The Ejusdem Generis of A-B-: Ongoing Asylum Advocacy for Domestic Violence Survivors

Linda Kelly

Linda Kelly is the M. Dale Palmer Professor of Law at the Indiana University Robert H. McKinney School of Law, where she is also Director of the Law & Immigration Clinic.

 

On June 11, 2018, Attorney General Sessions published his opinion in Matter of A-B- 1 and overruled Matter of A-R-C-G-.2 In so doing, Sessions single­handedly dismantled an accord between domestic violence survivors, their advocates, and the U.S. government, which was reached less than four years prior and had ended a fifteen-year struggle. Decided in 2014 by the Board of Immigration Appeals (BIA), A-R-C-G- was the only decision with national precedential value that provided asylum to domestic violence survivors. It was the culmination of a complicated history, winding through three Presidential administrations and numerous negotiations in the wake of the negative Matter of R-A- opinion, which was published and then vacated upon the (ultimately unrealized) hopes that certain regulations would be published.3

Sessions’ overruling of A-R-C-G- unleashed a firestorm. Fourteen former Immigration Judges immediately released a joint statement criticizing his A-B- decision as one made upon “reasons understood only by himself” and calling upon the courts or Congress to “reverse this unilateral action and return the rule of law to asylum adjudications.”4 Various immigration courts across the country began issuing detailed briefing instructions in cases affected by A-B-.5 Numerous articles and op-eds expressing disapproval were also published.6 On July 11, 2018, USCIS issued a detailed memorandum providing instruc­tion on Matter of A-B- to all relevant USCIS officials adjudicating reasonable fear, credible fear, asylum, and refugee claims.7 On July 25, 2018, the U.S. House Committee on Appropriations passed an amendment to block any DHS funding to implement Matter of A-B-.8 On August 7, 2018, a federal lawsuit was filed requesting an injunction to block the implementation of Matter of A-B- in expedited removal proceedings.9

As the legal and political controversy rages on, domestic violence survivors continue to reach the U.S. borders and appear before U.S. asylum officers and immigration judges seeking asylum. A-B- has already significantly reduced the number of positive decisions for domestic violence survivors in credible fear interviews along the U.S. border10 as well as immigration courts.11 Asylum seekers cannot wait for the next possible chapter of legal pronouncements. This article intends to serve as an immediate tool for domestic violence asy­lum seekers and their advocates who now must respond to Matter of A-B-.

While A-B- systematically discredits A-R-C-G-’s interpretation of the asy­lum criteria for domestic violence survivors, it does not definitively disqualify domestic violence asylum claims. Instead, A-B- demands more “rigor” in the presentation and adjudication of asylum claims.12 A-B- reevaluates each of asylum’s critical criteria: 1) defining membership in a particular social group; 2) evidencing persecution; 3) showing a foreign government’s unwillingness or inability to prevent such persecution; 4) establishing the nexus between such persecution and membership; and 5) proving the non-viability of internal location. Fortunately, as A-B- acknowledges, this demand for greater rigor in asylum evaluation can be met by returning to the main source of asylum: In re Acosta.13 By following Acosta’s roadmap, domestic violence survivors can meet the expectations set forth by A-B-.

1. Membership In A Particular Social Group

For domestic violence survivors, the most fundamental challenge is fitting the domestic violence claim into one of asylum’s limited statutory grounds. Asylum can be granted based on one of the following five factors: “race, religion, nationality, membership in a particular social group or political opinion.”14 The struggle to define “membership in a particular social group” originates with Acosta.15 Relying on the principle of ejusdem generis, Acosta says “membership in a particular social group” must be defined consistently with the other four grounds. Such consistency leads to membership in a par­ticular social group necessitating a “common, immutable characteristic . . . that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to change.”16

More recently, the “common, immutable characteristic” demand of the par­ticular social group standard was compounded by the BIA’s near conflicting demands of “particularity” and “social distinction.” “Particularity” signifies that a particular social group’s terms are exacting enough to avoid a group being “amorphous,” “subjective,” “inchoate,” or “indeterminate.”17 In contrast to the narrowing of “particularity,” “social distinction” considers whether the society in question “perceives, considers, or recognizes persons sharing the particular characteristic to be a group.”18 Combined, the twin requirements of “particularity” and “social distinction” force asylum seekers to walk a tightrope. “A particular social group must avoid, consistent with evidence, being too broad to have definable boundaries and too narrow to have larger significance in society.”19 Finally, to avoid circularity, whatever the charac­teristics defining the group, they cannot be rooted in the harm asserted.20 “If a group is defined by the persecution of its members, then the definition of the group moots the need to establish actual persecution.”21

