R.A. was forced to flee from Guate-
mala and seek protection in the United States.72
     In September 1996, an immigration judge granted R.A. asylum.73
The immigration judge found R.A.’s claim credible; she proved that
she had suffered past persecution and that the “Guatemalan Govern-
ment was either unwilling or unable to control [her] husband.”74 Ad-
ditionally, the immigration judge held that “Guatemalan women who
have been involved intimately with Guatemalan male companions,
who believe that women are to live under male domination . . . [are]
members of [a particular social group and] are targeted for persecu-
tion by the men who seek to dominate and control them.”75
     R.A.’s victory, however, was short-lived. The then-INS immedi-
ately appealed the decision and argued that the immigration judge in-
correctly interpreted the term “particular social group.”76 The

    64. Id.
    65. Id.
    66. In re R-A-, 22 I. & N. Dec. at 908.
    67. Id. at 908-09.
    68. Id. at 909.
    69. Id.
    70. Id.
    71. See In re R-A-, 22 I. & N. Dec. at 909.
    72. Id.
    73. Id. at 907.
    74. Id. at 911.
    75. In re R-A-, 22 I. & N. Dec. at 911.(“The Immigration Judge further found that, through
the respondent’s resistance to his acts of violence, her husband imputed to the respondent the
political opinion that women should not be dominated by men, and he was motivated to commit
the abuse because of the political opinion he believed her to hold.”).
    76. See, e.g., Karen Musalo, Matter of R-A-: An Analysis of the Decision and its Implica-
tions, 76 INTERPRETER RELEASE no. 30, 1177, 1181 (1999).
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government’s position was that R.A. was not abused as part of a
larger social group, but rather was abused because her husband was a
violent man.77 The BIA agreed with the INS finding that R.A., al-
though clearly a victim of horrible domestic abuse, was unable to de-
fine herself as a member of a particular social group as recognized by
refugee law.78 Additionally, even assuming arguendo that she was a
member of a particular social group, she was unable to establish that
she was persecuted on account of her membership in the group.79
     The BIA found that R.A.’s claimed social group failed both be-
cause it did not have “a voluntary associational relationship” and she
was unable to show “whether anyone in Guatemala perceived this
group to exist in any form whatsoever.”80 The BIA explained that
“the term ‘particular social group’ is to be construed in keeping with
the other four [categories]” which are all recognized as such groups by
society.81 Here, R.A. did not show that her claimed group was “rec-
ognized and understood to be a societal faction . . . within Guatemala
[nor] . . . that the victims of spous[al] abuse view[ed] themselves as
members of this group [or] . . . that their male oppressors [saw] their
victimized companions as part of this group.”82 More importantly, be-
cause she failed to show that her claimed group was perceived as a
social group, she was unable to sufficiently show that her husband per-
secuted her on account of that group, especially when all the evidence
presented indicated that she was his only victim.83 The court distin-
guished Kasinga by stating that although Kasinga’s fear stemmed from
threats by her aunt and husband, there was sufficient evidence that
female genital mutilation was so pervasive throughout the country
that either she or her family would be stigmatized if she did not un-
dergo the procedure.84 R.A., however, was unable to prevail and show
that domestic violence was either pervasive or encouraged in Guate-
mala as “societally important.”85
     The trend in asylum adjudication is highly influenced by politics.
President Bill Clinton’s position on immigration has been described as

    77.   R-A-, 22 I. & N. Dec. at 911 (“The Service also contends that the respondent’s husband
did not   persecute the respondent because of an imputed political opinion.”).
    78.   Id. at 920, 927-28.
    79.   Id. at 920.
    80.   Id. at 918.
    81.   Id.
    82.   In re R-A-, 22 I. & N. Dec. at 918.
    83.   Id. at 918-20.
    84.   Id. at 924.
    85.   Id.
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one of “the most long lasting imprints he leaves on America.”86He
believed that immigrants played a role in the nation’s proud cultural
diversity and that “those who argue against immigration” should be
repudiated for hiding behind a “thinly veiled pretext for discrimina-
tion.”87 In December 2000, as a direct response to the BIA’s decision
in R.A., President Clinton directed the DOJ to propose new regula-
tions that would amend the INS guidelines for establishing asylum eli-
gibility and alleviate the myriad of inconsistencies in case law
interpreting the term “particular social group.”88 The proposed rules
codified Acosta and provided significant clarification.89 Most impor-
tantly, the DOJ emphasized that under certain circumstances, both
gender and “marital status could be considered immutable.”90
     However, the DOJ warned that this new rule could not be used to
define a particular social group by alleging the same harm the appli-
cant claimed as persecution.91 The DOJ also refused to adopt a “cate-
gorical rule” that every victim of domestic violence automatically
receives a presumption that the nexus element is met.92 Notwith-
standing these warnings, the proposed rules seemed promising. In
light of the general disappointment with the R.A. decision and the
proposed rules, on the last day of President Clinton’s term in office,
Attorney General Janet Reno vacated and remanded R.A.’s case back
to the BIA with an order to stay the decision until the proposed rules
were formally adopted.93 Unfortunately, the proposed rules were
never adopted and R.A.’s application lingered for another four

    86. Ira Mehlman, Clinton’s Subtle, but Historic, Redefinition of U.S. Immigration Policy,
FED’N FOR AM. IMMIGR. REFORM (Jan. 10, 2001), http://www.fairus.org/site/PageServer?page
THE 21ST CENTURY, 133-134 (1996).

