Shortly after the attorney general announced he was reviewing a case (Matter of A-B-) involving grants of asylum for victims of domestic abuse, the Center published a blog post in which I expressed my view that asylum was an inappropriate form of relief.
Not long after that, my colleague Jessica Vaughan was contacted by a reporter seeking to speak with me to discuss my post in the context of the amicus briefs filed with the attorney general. Although he didn't specifically say so, I'm sure the reporter was trying to figure out whether I understood that the argument, at least by proponents of granting asylum, wasn't about domestic violence per se, but about whether gender — specifically, women who suffered domestic abuse — fit within the definition of "membership in a particular social group".
I do understand, but believe that's a logical cul-de-sac and think it's worth explaining why. For that reason, I'm reproducing my response to the journalist here:
Hi, Mr. [redacted],
Jessica let me know that you were interested in speaking to me about my blog relating to the attorney general's certification to himself of the noted case, in order to review the standard relating to domestic violence victims as putative members of a particular social group.
I gather you wanted also to speak to the amicus briefs filed in the matter. I can't say that I've read them all, but I have read some, and they seem to have a common thread running through, which is that gender is the particular social class that should be the standard used when considering domestic violence. I've been thinking about that, and at least in my view it fails. Here's why:
Assume, arguendo, that women who are victims of domestic violence are indeed members of a particular social group because of their gender, and therefore they receive asylum. Does that mean, then, that men who are victims of domestic abuse should not get asylum? I realize that statistically, violence against men is less common, but it isn't unknown by any means, either in the United States or abroad. See here, for instance. I strongly doubt that the law clinics and others who have filed amicus briefs would — or could — take such a position, having staked out gender as an appropriate consideration, lest they risk being accused of gender bias. It would be irrational to argue otherwise, from their point of view.
But if both women as a group and men as a group were to be entitled to asylum on the basis of domestic violence, then haven't we come full circle and shown that the argument isn't in fact about gender, but about whether victims of a particular kind of crime should be recognized as members of a particular social group? As I said in the blog, I think that goes well beyond the reasonable parameters of why refuge and asylum were created as both international and domestic mechanisms for extraordinary relief, and it seems to me that gender is being used to shoe-horn in a situation that otherwise would not likely merit consideration, however it tugs at our heartstrings.
It seems to me that, as much as our humanity and sympathies want us to find reasons to grant asylum or refuge, there must be legal and logical limits to this kind of relief, else it becomes an ever-expanding pool.
The root of the problem is, of course, that "membership in a particular social group" was never defined in the law. That doesn't mean, though, that it should become so elastic as to include anyone. If it does (as in the situation I've described where first one gender and then the other end up being considered as "social groups") then it includes everyone, and if that's true it ceases to have any meaning whatever as a delimiter on those who should be granted refugee or asylee status. I think it was that underlying concern over the expanding elasticity of definition that led the attorney general to certify the case to himself.
I hope that this helps address some of your questions.