Against this framework, A-B- shatters A-R-C-G’s particular social group of “married women in Guatemala who are unable to leave their relation­ship.” Chastising the BIA for its “cursory” analysis and acceptance of DHS’ concession that such a group satisfied the “particular social group” standard, A-B- critically examines and rejects A-R-C-G-’s proposed, and comparable, groups.22 A-B- concludes that being “unable to leave their relationship” is tantamount to basing the group in the violence because the “inability ‘to leave’ was created by the harm or threatened harm.”23 The terms “married,” “women,” and “unable to leave the relationship” were held to be insufficient to demonstrate social distinction—although arguably creating a group narrow enough to satisfy particularity. Sessions also criticized the A-R-C-G- Board for accepting DHS’ concession that the proposed group was “cognizable” and noted that DHS provided “no explanation” of support for that concession.24 The BIA’s recognition of Guatemala’s “culture of machismo and family vio­lence” and lack of enforcement of domestic violence laws was not enough for Sessions.25 Instead, he required that the evidence must establish that the class be “recognizable by society at large.”26 According to A-B-, “there is significant room for doubt that Guatemalan society views these women, as horrible as their personal circumstances may be, as members of a distinct group in society, rather than each as a victim of a particular abuser in highly individualized circumstances.”27

Practice Tip:

In the face of such challenges, how should a particular social group for domestic violence survivors be defined? Initially, relevant circuit precedent must be reviewed. A-B- is a controlling federal administrative precedent, which federal circuits must follow absent contrary circuit precedent.28 Importantly, a few circuits have rejected the social distinction criterion, preferring to rely solely on the “common immutable” characteristic and “particularity” aspects of the “particular social group” requirement.29 Nevertheless, assuming all three elements must be met, how can the membership in a particular social group be maintained in a post A-B- world?

• a. Recasting the term “Unable to Leave the Relationship”

Sessions’ characterization of the “unable to leave the relationship” element as a proxy for defining the group through the violence is A-B-’s greatest chal­lenge and greatest folly for asylum applicants. Unlike Sessions, the A-R-C-G- Board clearly stated that “married women in Guatemala unable to leave their relationships” avoided the circularity trapping, since domestic violence did not define the group.30 Presenting evidence in asylum cases that explains this disconnect is now critical. Reliance on basic domestic violence theory is one way to strongly refute A-B-’s naïve understanding of domestic violence.

When Lenore Walker, a pioneer in the domestic violence movement, in­troduced the “cycle of violence” concept in 1979, she defined “the battered woman” as one subject to an ongoing pattern of tension building, acute battering, and batterer contrition.31 While such work was critical to early explorations of domestic violence, its overemphasis on physical violence gave way to a more nuanced understanding of the many reasons that women stay in an abusive relationship.32

Walker’s “cycle of violence” was eventually replaced with the “power and control wheel,” which depicts domestic violence as a central hub of “power and control, attached to spokes illustrating the array of forces compelling a woman to stay.”33 It illustrates that a woman’s inability to leave a relationship is not strictly due to her fear of violence. Love,34 shame,35 children,36 culture,37 religious vows, and scarcity of resources38 are among the many legitimate, non-violence based explanations for a woman’s decision to stay in such a relationship. Evidence of this nature can be submitted through an asylum applicant’s testimony as well as the submission of numerous documented sources within domestic violence literature.39 By providing these kinds of non-violence related explanations, a domestic violence survivor can prove that her “inability to leave the relationship” is not rooted in violence. In so doing, she can avoid the circularity trap set up by A-B-.

• b. Eschewing the “Unable to Leave Relationship” Term

Beyond recharacterizing the “unable to leave” term, domestic violence survivors can advance other particular social groups theories.40 For example, based on the facts of A-R-C-G-, another possible social group may simply be: “Married Guatemalan Women.”41 This proposed group avoids the “circular definition in violence” criticism.42 However, it is also clearly at risk of being considered insufficiently “particular.” Defenses against this latter criticism may include the courts’ repeated recognition that group size does not matter.43 And, backed by ejusdem generis, an asylum applicant can cite the numerous large, non-domestic violence groups routinely recognized by courts.44 In this regard, the applicant might also quote Sessions’ own words in A-B-: “Although the category of protected persons [within a particular group] may be large, the number of those who can demonstrate the required nexus likely is not.”45

• c. Proposing Alternative “On Account of” Grounds

Finally, domestic violence asylum seekers and their advocates must ex­plore and propose all other viable “on account of” categories. Does the ap­plicant’s violence and fear have any roots in religion, political opinion, race, or nationality?46 A n a sylum a pplicant n eed o nly s how t hat t he h arm w as motivated “in part” by one of these recognized statutory bases for asylum.47 Fiadjoe v. Attorney General exemplifies this tactic.48 In Fiadjoe, a Ghanaian woman was awarded asylum after being sexually abused and subjected to servitude by her father from the age of seven, a priest of the Trokosi sect.49 Notably, the asylum award was not framed “on account of membership in a particular social group,” such as family or domestic violence. Instead, the Third Circuit relied “on account of religion”50 because the Trokosi religious practice of making women and children sacrificial slaves was well documented by the U.S. State Department.51

2. Persecution

A-B- also reinforces domestic violence asylum applicants’ need to demon­strate the three basic prongs of persecution. While statutorily either “past” or a “well-founded fear” (i.e., future) persecution suffices, Acosta and later deci­sions interpret the term “persecution” to include a showing that the harm is (1) “severe,”52 (2) inflicted in order to “overcome a characteristic of the victim,”53 and (3) inflicted by “either by the government of a country or by persons or an organization that the government was unable or unwilling to control.” 54

• a. Severity

Typically, a domestic violence survivor’s testimony and corroborating evi­dence (such as hospital records, police reports, and third party affidavits)55 will leave little doubt that the abuse suffered is “repugnant”56 enough to meet the “severity” standard.