    88. Asylum and Withholding Definitions, 65 Fed. Reg. 76588, 76588-89 (proposed Dec. 7,
2000) (to be codified at 8 C.R.F. pt. 208).
    89. Id. at 76593 (“A particular social group is composed of members who share a common,
immutable characteristic, such as sex, color, kinship ties, or past experience, that a member ei-
ther cannot change or that is so fundamental to the identity or conscience of the member that he
or she should not be required to change it.”).
    90. Id.
    91. Id. at 76594.
    92. Id. at 76595 (stating that a case-by-case approach offered the flexibility required to fur-
ther develop this area of law).
    93. In Re R-A-, supra note 60, at 906.
    94. Id.
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B. The Bush Administration: A Step Back for Battered Women

     The Clinton Administration’s pro-immigrant position was re-
placed with President George W. Bush’s “hard-line” approach to im-
migration reform.95 Just before the INS was permanently transferred
into the newly created Department of Homeland Security, Attorney
General Ashcroft announced that he planned to issue new regulations
that would severely undercut the previously proposed rules by the
DOJ.96 Many thought this was a last ditch effort to control the issue
on the eve of the DOJ losing jurisdiction on the matter.97 Specifically,
the new regulations would directly affect R.A. because the rules
threatened to reinstate the BIA decision that denied her asylum.98
The public reacted strongly to this announcement.99 Several House
members were concerned that the regulations would reverse the cur-
rent trend toward granting battered women asylum and wrote Ash-
croft urging him not to follow through with his regulations which
rejected gender-related violence as a basis for asylum.”100 Addition-
ally, they severely warned Ashcroft that his proposed regulations
would “condemn several women and girls to death.”101 Ashcroft failed
to pass his proposed rules before the INS move. However, because the
BIA remained with the DOJ, Ashcroft still retained jurisdiction.102
     In December 2003, Ashcroft ordered briefing on R.A.’s case and
many organizations intervened on her behalf. The UNHCR issued an
Advisory Opinion urging Ashcroft to adopt the international stan-
dards for gender-related persecution claims and to consider its inter-
pretation of the term “particular social group.”103 It reminded
Ashcroft that U.S. statutes should be construed consistent with inter-

    95. George W. Bush’s Immigration Policy, ASSOCIATED CONTENT, http://www.associated
content.com/article/242279/george_w_bushs_immigration_policy.html (last visited Aug. 28,
    96. Women Asylum Seekers in Jeopardy, LAWYERS COMMITTEE FOR HUMAN RIGHTS (Feb.
21, 2003), http://www/lchr.org/media/2003_alerts/0221.htm.
    97. Id.
    98. Id.
    99. Id.
   100. Letter from Gregory W. Meeks et al., Congressman, House of Representatives, to John
D. Ashcroft, Attorney Gen., U.S. Dep’t of Justice (Feb. 27, 2003) (on file at http://cgrs.uchast-
   101. Id.
   102. In re R-A-, 24 I. & N. Dec. 629, 629 (B.I.A. 2008).
   103. Letter from Eduardo Arboleda, Deputy Reg’l Representative, United Nations High
Comm’r for Refugees, to John D. Ashcroft, Attorney Gen., (Jan. 9, 2004) (on file at http://cgrs.
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330             SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW                                 [Vol. 18

national obligations.104 It also stated that the term “particular social
group”“should be read in an evolutionary manner, open to the diverse
and changing nature of groups in various societies and evolving inter-
national human rights norms.”105 Furthermore, the UNHCR explicitly
provided an interpretation that reconciled the two leading ap-
proaches, immutability and the social perception, into a single
       A particular social group is a group of persons who share a common
       characteristic other than a risk of being persecuted, or who are per-
       ceived as a group by society. The characteristic will often be one
       which is innate, unchangeable, or which is otherwise fundamental to
       identity, conscience or the exercise of one’s human rights.106
     The UNHCR found that R.A.’s “particular social group can be
defined by her sex, marital status, and her position in a society that
condones discrimination against women.”107
     Additionally, the UNHCR argued that R.A. was in fact perse-
cuted on account of her group. According to UNHCR, group mem-
bership “must be a relevant contributing factor, though it need not be
shown to be the sole, or dominant cause.”108 The UNHCR also pro-
vided that in situations where the persecution was at the hands of a
non-state actor or for reasons unrelated to a recognized ground, but
where there existed an “inability or unwillingness of the State to offer
protection,” the nexus requirement was met.109 This alternative anal-
ysis is sometimes referred to as a “bifurcated nexus.”110 Using this
approach, UNHCR concluded that although R.A.’s husband may
have been abusing her in part for personal reasons, there was still
enough evidence that he was also abusing her because she was his
property through marriage.111 As UNHCR explained, in Guatemala,

   104. Id. (citing Murray v. Charming Betsy, 6 U.S. 64, 118, (1804)) (“[A]n act of Congress
ought never to be construed to violate the law of nations if any other possible construction
remains.”); see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 432-33 (1987) (“[The US Supreme Court
found] abundant evidence of an intent to conform the definition of “refugee” and our asylum
law to the United Nation’s Protocol to which the United States has been bound since 1968.”).
   105. See Letter from Eduardo Arboleda to John D. Ashcroft, supra note 103, at 7.
   106. Id. at 8.
   107. Id. at 9 (“Women are expected to accept their ‘fate’ without protest and without involv-
ing the authorities at all. This is another element identifying her as part of a particular social
   108. Id. at 10.
   109. Id.
   110. Letter from Eduardo Arboleda to John D. Ashcroft, supra note 103, at 10-11 n. 50
(“There is ample evidence that [Guatemala] discriminates against women and tolerates male
dominance and abuse of married women by their husbands.”).
   111. Id.
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2011]                            VICTIMS OF DOMESTIC VIOLENCE                                  331

it was understood that R.A.’s husband would not likely face prosecu-
tion and therefore, “[she] should be recognized as a refugee” by the
United States.112
     Others also advocated on behalf of R.A. . The DHS submitted a
supplemental brief (2004 Brief). It recommended that the DOJ grant
victims of domestic abuse asylum under such extreme circumstances
as R.A.’s.113 Additionally, the Senate wrote Ashcroft a letter and
urged him to issue regulations in line with those promulgated in the
2004 Brief.114 The Senate defused fears of mass asylum applications
by pointing out that other countries already recognized gender-based
asylum claims and that in those countries it did not lead to a “prolifer-
ation of such claims.”115 However, Ashcroft resigned without ever
reaching a decision in R.A.’s asylum claim.116
     Shortly after Ashcroft’s resignation, L.R., another foreign victim
of domestic abuse, arrived in the United States and sought asylum
protection. L.R. endured years of torture at the hands of her com-
mon-law husband in Mexico.117 She was only a teenager when he,
fourteen years her senior, began to sexually abuse her.118 He used his
position as her physical education coach combined with his family’s
wealth and influence “to dominate and scare her.”119 He repeatedly
and violently raped her for years, even while she was pregnant.120 On
one occasion, while pregnant, L.R. tried to escape and was caught by
her husband who beat her and set the bed on fire while she was
asleep.121 When L.R. sought help from the authorities, she was told
that her situation was a private and domestic matter regardless of visi-

