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December 7, 2000
The R-A- Rule
Q: What does the proposed rule do?
A: The rule proposes an analytical framework within which gender-related
and other new kinds of claims should be considered. It states generally
applicable principles to provide additional guidance on the definitions of
"persecution" and "membership in a particular social group," as well as guidance
on what it means for persecution to be "on account of" a protected
characteristic. The rule was developed with an awareness of the circumstances
surrounding persecution against women and recognizes that domestic violence is
not only a private matter and may, under certain circumstances, qualify the
victim for a grant of asylum.
Q: Why are the Attorney General and the INS Commissioner proposing
this rule?
A: There is a sizeable body of case law that interprets the meaning of
the refugee definition; however, most of it addresses asylum and withholding
claims based on race, religion, and political opinion. Claims based on
membership in a particular social group - such as those grounded on the
applicant's gender or sexual orientation - are being made more often now than in
previous decades. The Department of Justice (DOJ) believes that guidance is
necessary to promote uniform interpretation of the relevant statutory
provisions.
Q: Was the proposed rule developed because of Matter of R-A-?
A: In part. Asylum applications based on membership in a particular
social group, such as cases involving domestic violence, often pose complex
analytical questions about the interpretation of asylum laws. The Board of
Immigration Appeals (BIA) considered and rejected a domestic violence
persecution claim in its decision in Matter of R-A-. The proposed
rule specifically addresses certain aspects of the Matter of R-A-
decision that might be read to be inconsistent with principles of asylum law,
and that could impose unwarranted barriers to claims based on domestic
violence.
Q: Does the proposed rule carve out a special eligibility category for
gender-related and domestic violence claims?
A: No. The rule does not carve out any special categories. It articulates
broadly applicable principles to guide adjudicators in applying the refugee
definition and other statutory and regulatory provisions. Though applicable to
all asylum and withholding cases, these principles take into account our
understanding of the circumstances surrounding persecution against women and
clarify interpretive issues that could impose barriers to gender-related and
domestic violence claims. The supplemental information to the rule gives
examples of how the general interpretive principles may be applied to
gender-related asylum cases, such as those involving domestic violence.
Q: Does the proposed rule constitute a shift in DOJ's approach to
gender-related and domestic violence claims?
A: While the proposed rule is consistent with DOJ's interpretation of the
refugee definition, it does propose a shift in the way that DOJ has decided to
address this area of law. DOJ has always been committed to the fair adjudication
of asylum cases. As this area of law has developed, DOJ's interpretation of the
refugee definition has developed accordingly. Consistent with the Attorney
General's statutory authority in immigration law, the Attorney General has
decided to promulgate regulations to ensure that the law in this area develops
in a fair and consistent way. These regulations reflect both sound principles of
asylum law and the general nature of domestic violence.
Q: Does the proposed rule modify the position DOJ took in Matter of
R-A-, Interim Decision 3403 (BIA 1999)?
A: Yes. On June 11, 1999 the BIA published a decision denying asylum to a
Guatemalan woman who had been the victim of severe domestic violence and who
feared that she would be at risk of continuing violence if she were returned to
Guatemala. The applicant appealed the BIA's decision to the Ninth Circuit Court
of Appeals. The case has been stayed in the Ninth Circuit to allow for review by
the Attorney General, as is allowed under the immigration statutes. This rule
clarifies the BIA's particular social group analysis and modifies the BIA's
statement of the principles governing the requirement that persecution be "on
account of" a statutory ground.
Q: How does the proposed rule modify Matter of R-A-'s "on
account of" and "social group analysis"?
A: In Matter of R-A-, the applicant argued that she was persecuted
on account of membership in a social group comprised of Guatemalan women
intimately involved with abusive Guatemalan men. INS argued, and the BIA agreed,
that the harm asserted by the applicant was not on account of membership in a
particular social group because there was no indication that the applicant's
husband would harm any other members of the group. DOJ has reconsidered this
position. The proposed rule states that, although evidence that the persecutor
seeks to act against other individuals who share the applicant's protected
characteristic is relevant and may be considered, this is not a required
element. The rule and supplemental information to the rule restates that gender
can be the basis for membership in a particular social group and indicate that
in certain circumstances victims of domestic violence may be eligible for
asylum. Consistent with U.S. domestic law, the rule recognizes that domestic
violence is not a private matter and may, under certain circumstances, qualify
the victim for a grant of asylum. Asylum law in the United Kingdom, Australia,
New Zealand, and Canada all recognize that domestic violence can, in certain
circumstances, form the basis for asylum.
Q: Isn't it true that INS argued to BIA that the social group asserted by the
applicant in R-A- was not a social group?