However, in the wake of A-B-, the “persecution” challenge for domestic violence survivors is demonstrating the nexus between such abuse and the protected characteristic in addition to proving the foreign government’s in­ability or unwillingness to control against such acts.

• b. Intent to Overcome

Despite R-A- having been vacated nearly 20 years ago, Sessions’ A-B- opin­ion relies heavily upon R-A-’s explanation that a domestic violence survivor is targeted by her husband “because she was his wife, not because she was a member of some broader collection of women, however defined, whom he believed warranted the infliction of harm.”57 Such an ignorant remark cre­ates a non-existent difference. Of course, an abuser targets his wife because she is his wife. However, it is only when she assumes that marital status that she becomes a member of a class vulnerable to persecution because both her husband and her country’s government condone the subjugation of married women. The proposed, albeit never finalized, regulations causing the vacatur of R-A- recognized this nexus: “[I]n the domestic violence context, an adjudicator should consider any evidence that the abuser uses violence to enforce power and control over the applicant because of the social status that a woman may acquire when she enters into a domestic relationship.”58

Practice Tip:

Certainly, neither the vacated R-A- nor the never finalized regulations provide authoritative guidance. Yet the recognition of a nexus between abuse and marital status within the proposed regulations at least provides a strong counter to A-B-’s reliance on R-A- and its failure to see an abusive partner’s “intent to overcome” his victim. The proposed regulations also draw a useful analogy between slaves persecuted “because of race” and domestic violence victims “because of membership in a particular social group.”

For example, in a society in which members of one race hold members of another race in slavery, that society may expect that a slave owner who beats his own slave would not beat the slave of his neighbor. It would nevertheless be reasonable to conclude that the beating is centrally motivated by the victim’s race. Similarly, in some cases involving domestic violence, an applicant may be able to establish that the abuser is motivated to harm her because of her gender or because of her status in a domestic relationship. This may be a characteristic that she shares with other women in her society, some of whom are also at risk of harm from their partners because of this shared characteristic. Thus, it may be possible in some cases for a victim of domestic violence to satisfy the “on account of” requirement, even though social limitations and other factors result in the abuser having the opportunity, and indeed the motivation, to harm only one of the women who share this characteristic, because only one of these women is in a domestic relationship with the abuser.59

In short, once a slave, or a wife, assumes such status, the persecutor readily relegates that individual into a group which may be subject to harm—even if he is only limited to harming that one individual. Relying on this concededly harsh analogy may help adjudicators recognize a similar nexus for domestic violence survivors.

3. Government “Unable or Unwilling” to Control the Persecution

The government’s inability or unwillingness to control the private actor is the third prong of persecution discussed by A-B-. Keeping with precedent, A-B- instructs that when the conduct is by a private actor the asylum applicant must show “more than” that the government has “difficulty . . . controlling the private behavior.”60 Rather, the applicant must show that “the government condoned” the private actions “or at least demonstrated a complete helpless­ness to protect the victims.”61

Practice Tip:

Because the standard of “unable or unwilling”—otherwise stated as “com­plete helplessness or condoning”—was remanded without being addressed by the BIA in A-B-, the Attorney General’s opinion also cannot make a defini­tive ruling.62 This indecision creates significant opportunities for domestic violence survivors and their advocates. Certainly, the requirement demands more than inaction by the local police.63 “Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or un­able to prevent it.”64 Again, an applicant’s testimony, expert affidavits, other third-party affidavits and country condition documentation proves critical. How many times did the applicant seek help? What police response, if any, occurred? If the police did not investigate the abuse, was the applicant given a reason? Whether or not the applicant sought police assistance, can govern­ment condonation or ineptitude be otherwise documented? What do country reports say about the existence of domestic violence laws and the national and/ or local government’s sincerity in prosecuting domestic violence offenders? These considerations serve as a starting point for satisfying this third factor.

4. “On Account Of” Membership in a Particular Social Group

The “on account of” nexus in A-B- also charges the A-R-C-G- Board with not undertaking its own analysis and for simply accepting DHS’s concession that the persecution A-R-C-G- suffered “was, for at least one central reason, on account of her membership in a particular social group.”65 According to Sessions, the A-R-C-G- Board “cited no evidence that her ex-husband attacked her because he was aware of, and hostile to, ‘married women in Guatemala who are unable to leave their relationship.’ Rather, he attacked her because of his preexisting relationship with the victim.”66 A-B- squarely burdens do­mestic violence survivors—like other asylum seekers—to prove the nexus.