   112. Id. at 10, 13.
   113. Rachel L. Swarns, Ashcroft Weighs Granting Political Asylum to Abused Women, N.Y.
TIMES, Mar. 11, 2004, at A1.
   114. Letter from Hillary Rodham Clinton et al., U.S. Senator, to John D. Ashcroft, Attorney
Gen., U.S. Dep’t of Justice (June. 16, 2004) (on file at http://cgrs.uchastings.edu/documents/advo-
   115. Id.
   116. John David Ashcroft, DEPARTMENT OF JUSTICE, http://www.justice.gov/ag/aghistpage.
php?id=78 (last visited Aug. 28, 2011).
   117. See Amended Declaration of L.R. in Support of Application for Asylum at 7 (Dec. 30,
2005) [hereinafter Declaration of L.R.] available at http://graphics8.nytimes.com/packages/pdf/
   118. Id. at 3.
   119. Id.
   120. See id. at 7-8.
   121. Id. at 7.
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332             SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW                              [Vol. 18

ble injuries.122 On another occasion, a judge told her that he would
assist her, but only if she “had sex with him” first.123
     L.R. fled from her husband to the United States.124 She was auto-
matically placed in removal proceedings because she applied for asy-
lum seven months past the one-year window.125 On October 15, 2007,
an immigration judge denied L.R.’s application for removal because
she articulated her particular social group as “Mexican women in an
abusive relationship who are unable to leave.”126 The immigration
judge found this formulation impermissibly circular and “centrally de-
fined by the existence of the abuse [she] fear[ed].”127 Meanwhile,
then Attorney General Mukasey remanded R.A.’s case back to the
BIA for reconsideration.128

C. A Renewed Promise: The Obama Administration

     With a new administration in office, the possibility of asylum for
battered women appears promising. First, the DHS intervened in
L.R.’s case by once again submitting a supplemental brief (2009 Brief)
supporting granting her asylum.129 Many saw this as a direct response
by the Obama Administration against the Bush Administation’s anti-
asylum policy for battered women.130 The 2009 Brief explained that in
order to show membership in a particular social group, an applicant
must demonstrate that its members “share a common immutable or
fundamental trait, [that is] socially distinct or ‘visible,’ . . . and defined
with sufficient particularity to allow reliable determinations about
who comes within the group[s] definition.”131 The DHS recom-
mended that the BIA remand L.R.’s case back to an immigration
judge for further investigation and to take into account “intervening
case law” and the alternative formulations for meeting the require-

   122. Declaration of L.R., supra note 117, at 8.
   123. Id. at 13.
   124. Id. at 24.
   125. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [IIRIRA], Pub.
L. No. 104-208, § 601, 110 Stat. 3009-546 [hereinafter IIRIRA] (codified as amended at 8 U.S.C.
§ 1101(a)(42) (Supp. II 1996) (enacted as Division C of the Departments of Commerce, Justice,
State, and the Judiciary Appropriations Act for 1997).
   126. 2009 Brief, supra note 31, at 2, 5.
   127. Id. at 6.
   128. In re R-A-, 24 I. & N. Dec. 629, 632 (B.I.A. 2008).
   129. 2009 Brief, supra note 31, at 16.
   130. Julia Preston, New Policy Permits Asylum for Battered Women, N.Y. TIMES, July 15,
2009, at A1.
   131. 2009 Brief, supra note 31, at 16.
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2011]                            VICTIMS OF DOMESTIC VIOLENCE                             333

ments it suggested in its 2009 Brief.132 Under this framework, the
DHS stated that L.R.’s proposed group is either “[M]exican women in
domestic relationships who are unable to leave” or “[Mexican] women
who are viewed as property by virtue of their positions within a do-
mestic relationship.”133 The DHS also reiterated that “this does not
mean that every victim of domestic violence would be eligible for asy-
lum” and that all other elements of an asylum claim must still be
     In the meantime, progress was made in R.A.’s case. On October
28, 2009, the DHS wrote a single-paragraph letter to the Executive
Office for Immigration Review (EOIR). In that letter, the DHS ex-
plained that after it had reviewed additional evidence provided by
R.A., it found that she was “eligible for asylum and merits . . . asylum
as a matter of discretion.”135 The EOIR remanded R.A.’s case back to
an immigration judge for determination. Finally, on December 10,
2009, after a fourteen year-long legal battle, R.A. was granted asy-
lum.136 The immigration judge’s decision simply read, “[i]nasmuch as
there is no binding authority on the legal issues raised in this case, I
conclude that I can conscientiously accept what is essentially the
agreement of the parties [to grant asylum].”137
     Congress also took some steps in the right direction. The House
of Representatives introduced a bill that would eliminate a rule that
automatically denied affirmative asylum claims if they were filed a
year or longer after arriving in the United States.”138 L.R. and 35,000
other applicants were denied asylum under this same rule.139 The
House of Representatives expressed concerns that “[v]ictims of tor-
ture and gender-related persecution who flee to the United States
[were] being sent back because of this arbitrary one-year bar.”140 The