A: Yes. However, Matter of R-A- raised complex issues that INS
believed were in need of further consideration. Following BIA's decision in
Matter of R-A-, INS made a proposal to the Attorney General asking her to
review DOJ's position. The proposed rule is the culmination of extensive INS
analysis
Q: Does the proposed rule modify how BIA characterized domestic violence in
Matter of R-A-?
A: Yes. The BIA characterized domestic violence by considering it a
private, family matter. DOJ believes certain forms of domestic violence may
constitute persecution, despite the fact that they occur within familial or
intimate relationships. Domestic violence centers on power and control over the
victim. The proposed rule recognizes that such patterns of violence are not
private matters, but rather should be addressed when they are supported by a
legal system or social norms that condone or perpetuate domestic
violence.
Q: Did INS consult domestic violence experts when it was drafting the
proposed rule?
A: Yes. INS consulted the Violence Against Women Office (VAWO) of
Department of Justice, which has experience in the U.S., as well as with foreign
governments and non-governmental organizations which have had experience with
these types of claims. VAWO has concluded that domestic violence manifests
similar characteristics across all racial, ethnic and socioeconomic groups.
First, in relationships involving domestic violence, past behavior is a strong
predictor of future behavior by the abuser. Victims report patterns of
abuse–rather than single, isolated incidents–that tend to include the repeated
use of physical, sexual and emotional abuse, threats, intimidation, isolation
and economic coercion. Second, both here and abroad, domestic violence centers
on power and control over the victim. Consequently, when victims attempt to flee
the abusive relationship, or otherwise assert their independence, abusers often
pursue them and escalate the violence to regain or reassert control. The risk of
lethality to the victim is typically greatest when the victim attempts to escape
the abuse and, in contrast to other persecution cases where the persecutor’s
desire to harm the victim may wane if the victim leaves, the victim’s attempt to
leave typically increases the abuser’s motivation to locate and harm her. Third,
because of the abuser’s intimate or familial relationship with the victim, the
abuser is likely to possess important information about where the victim could
go or to whom the victim would turn for assistance.
Q: How many asylum applications does INS receive each year?
A: In fiscal year 1999, INS received 42,207 applications for asylum. In
addition, immigration courts received approximately 12,000 (defensive) asylum
applications from aliens in removal proceedings. Only 1,085 of the claims
received by INS were filed by women seeking asylum based in whole or in part on
membership in a particular social group. Neither the INS nor the immigration
courts can provide statistical data on asylum claims based on grounds related to
domestic violence.
Q: Does INS expect to receive a flood of asylum applications based on
domestic violence?
A: No. INS does not anticipate a large number of claims based on domestic
violence. Although there is no way to predict precise numbers, INS believes that
the situation will be analogous to that of claims based on female genital
mutilation (FGM). In the 1996 precedent decision Matter of Kasinga, the
BIA recognized FGM as a basis for asylum. Although genital mutilation is
practiced on many women around the world, INS has not seen an appreciable
increase in the number of claims based on FGM. Furthermore, INS believes that
the Canadian experience with gender-related asylum claims is instructive. In
1995, Canada issued gender guidelines recognizing domestic violence as a basis
for asylum. Rather than receiving a flood of applications, the Immigration and
Refugee Board of Canada reports that gender-related claims have actually dropped
steadily since a peak of 315 claims in 1995.
Q: Under the proposed regulations, will all victims of domestic
violence be eligible for asylum?
A: No. Under U.S. law, a person can be granted asylum only if he or she
establishes a well-founded fear of persecution on account of one of the five
grounds authorized by the statute. DOJ recognizes that under certain
circumstances domestic violence may fall within the refugee definition provided
in the statutes. Asylum adjudications are highly fact specific and it is not
necessary or practicable to establish a sixth enumerated ground in the refugee
definition based on domestic violence.
Q: How does this proposed rule affect the disposition of Matter of
R-A?
A: It would not be appropriate to comment while the case is under review
by DOJ.
Q: What is the effect of the proposed rule on currently pending
cases?
A: The proposed rule does not have any binding effect and a final rule
will not be promulgated until the public has had the opportunity to comment and
DOJ reviews and considers the comments. The proposed rule and supplemental
information do, however, represent the analytical framework that DOJ believes is
appropriate for gender-related and domestic violence-based cases.
Q: Who may comment on this proposed rule?
A: Any member of the public may submit written comments on this proposed
rule. The proposed rule will have a 45-day notice and comment period to allow
members of the public, advocacy groups, and others to comment on the approach
DOJ has taken, and the specific interpretations of the refugee definition as
stated in the rule. DOJ welcomes comment on all aspects of the proposed
regulation and will review and consider all comments prior to publishing a final
rule. | 
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