This nexus challenge is rooted in Supreme Court precedent. Although not explicit in the refugee definition, the ordinary meaning of the “on account of” nexus is that persecution is on account of the victim’s “race, religion, nationality, membership in a particular social group or political opinion.”67 The U.S. Supreme Court established the victim-focused standard when Elias-Zacarias fled Guatemala in fear of recruitment by the guerrillas.68 Elias- Zacarias’ request for asylum was rejected.69 No matter how credible, his fear was not of persecution on account of his political opinion. No evidence of Elias-Zacarias’ support for the Guatemalan government or political opposi­tion to the guerrilla existed. His resistance to guerrilla recruitment was, at best, for reasons of self-preservation.70 As the Supreme Court reasoned, the guerrillas’ motivation for recruiting Elias-Zacarias was due to an interest in filling their ranks, not a belief that Elias-Zacarias should be targeted for holding a contrary political opinion. The guerrillas’ own political ambitions, independent of Elias-Zacarias, were also “irrelevant.”71

In many asylum cases, establishing the persecutor’s motive can be compli­cated—both as a legal and factual matter. Yet the obvious example of direct retaliation in which the victim expresses a political opinion contrary to that of the persecutor is only one model. When the victim does not personally manifest one of the five factors, persecution may still occur “on account of” a protected ground. The persecutor may “impute” a protected ground (such as political opinion or religious belief) to the victim.72 The persecutor may also have “mixed motives” for engaging in persecution.73 Only one motivation needs to be tied to a protected ground.74 However, whatever the “on account of” theory, the victim has the burden of proof. Either by direct or circumstantial evidence, the applicant must establish the persecutor’s motive.75

Against this backdrop, reconsider the challenge for domestic and other per­sonal violence survivors. Oftentimes, it is clear words or direct actions that are key to establishing the “on account of” nexus.” Critically, when asylum was granted to a rape victim in In re D-V- she was able to testify that the soldiers verbally identified her as a “fanatic for Aristide” while they were raping her and that they wore scarves like those of the Ton Ton Macoutes, “which had signified blood and had meant that people and places would be ravaged.”76

By contrast, no “on account of” nexus was found in the case of Castillo- Hernandez.77 Castillo-Hernandez, an indigenous Guatemalan woman targeted and raped by uniformed individuals, claimed persecution because of her Mayan ethnicity or imputed political opinion of neutrality in post-civil war Guatemala.78 Amnesty International reports were introduced to establish that the sexual crimes and killings of Guatemalan women were linked to gender. Yet, in denying Castillo-Hernandez’s claim, the Eleventh Circuit stated, “[The] roving gang of ex-guerillas . . . made no comments indicating they were at­tacking her and her mother because they were Mayan and spoke Canjobal or because they thought the women had remained neutral during Guatemala’s civil war almost ten years earlier. The attackers’ actions were consistent with private acts of violence and not persecution based on a protected factor.”79

Predictably, in many cases of domestic violence tangible demonstrable evidence is lacking. The standard is misguided if not offensive. How often will an individual raping his intimate partner articulate his motivations? And more importantly, why should a survivor have to depend upon the willing­ness of a perpetrator to explain himself? The “one central reason” standard seems to empower the perpetrator and leave the victim without a legal haven.

Fortunately, while a persecutor’s words and direct actions are invaluable, asylum’s overarching “reasonable person” standard (embodied in well-founded fear) does not require an applicant to establish conclusively why persecution happened.80 “Rather, an asylum applicant ‘bear[s] the burden of establish­ing facts on which a reasonable person would fear that the danger arises on account of his race, religion, nationality, membership in a particular social group, or political opinion.”81

Practice Tip:

Certainly, any statements by the persecutor regarding his dominant, pa­triarchal position in relation to his intimate partner and women in similar relationships are key. Expert and other third-party affidavits as well as country condition documentation regarding the role of women in such relationships are also invaluable. However, domestic violence survivors and their advocates must also emphasize the reasonable person standard and the need for ejusdem generis review.

In other “on account of” determinations, courts often conclude there is no other “reasonable explanation” for the persecution other than the asserted nexus.82 By analogy, a perpetrator of domestic violence may have a “preexist­ing personal relationship” with his parents, his siblings, and friends. Yet these individuals are not subject to domestic violence. The persecution is saved only for his most intimate partner. Contrasting an abuser’s behavior vis-à-vis differing personal relationships debunks Sessions’ claim that domestic violence only occurs because of the “pre-existing relationship.” Apart from the applicant’s membership in the particular social group, no other reasonable explanation exists for the domestic violence.

Finally, courts must be reminded that Sessions’ remark that ARCG was attacked by her husband “because of his preexisting personal relationship with [her]”83 does not dispositively prevent domestic violence survivors from establishing the nexus. Sessions is guilty of the very criticism he levied on the BIA—reaching a conclusion without conducting an evaluation.84 In any event, the factual conclusion regarding the nexus in one case does not control another.

5. Internal Relocation

While not undertaking any evaluation of the A-B- facts, Sessions reminds asylum adjudicators to incorporate this element.85 As a general matter, when an asylum applicant has otherwise met the criteria for asylum, the status may nevertheless be denied if internal relocation is a legally recognized alterna­tive.86 However, the internal relocation standard and the burden of proof vary both upon whether an asylum applicant has established a case of past or a case of well-founded fear of (i.e. future) persecution and upon whether the persecutor is a government or non-government agent.