   132. See id. at 21 (Explaining that the BIA could not grant L.R. asylum using the DHS
formulations because they were not offered at the initial hearing, remand is appropriate when
new claims are involved and further development of the case is necessary).
   133. Id. at 14.
   134. Id. at 12.
   135. Brief for Respondent, In Matter of Rodi Alavarado-Pena, (BIA 2009), No. A073 753
922, available at http://cgrs.uchastings.edu/about/contact.php.
   136. Documents and Information on Rody Alvarado’s Claim for Asylum in the U.S., CENTER
FOR GENDER & REFUGEE STUDIES, available at http://cgrs.uchastings.edu/campaigns/alvarado.
php (last visited August 27, 2011).
   137. Id.
   138. Restoring Protection to Victims of Persecution Act, H.R. 4800, 111th Cong. (2010).
   139. Press Release, Congressman Jim Moran, Moran, Stark& Watson Demand Safe Haven
for Refugees (Mar. 10, 2010) (on file at http://cgrs.uchastings.edu/pdfs/Moran%20PRESS%20
   140. Id.
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334             SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW                           [Vol. 18

Senate also followed and introduced its own comprehensive immigra-
tion reform bill that did away with the one-year bar rule and the “visi-
bility” requirement from the DHS 2009 Brief.141 On August 4, 2010,
all this progress culminated with an immigration judge’s decision to
grant L.R. asylum.142

IV.      THE STATUS OF ASYLUM                FOR   BATTERED WOMEN         AND
     In light of the uncertainty that remains in asylum law for victims
of domestic violence, the Obama Administration needs to make this
area of law a priority. First, this Administration must work with Con-
gress to formally amend The Refugee Act of 1980. Second, the Ad-
ministration needs to put pressure on its agency heads to issue joint
regulations that formally recognize battered women as a “particular
social group” for purposes of refugee protection. As this Comment
demonstrates, the United States’ position on asylum for victims of do-
mestic violence greatly depends on who is in office. During the Clin-
ton Administration, and for the first time in the United States’ history,
proposed regulations would have recognized battered women as
members of a “particular social group.” At the other extreme, the
Bush Administration not only failed to adopt those regulations, but
rather threatened to issue its own set of regulations that would have
severely undercut the progress made at that point for battered wo-
men. Currently, under the Obama Administration, once again there is
talk of proposing new regulations that will formally recognize that
under certain circumstances, battered women qualify for asylum. The
major deficiency at this point, however, is that no formal regulations
have been adopted by either agency involved in asylum adjudication.

A. A Lesson from the United State’s response to China’s “One
   Child Policy”
     This is not the first time the United States has been faced with
advancing legislation to address the inconsistent and inefficient adju-
dication of asylum claims. In 1979, the Chinese government imple-
mented their “One Child Policy.”143 This zero-tolerance policy

  141. Refugee Protection Act of 2010, S. 3113, 111th Cong. (2010).
  142. Matter of L.R., CENTER FOR GENDER & REFUGEE STUDIES, available at http://cgrs.
uchastings.edu/campaigns/Matter%20of%20LR.php (last visited Aug. 27, 2011).
  143. Charles E. Schulman, The Grant of Asylum to Chinese Citizens Who Oppose China’s
One-Child Policy: A Policy of Persecution or Population Control?, 16 B.C. THIRD WORLD L.J.,
313, 316-17 (1996).
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2011]                            VICTIMS OF DOMESTIC VIOLENCE                            335

imposed penalties that “range[d] from physical force and imprison-
ment to mere persuasion and economic sanctions,” such as “loss of
employment or demotion, fines, and denial of human services” for
families that gave birth to more than one child.144 More “extreme
punishments, namely forced abortion or sterilization,” were also
used.145 Fearing the potential of such penalties, many individuals fled
     Like victims of domestic abuse, once these individuals arrived in
the United States, they were faced with inconsistent rulings on
whether claims based on China’s new policy met the requirements for
persecution based on political opinion.”147 This led then-Attorney
General Edwin Meese to issue a memo that directed “all asylum of-
ficers to give ‘careful consideration’ to Chinese applicants expressing a
fear of persecution based on China’s policy.”148 The BIA, however,
promptly held that the Meese memo was not binding on the BIA or
immigration judges in Matter of Chang.149 As a direct response to
Chang, President George H.W. Bush issued an executive order
“granting asylum to refugees from the One Child Policy.”150 Unfortu-
nately, when the INS issued its final asylum regulations, this language
was omitted.151 Subsequently, the BIA refused to recognize that
Chang was overruled.152
     Other remedial efforts were made, such as a memo in 1991 from
then-INS General Counsel, Grover Joseph Rees, stating that these ap-
plicants “could establish eligibility for asylum.”153 Again, this memo
was not binding on the BIA or immigration judges.”154 The following
four years produced a number of ambiguous decisions.155 Circuit
courts quickly overruled district courts that granted asylum to refu-
gees who fled China because of the One Child Policy.156 For example,
in Guo Chun Di v. Carroll, a district court granted the applicant asy-

  144. Id. at 317.
   145. Id.
   146. Id. at 319.
   147. Id. at 320.
   148. Kimberly Sicard, Section 601 of IIRIRA: A Long Road to a Resolution of United States
Asylum Policy Regarding Coercive Methods of Population Control, 14 GEO. IMMIGR. L.J. 927,
933 (2000).
   149. Chang, No. A-27202715, 1989 BIA LEXIS 13, at *13 (BIA May 12, 1989).
   150. Sicard, supra note 148, at 934.
   151. Id.
   152. Id.
   153. Id.
   154. Id.
   155. See id. at 934-936.
   156. Sicard, supra note 148, at 934-36.
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336             SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW                             [Vol. 18

lum finding that he met the requirement for persecution on account of
his political opinion.157 The Fourth Circuit reversed the decision and
stated that Chang was still controlling precedent and, therefore, this
applicant was not eligible for asylum because he opposed China’s pol-
icy.158 This same “yes-then-no” adjudication pattern played out in the
Second Circuit as well.159
      Congress’ appropriate response to this inefficient application pro-
cess was the Illegal Immigration and Immigrant Responsibility Act of
1996, specifically Section 601(a) (IIRIRA).160 IIRIRA enlarged the
definition of refugee with the following language:
       For purposes of determination under this Act, a person who has
       been forced to abort a pregnancy or to undergo involuntary sterili-
       zation, or who has been persecuted for failure or refusal to undergo
       such a procedure or for other resistance to a coercive population
       control program, shall be deemed to have been persecuted on ac-
       count of political opinion, and a person who has a well founded fear
       that he or she will be forced to undergo such a procedure or subject
       to persecution for such failure, refusal, or resistance shall be
       deemed to have a well founded fear of persecution on account of
       political opinion.161
     While IIRIRA retained the same “evidentiary burden” that all
asylum-seekers must meet, meaning that all other elements still
needed to be satisfied,162 it helped asylum-seekers who had been the
victim of coercive family planning measures or who reasonably feared
that he or she would be subjected to them if they returned to their
country presumptively satisfy the element of a “well founded fear of

