After the former U.S. Attorney General (“A.G.”) Jeff Sessions issued Matter of A-B- in 2018, many immigration advocates were skeptical of the viability of domestic violence-based asylum claims. Matter of A-B- contained dicta that many immigration advocates worried would be interpreted as a categorical ban on domestic violence-based asylum claims. However, since 2018, several circuits have rejected this reading of Matter of A-B-. Most recently, the Ninth Circuit joined the First and Sixth Circuits in ruling that Matter of A-B- heightens the burden of proof required for domestic violence victims to claim asylum, but that domestic violence-based claims for asylum are still legally cognizable.

To claim asylum in the United States, an asylum applicant must meet the statutory definition of a refugee under the Immigration and Nationality Act, which in part requires that a person has been persecuted or fears they will be persecuted in their country of origin on account of race, religion, nationality, political opinion, or membership in a particular social group (“PSG”). As the protected PSGs are not defined by statute, the Board of Immigration Appeals (“BIA”) has developed and narrowed specific requirements to establish membership in a PSG over the past few decades. Since the BIA’s holding in Matter of A-R-C-G-, announcing that “married women in Guatemala who are unable to leave their relationship” are a legally cognizable PSG, other domestic violence victims from certain countries could also qualify as legally cognizable PSGs. However, in Matter of A-B-, the A.G. Jeff Sessions overruled Matter of A-R-C-G-, explaining that the “decision was wrongly decided and should not have been issued as a precedential decision.” The A.G. reasoned that the mere fact that a country “may have problems effectively policing certain crimes,” like domestic violence, “or that certain populations are more likely to be victims of crime cannot itself establish an asylum claim.” Rather, the A.G. ruled that “to be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.”

Continue Reading Post-Matter of A-B-, The Ninth Circuit Joins the First and Sixth Circuits in Finding Domestic Violence-Based Asylum Claims Are Still Viable