• a. Past Persecution

When a case of past persecution has been established, a rebuttable pre­sumption arises that the applicant has a well-founded fear of persecution. It is then DHS’s burden to rebut this presumption by meeting two discrete considerations: (1) the applicant’s ability to relocate and (2) the reasonable­ness of relocation.87

In demonstrating the applicant’s ability to relocate, DHS must first identify an area of the country where “the risk of persecution falls below the well-founded fear level” and then prove that such an area is “practically, safely and legally” accessible to the applicant.88 Once ability is established, the reason­ableness of relocation factor considers whether “under all the circumstances, it would be reasonable to expect the applicant to do so.”89 The non-exhaustive list of circumstances relevant to the reasonableness criterion includes all country conditions (e.g., civil strife, including economic, political, social, geographical, legal) as well as any personal conditions (e.g. age, gender, health, social and familial ties) that might make internal relocation unreasonable.90

When DHS meets its two-step burden, an individual who has suffered past persecution may still be awarded asylum as a discretionary matter—because DHS has merely rebutted the presumption of well-founded fear—by showing “compelling reasons for being unwilling or unable to return”91 or “a reasonable possibility that he or she may suffer other serious harm upon removal to that country.”92 This humanitarian award of asylum understands that the severity of the past persecution makes it inhumane to require an individual to return to the very country where such atrocities occurred.93

• b. Well-Founded Fear of Persecution

In contrast to past persecution claims, when eligibility for asylum rests strictly upon a well-founded fear of persecution and nongovernmental per­secution, the applicant retains the internal relocation burden and must meet a higher standard. In cases of nongovernmental persecution, the applicant bears the burden of showing “that it would not be reasonable for him or her to relocate.”94 On the other hand, in cases of government-sponsored persecution, the burden shifts to DHS to show the reasonableness of relocation.95

Practice Tip:

For domestic violence survivors, the internal relocation hurdle may be relatively easy to clear after the applicant has successfully met all of asylum’s other exceptional demands.96 As A-B- recognizes, the severity of the violence suffered by domestic violence survivors is often so “repugnant” 97that domestic violence claims will typically fall into the past persecution realm, thus placing the heavy “internal relocation” burden on the DHS. However, this in no way suggests that asylum applicants can overlook the internal relocation criteria. Applicants must counter any DHS arguments of relocation with both general country conditions and individual considerations.

Again, recognizing the dynamics of domestic violence is critical. Does the persecutor evidence a desire or ability to find the victim?98 Has the victim’s isolation from family or friends eliminated a support system? Is the victim relying on physical treatment or other mental and social services in the United States that are not available in the home country?

Likewise, a domestic violence asylum applicant cannot presume her facts will establish past persecution. Arguing in the alternative for asylum strictly upon a well-founded fear puts the “reasonableness of relocation” burden on the applicant. Sessions’ remarks show the height of this standard: “When the applicant has suffered personal harm at the hands of only a few specific indi­viduals, internal relocation would seem more reasonable than if the applicant were persecuted, broadly, by her country’s government.”99 Evidence unique to the applicant’s relationship to the persecutor, previous attempts to leave the relationship, the persecutor’s ability and inclination to find the victim, as well as the home country’s ability to protect domestic violence victims is therefore relevant. The domestic violence applicant can also introduce domestic violence literature or expert witnesses to show how the dynamics of domestic violence drive domestic violence perpetrators to great lengths to find their victims.100

Conclusion

Over twenty-five years ago when I began advocating for asylum seekers, Esther Olavarria Cruz, already a seasoned asylum attorney said to me: “Asylum cases are like climbing a mountain. There are so many places where you can fall off.” Matter of A-B- is a powerful reminder of the challenges presented by asylum law. However, with careful preparation, strong corroboration, and strict adherence to ejusdem generis, asylum remains within grasp for all asylum seekers, including domestic violence survivors.

 

NOTES

 

1. Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
2. Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014).

 

3. Matter of R-A-, 22 I&N Dec. 906 (BIA 1999) (en banc), vacated, 22 I& N Dec. 906 (AG 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded and stay lifted, 24 I&N Dec. 629 (AG 2008). In 1999, the Board in Matter of R-A- first considered whether “member­ship in a particular social group” could be because of domestic violence. Denying the claim, the en banc Board rejected the cognizability of the proposed particular social group “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination.” Matter of R-A-, 22 I&N Dec. 906, 918 (BIA 1999) (en banc). In 2001, Attorney General Janet Reno vacated Matter of R-A-, remanding it for the Board’s reconsideration. Her instructions were a result of asylum regulations which had been proposed on behalf of domestic vio­lence survivors on relevant asylum terminology including “persecution,” “membership in a particular social group,” and “on account of” a protected characteristic. Asylum and Withholding Definitions, 65 Fed. Reg. 76,588. 76,597-98 (proposed Dec. 7, 2000). In 2003, Attorney General John Ashcroft certified Matter of R-A- for his review and remanded it to the Board in 2005 “in light of the final rule.” Matter of R-A- 23, I&N Dec 694 (A.G. 2005). However, the proposed regulations were never finalized. In 2008, Attorney General Michael Mukasey certified the case for his review and issued an order that it be reconsidered without the need to await the final regulations. Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008). Yet, because the parties then stipulated to asylum, the BIA ultimately never issued another published opinion in Matter of R-A-. R-A- was granted asylum on December 10, 2009. For a summary review of the procedural history of Matter of R-A- see Matter of A-R-C-G-, 26 I&N Dec. 388, 390-391 (BIA 2014). For ongoing reliance on Matter of R-A- and the relevant proposed (never finalized) asylum regulations, see infra notes 57-59 and accompanying text.
4. Statement in Response to Sessions’ Decision in Matter of A-B- by Retired Immigration Judges and Former Members of the Board of Immigration Appeals (June 11, 2018), available at https://www.lexisnexis.com/LegalNewsRoom/immigration/b/immigra­tion-law-blog/posts/statement-in-response-to-session-s-decision-in-matter-of-a-b-by-retired-immigration-judges-and-former-members-of-the-board-of-immigration-appeals