   157. Guo Chun Di v. Carroll, 842 F. Supp. 858, 874 (E.D. Va. 1994) rev’d sub nom. Guo
Chun Di v. Moscato, 66 F.3d 315 (4th Cir. 1995).
   158. Sicard, supra note 148, at 935.
   159. Id. at 936 (for example, the Second Circuit).
   160. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 §601(a) (enacted
as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropria-
tions Act of 1997), 8 U.S.C. §1101 (2006).
   161. Kyle R. Rabkin, The Zero-Child Policy: How the Board of Immigration Appeals Dis-
criminates Against Unmarried Asylum-Seekers Fleeing Coercive Family Planning Measures, 101
NW. U. L. REV. 965, 974 (2007).
   162. Id. at 975.
   163. Id. at 974.
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2011]                            VICTIMS OF DOMESTIC VIOLENCE                            337

B. The Obama Administration Should Amend The Refugee Act
     As the events that led to IIRIRA indicate, inconsistent rules and
“an ad hoc, politicized regime” cannot govern asylum law.164 In gen-
eral, asylum law produces the least consistent results when it comes to
adjudication.165 Discrepancies exist even when there is no change in
the law and their existence is prevalent throughout the process, from
immigration judges up to the Courts of Appeal.166 The problem is fur-
ther compounded because asylum law is administered by two separate
agencies: the DHS whose policy recognizes and grants battered wo-
men asylum,167 and the BIA, which applies inconsistent interpreta-
tions of the term “particular social group” and does not fully
recognize gender as an “immutable characteristic.”168 A clear, legisla-
tive act is the only remedy to ensure that women facing extreme cases
of domestic abuse in foreign countries receive fair adjudication and
protection in the United States.
     Like the various memos issued prior to IIRIRA’s enactment,
neither In re R.A. nor In re L.R. are binding. Both cases provide short
decisions that do not include any analysis. In addition, neither of the
decisions provided guidelines nor legal tests for future cases to apply,
nor do they give any indication if the formulations proposed satisfy
the DOJ’s interpretation of “membership in a particular social
group.” In other words, the only thing the decisions accomplished is
granting these two particular applicants asylum. This is of little help
to other battered women who seek asylum and especially troubling in
light of the clear opposition within the DOJ to recognize gender-
based asylum.169
     The DHS’s 2009 Supplemental Brief is slightly more helpful for
future applicants who seek protection because of domestic abuse. The
Brief states that it “represents the Department’s current position” and
that it was written with the intent to create “better guidance [for] both
adjudicators and litigants.”170 This means that asylum officers must
decide asylum claims consistent with the guidelines announced in this

   164. See Alex Kotlowitz, Asylum for the Worlds Battered Women, N.Y. TIMES, Feb. 11, 2007,
at Sec. 6.
   165. Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Dis-
parities in Asylum Adjudication, 60 STAN. L. REV. 295, 302 (2007).
   166. Id.
   167. See 2009 Brief, supra note 31.
   168. See Matter of Acosta, supra note 48.
   169. Press Release, FEMINIST.COM, U.S. Asylum for Gender Violence Victims Stalled (March
27, 2003) (on file with author at http://www.feminist.com/news/news176.html).
   170. 2009 Brief, supra note 31, at 4-5.
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brief. However, this does not necessarily help women who fail to ap-
ply by the one-year deadline, even by a day. These women are still
automatically denied asylum and placed in removal proceedings
before an immigration judge.171 In contrast to DHS asylum officers,
DOJ immigration judges are not required to follow these guidelines,
which are merely persuasive authority. As demonstrated, this can lead
to inconsistent results.
     Therefore, President Obama should to make this area of law a
priority. During his victory speech, President Obama reminded the
nation that “America’s beacon still burns bright” and that our “true
strength . . . comes . . . from the enduring power of our ideals: democ-
racy, liberty, opportunity and unyielding hope.”172 Advocates ex-
pected his Administration to be a significant contrast to its
predecessor and pick up where the Clinton Administration left off.173
Yet, despite the victories for R.A. and L.R., asylum law is no clearer
today than it was under President Bush’s leadership.
     The appropriate response is to enact new legislation similar to
IRIRA that would amend the Refugee Act by recognizing that, under
certain circumstances, battered women are persecuted on account of
their membership in a particular social group. The language should
mirror the language used in IIRIRA. For example, the legislation
could read as follows:
       “A refugee, for purposes of the Refugee Act, includes any person
       who has been subjected to physical abuse at the hands of their part-
       ner, in a country where women are viewed as property and/or do-
       mestic violence is viewed as a private matter and the individual is
       unable to leave or receive assistance from his or her government,
       shall be deemed to have been persecuted on account of their mem-
       bership in a particular social group.”
     As with IIRIRA, the amended language would create a presump-
tion of persecution on account of membership in a protected category.
While the burden on the applicant would remain the same, it would
create a clear starting point for adjudicators and applicants alike that
would lead to more consistent results.

   171. IIRIRA, supra note 125 (creating among other things, an arbitrary filing deadline that
bars asylum if the application was not filed within one-year of entry unless the applicant meets
one of two exceptions.)
   172. Speech, supra note 1.
   173. See Erica Hagen, Elections Hold Key to Asylum for Abused Women, WOMEN’S ENEWS,
(Nov. 4, 2008), http://www.womensenews.org/story/campaign-trail/081104/elections-hold-key-
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2011]                            VICTIMS OF DOMESTIC VIOLENCE                             339

C. The Obama Administration Should Promulgate Joint
     Until the Refugee Act can be amended, the DHS and the DOJ
should jointly issue regulations that clearly instruct all adjudicating
bodies on the proper analysis for an asylum claim based on domestic
violence. Almost eleven years have passed since the first set of pro-
posed regulations was announced.174 During this period, the DOJ,
through its BIA and immigration judges, has issued numerous incon-
sistent decisions.175 The BIA in particular has required that applicants
demonstrate that their group be “socially visible” in order to meet the
element of membership in a particular social group.176 This is a re-
quirement that the court in Acosta did not intend.177 The nexus re-
quirement between persecution and membership in a particular social
group has also become difficult to interpret and especially disadvanta-
geous to asylum seekers who are victims of domestic abuse.178 The
Obama Administration must exercise its executive powers and put
pressure on both the DHS and the DOJ to issue joint regulations that
revert back to Acosta’s requirements and accurately reflect the
UNHCR guidelines, both of which recognize that gender is an immu-
table characteristic that satisfies the membership in a particular social
group requirement.179
     First, the regulations should drop the “visibility” requirement.
This requirement was set forth in the DHS 2009 Brief with little gui-
dance on how to apply it.180 Additionally, courts that have applied
this requirement have done so inconsistently; some apply it in its lit-
eral sense, that the individual members be identifiable as group mem-
bers to complete strangers; while others require that the group be
recognized as a group by society.181 It is also at times wrongly joined

   174. Asylum and Withholding Definitions, 65 Fed. Reg. 76588-01 (proposed Dec. 7, 2000).
   175. See How to Repair the U.S. Asylum System: Blueprint for the Next Administration,
HUMAN RIGHTS FIRST, 11 (Dec. 2008), http://www.humanrightsfirst.org/pdf/081204-ASY-asy-
lum-blueprint.pdf [hereinafter Blueprint].
   176. See A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74 (BIA 2007); S-E-G-, 24 I. & N. Dec. 579,
582 (BIA 2008) (both cases showing analysis using particular social group framework as applied
to non gender based claims).
   177. Matter of Acosta, supra note 15, at 233.
   178. Barbara R. Barreno, In Search of Guidance: An Examination of Past, Present, and Fu-
ture Adjudications of Domestic Violence Asylum Claims, 64 VAND. L. REV. 225, 256 (2011).
   179. Matter of Acosta, supra note 15, at 233; GUIDELINES, supra note 46, at 3.
   180. 2009 Brief, supra note 31, at 8.
   181. Statement for the Hearing Record on “Renewing America’s Commitment to the Refugee
Convention: The Refugee Protection Act of 2010,” CENTER FOR GENDER & REFUGEE STUDIES,
(May 19, 2010) [hereinafter Statement] available at http://cgrs.uchastings.edu/pdfs/CGRS%20
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340             SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW                             [Vol. 18

to the nexus requirement.182 The visibility requirement has served to
deny asylum to many battered women.183 Yet, one Court of Appeals
Judge described this requirement as counterintuitive and “simply
making ‘no sense’ because members of a group targeted for persecu-
tion take pains to avoid being socially visible.”184
     Second, the regulations must clearly establish that an applicant
can prove that they are persecuted on account of their membership in
a particular social group using circumstantial evidence. This is be-
cause persecutors rarely articulate why they abuse their victim, in fact,
the Supreme Court allows an applicant to demonstrate the persecu-
tor’s motive by “some evidence, direct or circumstantial.185 Moreover,
the new INS regulations proposed by President Clinton in 2000 and
the DHS Briefs also allow applicants to submit circumstantial evi-
dence.186 Yet, despite this general agreement, many asylum claims
have been denied for failing to produce direct evidence that fulfills the
nexus requirement.187 As both R.A.’s and L.R.’s cases illustrate, it is
particularly difficult for battered women to establish nexus when the
aggressor is a non-state actor. Allowing circumstantial evidence to
prove the requirement resolves a practical reality without sacrificing
the legitimacy of a claim.

      Critics argue that granting battered women asylum will open up
the floodgates, thereby overwhelming the court system. They point to
alarming statistics for battered women in countries like Ethiopia,
where it is reported “that as many as 6 of every 10 women [are]
beaten or sexually assaulted by their husbands or partners,” sug-
gesting that all of these women would flood U.S. borders.188 This
floodgate concern is meritless because international and domestic sta-
tistics say otherwise. First, countries that recognize gender-based
claims did not experience a drastic increase in applications.189 Second,

   182. Id.
   183. Id.
   184. Id. (citing cases such as homosexuals who disguise themselves as heterosexuals or wo-
men that have not yet undergone female genital mutilation).
   185. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992).
   186. Barreno, supra note 178 at 239.
   187. Statement, supra note 181.
   188. Kotlowitz, supra note 164.
   189. See generally Immigration and Refugee Board of Canada: An Overview, IMMIGRATION
AND REFUGEE BOARD OF CANADA [hereinafter An Overview], http://www.irb-cisr.gc.ca/Eng/
brdcom/publications/oveape/Documents/overview_e.pdf. (last visited Dec. 15, 2010).
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2011]                            VICTIMS OF DOMESTIC VIOLENCE                               341

there are sufficient safeguards within the United States’ asylum appli-
cation process.190 Third, by reinforcing the United States’ commit-
ment to protecting battered women, recognized as qualified refugees
by the United Nations, a clear message is sent to those countries that
have lax domestic violence laws that they need to solve their domestic
violence problems within their borders if they want to avoid receiving
negative international publicity. Thus, there is insufficient evidence to
support the conclusion that gender-based applications for asylum
would be so overwhelming that as an entire group they ought to be
denied protection.