 

5. On file with author (briefing schedules of EOIR Immigration Courts in Arlington, VA and Newark, NJ).

 

6. Michelle Brané, Women Fleeing Domestic Violence Deserve Asylum, WashingtonPost (June13, 2018); Katlie Benner and Caitlin Dickerson, Sessions Says Domestic and Gang Violence are not Grounds for Asylum, New York Times (June 11, 2018); Elise Foley, Trump Administration Restricts Asylum Access for Victims of Gang and Domestic Violence, HuffingtonPost (June 11, 2018); Jane Fonda and Karen Musalo, Her Husband Beat Her and Raped Her. Jeff Sessions Might Deport Her, New York Times (May 17, 2018).

 

7. USCIS, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B, Policy Memorandum (July 11, 2018).

 

8. House Committee on Appropriations, Department of Homeland Security House Appropriations Bill 115 H.R. ___ (July 25, 2018), available at https://docs.house.gov/ meetings/AP/AP00/20180725/108623/HMKP-115-AP00-20180725-SD004.pdf; see also Noah Lanard, Republicans Voted to Block Jeff Sessions’ Attacks on Asylum Seekers Fleeing Domestic Violence, Mother Jones (July 26, 2018), avilable at https://www. motherjones.com/politics/2018/07/republicans-voted-to-block-jeff-sessions-attacks-on-asylum-seekers-fleeing-domestic-violence/.

 

9. Grace et al. v. Sessions, Case 1:18-cv-01853 (D.C. DCt 2018). For further discussion of credible fear and expedited removal proceedings see Stephen H. Legomsky & Cristina M. Rodriguez, Immigration And Refugee Law And Policy (6th ed. 2015).

 

10. Noah Lanard, Jeff Sessions Has Been Targeting Asylum-Seekers Fleeing Domestic Violence. It’s Been “Devastating,” Mother Jones (July 26, 2018).

 

11. In Re __ (Unpublished BIA, June 15, 2018) (on file with author).

 

12. Matter of A-B-, supra note 1 at 333.

 

13. 19 I&N Dec. 211 (BIA 1985).

 

14. 8 U.S.C.A. §§ 1101(a)(42)(A), 1158(a).

 

15. In re Acosta, 19 I&N Dec. 211 (BIA 1985), overruled on other grounds, in re Mogharrabi, 19 I&N Dec. (BIA 1989).

 

16. Ibid.

 

17. In re A-M-E- & J-G-U-, 24 I& N Dec. 69 (BIA 2007).

 

18. In re W-G-R-, 26 I& N Dec. 208, 217 (BIA 2014).

 

19. Matter of A-B-, supra note 1 at 336.

 

20. See, e.g., M-E-V-G-, 26 I& N Dec. at 236, n. 11; W-G-R-, supra note 18 at 215.

 

21. Matter of A-B-, supra note 1 at 335.

 

22. Ibid. at 333-334. In A-R-C-G-, DHS conceded that A-R-C-G- was a member of a “cog­nizable” social group that was both particular and socially distinct. The Board thus avoided considering whether A-R-C-G- could establish the existence of a cognizable particular social group without defining the group by the fact of persecution.”).

 

23. Ibid. at 335.

 

24. Ibid. at 336.

 

25. Ibid. (relying on A-R-C-G-, supra note 2 at 392).
26. Ibid.

 

27 Ibid.

 

28. “The BIA should be accorded Chevron deference as it gives ambiguous statutory terms ‘concrete meaning through a process of case-by-case adjudication.” Negusie v. Holder, 555 U.S. 511, 517 (2009) (relying on Chevron, U.S.A., Inc. v Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). Chevron’s two-step analysis first asks, “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. Secondly, “[i]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute” Id. at 843; see also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005).