A. Statistics Say Otherwise
     Canada, the United Kingdom, Australia, and New Zealand,
among others, recognize gender-based asylum and have not exper-
ienced an influx in applications.191 In 1993, Canada, whose asylum
process is similar to that of the United States,192 began recognizing
marital status and gender for purposes of asylum.193 In 1995, how-
ever, the total number of gender-based asylum applications was 350
out of more than 31,000 asylum applications total.194 By 1999, the total
number of gender-based asylum applications dropped to only 175.195
Clearly, gender-based claims have not led to a rush of applicants in
     Here, in the United States, the total number of asylum applica-
tions in general has consistently declined over the years. In 2003, the
DHS granted a total of 28,737 asylum applications.196 Once the 2004
Brief was issued, battered women were recognized by the DHS as
members of a particular social group and received asylum.197 Since
then, the number of applicants who receive asylum has decreased
steadily.198 The total number of applicants granted asylum in 2009

   190. 2009 Brief, supra note 31, at 12.
   191. Brief for Respondent at 11 n.12, In re R-A-, 22 I. & N. Dec. 906 (B.I.A. 2001) (No. A 73
753 922), available at http://cgrs.uchastings.edu/documents/legal/ra_brief_final.pdf.
  192. See generally Immigration and Refugee Board of Canada: An Overview, IMMIGRATION
AND REFUGEE BOARD OF CANADA (Mar. 2006), 3-28, http://www.irb-cisr.gc.ca/Eng/brdcom/
publications/oveape/Documents/overview_e.pdf [hereinafter Overview].
   193. Id. at 16.
   194. Kristin E. Kandt, Comment, United States Asylum Law: Recognizing Persecution Based
on Gender Using Canada as a Comparison, 9 GEO. IMMIGR. L.J. 137, 165 (1995).
   195. 2009 Brief, supra note 31, at 13 n.10 (these are latest published statistics).
   196. Office of Immigration Statistics, 2009 Yearbook of Immigration Statistics, U.S. DEP’T OF
HOMELAND SECURITY (Aug. 2010), 43 http://www.dhs.gov/xlibrary/assets/statistics/yearbook/
2009/ois_yb_2009.pdf [hereinafter Statistics].
   197. 2009 Brief, supra note 31, at 13 n.10.
   198. See Statistics, supra note 196, at 43 (2004 - 27,316, 2005 - 25,221, 2006 - 26,272).
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342             SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW                            [Vol. 18

was only 22,119, the lowest number since 2000.199 These numbers do
not suggest that asylum claims are flooding in; instead, they seem to
be drying up. This seems to be equally true for gender-based applica-
tions in general. One possible explanation is that most women who
would qualify for asylum do not have the resources to flee their coun-
try.200 Even if they did, they are unlikely to obtain the legal assistance
or agency support that both R.A. and L.R. enjoyed.201
     Likewise, the United States has not seen a flood of applications
ensue since it recognized other types of gender-based asylum claims,
such as female genital mutilation victims. Critics argued that there
would be a drastic increase in applications because “millions of wo-
men are subject to female genital mutilation a year.”202 Instead, evi-
dence indicates that the number of women seeking asylum for female
genital mutilation remains low.203 One possible explanation is that
countries with the highest rates of female genital mutilation are not
the same countries with the highest number of immigrants seeking
asylum.204 This is also true for domestic violence. Of the ten coun-
tries with the highest asylum applicants, only three of them are consid-
ered “one of the worst countries for women” based on statistical data
such as societal tolerance for domestic abuse.205 Looking at the num-
ber of female genital mutilation applications, it is not unreasonable to
assume that we can expect the same results if protection were granted
to victims of domestic violence.

B. The Burden Remains High
     Proponents of the floodgate argument ignore the fact that recog-
nizing gender-based claims for purposes of establishing one of the
protected groups is but a single element of an entire asylum claim.
This weakens the floodgates theory because not every person who

    199. Id. at 43.
    200. See Ashley Michelle Papon, Obama Administration Extends Asylum for Domestic Vio-
lence Victims, GLOBAL SHIFT (Aug. 16, 2010), http://www.globalshift.org/2010/08/16/obama-ad-
    201. Id.
    202. Chris McGreal, Obama Moves to Grant Political Asylum to Women Who Suffer Domes-
tic Abuse, GUARDIAN.CO.UK (July, 24, 2009, 17:17 BST), http://www.guardian.co.uk/world/2009/
    203. See Zainab Zakari, FGM Asylum Cases Forge New Legal Standing, WOMEN’S ENEWS
(Nov. 25, 2008), http://www.womensenews.org/story/genital-mutilation/081125/fgm-asylum-
    204. Id.
    205. See Olivia Ward, Ten Worst Countries for Women, thestar.com (Mar. 8, 2008), http://
www.thestar.com/News/World/article/326354 (those countries are Iraq, Nepal, and Guatemala).
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2011]                            VICTIMS OF DOMESTIC VIOLENCE                                 343

files an application will be granted asylum.206 While some facts may be
used to prove more than one element,207 like the results after IIRIRA,
formally recognizing battered women as members of a particular so-
cial group would only create a presumption for one element and
would not make it easier in general to prove all other elements.208
      In fact, meeting all the elements for an asylum claim can be par-
ticularly difficult for a victim of domestic violence. The burden has
been described as a “heavy one.”209 First, she must demonstrate that
the abuse is severe enough that it rises to a level of persecution.210
Second, the past persecution must cause her to fear harm and this fear
must be well-founded.211 Third, the applicant must provide docu-
mented evidence that relocating within her home country is not a rea-
sonable option.212 Finally, because the aggressor is not the country
itself, she must show that the country is unwilling or unable to protect
her.213 These last two elements are the toughest to meet because they
are “designed to narrow the class” to only include applicants who
come from countries where domestic abuse is woven into the coun-
try’s fabric.214 In other words, domestic violence is so pervasive be-
cause the country either has no laws in place to prevent it or if the
country does, it must refuse to enforce them.215

C. Sending a Clear Message
     Recognizing victims of domestic violence as a class eligible for
asylum promotes domestic abuse awareness both internationally and
domestically. There are critics who believe that granting asylum to
domestic abuse victims reduces the pressure on countries with lax do-
mestic violence laws because they know that victims within their bor-

   206. 2009 Brief, supra note 31, at 12.
   207. Id. at 21.
   208. See Rabkin, supra note 161, at 975 (as one member of Congress put it during the de-
bates for passage of IIRIRA, “[t]he solution to credibility problems is careful case-by-case adju-
dication, not wholesale denial.”).
   209. 2009 Brief, supra note 31, at 12 (quoting Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996)
(en banc)).
   210. Id.
   211. Id.
   212. Id.
   213. Id. at 12-13. (DHS also points out that many of these women would not have the availa-
ble resources to leave in the first place).
   214. See David Ma, The Obama Administration’s Policy Change Grants Asylum to Battered
Women: Female Genital Mutilation Opens the Door for All Victims of Domestic Violence, SE-
LECTED WORKS, http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=david_ma
(last visited Sept. 1, 2011).
   215. See id.
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344             SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW                                [Vol. 18

ders can receive protection elsewhere, thereby creating little incentive
for those countries to address and rectify the condition at home.216 A
similar theory suggests that this allows the battered victim to flee from
the problem. These critics argue that it provides no incentives to seek
reform in her home country.217 Both of these arguments are flawed.
It is doubtful that any country wants the kind of negative publicity
that would follow if women were fleeing the country to seek asylum in
the United States. Such publicity, however, may actually help force
those countries towards reform. In fact, since R.A.’s case made head-
lines, “Guatemala is making efforts to reduce spousal abuse through
‘nationwide educational programs.’”218 The country has also passed a
law that judges “may issue injunctions against abusive spouses, which
police are responsible with enforcing.”219 Additionally, it is simply
unrealistic to expect a woman who is unable to receive assistance from
the government with her own matter, to expect an entire group of
similarly situated women in her same country to receive help.
     Further, recognizing that women deserve refugee protection from
domestic abuse reinforces the United States’ commitment to curing
human rights violations. Critics argue that granting battered women
asylum will undermine efforts against domestic violence here in the
United States.220 The reality is that the United States is in a much
better position to provide these women assistance compared to other
countries. An argument premised on the idea that the United States
should not offer protection to foreign victim of domestic abuse be-
cause they are too numerous is simply callous and demonstrates “an
appalling indifference to human suffering.”221 The United State’s fail-
ure to take adequate steps to protect these women could be inter-

   216. Cf. Daniel F. E. Smith, Refusing to Expand Asylum Law: An Appropriate Response by
the Fourth Circuit in Niang v. Gonzales, 87 N.C. L. REV. 1279, 1297 (2009) (similar argument
made but in the context of female genital mutilation).
   217. See id.
   218. Jon Feere, Open Border Asylum: Newfound Category of ‘Spousal Abuse Asylum’ Raises
More Questions Than It Answers, CENTER FOR IMMIGRATION STUDIES, 12-13 (July 2010), http://
www.cis.org/articles/2010/alvarado.pdf (U.S. State Department’s advisory opinion on R.A.’s
   219. Id. at 13.
   220. Obama Administration Ignores Law, Advocates Asylum for Victims of Foreign Domestic
Violence, FEDERATION FOR AMERICAN IMMIGRATION REFORM (July 20, 2009), available at http:/
_ctrl=1012. (It is unfair to the American people to ask them to embrace a policy that attempts to
right every wrong and rectify every misfortune, wherever it occurs, no matter who is responsible
by bringing the victims into the United States for permanent residence and giving them instant
access to welfare programs, housing assistance, and other taxpayer-supported public assistance
programs that are available only to the neediest Americans.).
   221. Papon, supra note 200.
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2011]                            VICTIMS OF DOMESTIC VIOLENCE                         345

preted as supporting the practices of these countries, or at the least, as
passive in the fight against domestic abuse. Surely this is not the mes-
sage the Obama Administration wants to send to women in the
United States. As the foregoing responses indicate, the fears held by
the floodgates critics are clearly unfounded. Recognizing battered
women under asylum law will not only protect the dignity of women
suffering from domestic abuse, but may also help to spur their home
countries to action so that future women will not have to flee their
home countries leaving everything behind in order to escape the

     Post World War II, the United States was the leading supporter in
“the efforts to create an international refugee protection regime.”222
Through the Refugee Act, it “has welcomed the refugees from some
of the world’s most desperate refugee [crises].”223 Today the United
States still prides itself “as a beacon of hope and safety for the perse-
cuted around the world.”224 However, for individuals who flee perse-
cution based on gender, this is not the case. For almost twenty-one
years now, the United States has consistently denied foreign victims of
domestic abuse shelter within its borders. It has continued to ignore
international urging and its commitment to the Convention.
     Some administrations, such as Clinton’s Administration, have
made noble attempts to rectify the problem. Those attempts unfortu-
nately fell short of creating any long-lasting rules. This left the process
open to attack by other administrations, like the Bush Administration,
that threatened to undo all progress made up until that point. Now
we have a new administration that talks about once again making pos-
itive changes for battered women who seek asylum in the United
States. But unless these changes are formally implemented through
legislation or agency regulations, this administration’s efforts are
doomed to suffer the same fate as the proposed regulations of 2000.
As the law stands today, battered women who seek asylum will con-
tinue to face an uncertain future.
     This Administration should feel confident that there would not
be a flood of new asylum applications. The United States has two

   222. Renewing U.S. Commitment to Refugee Protection: Recommendations for Reform on the
30th Anniversary of the Refugee Act, HUMAN RIGHTS FIRST, 6 (Mar. 2010), http://www.human
   223. Id. at 7.
   224. See Blueprint, supra note 175, at 1 (statement of President-Elect Barack Obama).
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346             SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW                [Vol. 18

other events in its recent history that suggest this: China’s “One Child
Policy” and female genital mutilation. Further, as the UNHCR points
out, “the fact that large numbers of persons risk persecution cannot be
a ground for refusing to extend international protection where it is
otherwise appropriate.”225 By formally recognizing that battered wo-
men do qualify for asylum, this government would put an end to the
inefficiency that has plagued asylum law for several years. Most im-
portantly, it reinforces the message that the United States does not
condone this type of behavior, either abroad or within its borders.

   225. GUIDELINES, supra note 46, at 2.

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