 

29. In 2008, the BIA heightened the standard “particular social group” by adding the two requirements of “social visibility” and “particularity” to the traditional standard of “common immutable characteristic. In re E-A-G-, 24 I&N Dec 591, 596 (BIA 2008), In re S-E-G-, 24 I&N 579, 584 (BIA 2008). Criticism of the new terms included de­cisions by the Third, Seventh and Ninth Circuits rejecting part or all the additional requirements. Valdiviezo-Galdamez II. v. U.S. Att’y Gen., 663 F3d 582, 606-08 (3rd Cir 2011) (finding elements of social visibility and particularity “inconsistent” with prior Board decisions and that the BIA had not established a “principled reason” for adopting inconsistent requirements), remanded sub nom, In re M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Gatimi v. Holder, 578 F3d 611, 616 (7th Cir. 2009) (rejecting “social visibility”); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (clarify­ing while reserving assessment of validity of “particularity” and “social visibility”). Responding to such criticism, in 2014, the BIA re-interpreted and modified the new terms and changed “social visibility” to social distinction.” Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I& N Dec. 208 (BIA 2014), affirmed in part, vacated and remanded in part on other grounds sub nom. Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016). Such changes have resulted in the Third Circuit recent adop­tion of the “particularity” and “social distinction” terms, finding them to be compliant with Chevron standards. S.E.R.L. v. Attorney General, No. 894 F3d 535 (3rd Cir. 2018). After it’s earlier rejection of “social visibility,” the Seventh Circuit has failed to use or discuss “social distinction.” R.R.D. v. Holder, 746 F.3d 807 (7th Cir. 2014). For earlier discussions of the “social distinction” and “particularity” terms and their origins see Linda Kelly, “On Account Of” Private Violence: The Personal/Political Dichotomy of Asylum’s Nexus 98, 108-118 (2017); Linda Kelly, The New Particulars of Asylum’s “Particular Social Group,” 36 Whittier Law Rev. 219 (2015).

 

30. A-R-C-G-, supra note 2 at 393, n. 14

 

31. “A battered woman is a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man to coerce her to do something he wants her to do without any concern for her rights. Battered women include wives or women in any form of intimate relationships with men. Furthermore, to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.” Lenore E. Walker, The Battered Woman, xv (1979).

 

32. Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 28-34, 53055 (1991) (criticizing the physical definition of domestic violence and its failure to address the “power and control, domination and subordination” dimensions); Joan S. Meier, Notes from the Underground: Integrating Psychological and Legal Perspectives on Domestic Violence in Theory and Practice, 21 Hofstra L. Rev. 1295, 1317-22 (1993) (focusing on the patriarchal dynamics of domestic violence); G Chezia Carraway, Violence Against Women of Color, 43 Stan. L. Rev.

1301, 1305-1306 (1991) (relying on the patriarchal definition of domestic violence to include “economic violence, cultural violence, legislative violence, medical violence, spiritual violence, emotional violence and educational violence).

 

33. The “power and control wheel, otherwise known as the “Duluth Model” is attributed to the Duluth Domestic Abuse Intervention Project (DAIP) in Duluth, Minnesota. From a central hub of “power and control,” the wheel’s outer time is a circle of physical and sexual violence. However, this central “power and control” is connected to the outer circle through spokes identified as such additional forces as using children, minimiz­ing, denying, blaming, isolating, relying upon male privilege, coercing, threatening, intimidating, and abusing both emotionally and economically. Ellen Pence & Michale Paymar, Education Groups For Men Who Batter: The Duluth Model 1-15 (1993).

 

34. Walker, supra note 31 at 27 (recognizing the love which is restored during periods of contrition in the cycle of violence).

 

35. Mahoney, supra note 32 at 8 (acknowledging her reluctance to tell her own story).

 

36. R. Emerson Dobash & Russell Dobash, Violence Against Wives 148 (1979) (finding children to be the most cited reason a battered woman stays); Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Women’s Movement, 61 N.Y.U. L.Rev. 589, 614-615 (1986) (recognizing that a woman’s “connected nature” can result in making decisions regarding her own welfare in connection with consideration for both her spouse’s and children’s interests).

 

37. Kimberlé Crenshaw, Panel Presentation on Cultural Battery, 25 U.Tol.L.Rev. 891, 893 (1995) (acknowledging that a victim of abuse does not want to leave, but simply wants the violence to stop); Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1991).

 

38. Catherine T. Kenney & Karen R. Brown, Now Legal Def. & Educ. Fund, Report From The Front Lines: The Impact Of Violence On Poor Women (1996); Martha F. Davis & Susan J. Kraham, Protecting Women’s Welfare in the Face of Violence, 22 Fordham Urb. L.J. 1141 (1995).

 

39. See supra notes 31-38 and accompanying text. For an additional sampling of the volumes of works dedicated to the patriarchal use of domestic violence see e.g., Ola W. Barnett & Alyce D. Laviolette, It Could Happen To Anyone: Why Battered Women Stay (2d ed. 2000); R. Emerson Dobash Et Al., Changing Violence Men (2000); Dobash & Dobash, supra note 36; Donald G. Dutton, The Domestic Assault Of Women: Psychological And Criminal Justice Perspectives (1995); Feminist Perspectives On Wife Abuse (Kersti Yllo & Michele Bograd eds., 1988); Jean Giles-Sims, Wife Battering: A Systems Approach (1983); Jerry M. Goffman, Self-Help Counseling For Men Who Batter Women (1983); Edward W. Gondolf & David M. Russell, Man To Man: A Guide For Men In Abusive Relationships (1987); Edward W. Gondolf, Men Who Batter: An Integrated Approach For Stopping Wife Abuse (1985); Neil S. Jacobson & John Gottman, When Men Batter Women: New Insights Into Ending Abusive Relationships (1998); Edward Jukes, Men Who Batter Women (1999); Legal Responses To Wife Assault: Current Trends And Evaluations (N. Zoe Hilton ed., 1993), Catharine A. Mackinnon, Feminism Unmodified: Discourses On Life And Law, 85-92 (1987); Pence & Paymar, supra note 33; Anson Shupe Et Al., Violence Men, Violent Couples: The Dynamics Of Domestic Violence (1987); Daniel Jay Sonkin Et Al., The Male Batterer: A Treatment Approach (1985); Richard A. Stordeur & Richard Stille, Ending Men’s Violence Against Their Partners: One Road To Peace (1989); Walker, supra note 31; David B. Wexler, Domestic Violence 2000: An Integrated Skills Program For Men: Group Leader’s Manual (2000); Woman Battering: Policy Responses (Michael Steinman ed., 1991); Cynthia Grant Bowman, The Arrest Experiments: A Feminist Critique, 83 J. Crim. L. & Criminology 201 (1992); Donald G. Dutton & James J. Browning, Power Struggles And Intimacy Anxieties As Causative Factors Of Wife Assault, In Violence In Intimate Relationships 163 (Gordon W. Russell Ed., 1988); Ruth E. Fleury, Missing Voices: Patterns Of Battered Women’s Satisfaction With The Criminal Legal System, 8 Violence Against Women 181 (2002); Carol Gregory & Edna Erez, The Effects Of Batterer Intervention Programs: The Battered Women’s Perspective, 8 Violence Against Women 206 (2002); Demie Kurz, Physical Assault By Husbands: A Major Social Problem, In Current Controversies On Family Violence 88 (Richard Gelles & Donileen R. Loseke eds., 1993); Mahoney, supra note 32; Elizabeth M. Schneider, Making Reconceptualization of Violence Against Women Real, 58 Alb. L. Rev. 1245 (1995); Malinda L. Seymore, Isn’t It a Crime: Feminist Perspectives on Spousal Immunity and Spousal Violence, 90 Nw. U.L. REV. 1032 (1996); Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117).

 

40. Asylum applicants bear the burden of specifically delineating her proposed particular social group before the Immigration Judge. Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018).

 

41. Clearly, a different fact pattern will require changing the nationality, or if the applicant is not married casting the group through such terms as “Women of X Country” in inti­mate relationships or “Women of X Country with Children living with their partners.”

 

42. It will also avoid a much earlier criticism that the Particular Social Group were often being held to a higher standard by having to conflate various aspects of their claims, see e.g, Matter of Kasinga, 21 I&N Dec 357, 373 (BIA 1996) (Rosenberg concurrence); Linda Kelly, Republican Mothers, Bastards’ Fathers and Good Victims, Discarding Citizens and Equal Protection through the Failures of Legal Images, 51 Hastings L.J. 557, 591-592 (discussing Kasinga’s particular social group)

 

43. “[W]e have rejected the notion that a persecuted group may simply represent too large a portion of a population to allow its members to qualify for asylum…[T]he size and breadth of a group alone does not preclude a group from qualifying for asylum. Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir. 1962).

 

44. Large groups accepted by the BIA include In re H-, 21 I&N Dec 337 (BIA 1997) (Somali clans); In re V-T-S-, 21 I& N Dec. 77 (BIA 1993) (Filipinos of Chinese ancestry). Numerous circuit opinions also support large groups. See e.g., Singh v. INS, 94 F3d 1353, 1359 (9th Cir. 1996) (“race” for Indo-Fijians, constituting half the population of Fiji); Mihalev v. Ashcroft, 388 F3d 772, 726 (9th Cir. 2004) (“gypsies”); Harouni v. Gonzales, 399 F.3d. 1163, 1172 (9th Cir 2005) (alien homosexuals); Hernandez-Montiel v. I.N.S., 225 F3d 1084 (9th Cir. 2000) (Mexican men with female sexual identities); Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005) (“Somali females”).

 

45. Matter of A-B-, supra note 1 at 338 (quoting Cece v Holder, 733 F.3d 662, 673 (7^th Cir. 2013).

 

46. For my pre Matter of A-B- advocacy of alternative theories for domestic violence survivors see Kelly, “On Account of Private Violence, supra note 29

 

47. See e.g., Uwais v. U.S. Att’y Gen., 478 F.3d 513, 517 (2nd Cir. 2007). The applicant must show the protected ground was “one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i). “It need not be the sole nor primary reason.” Gomez-Rivera v. Sessions, 897 F3d 995, 998 (8th Cir. 2018) (quoting Marroquin-Ochoma v. Holder, 574 F.3d 574, 577 (8th Cir. 2009) (“[T]he persecution need not be solely, or even predominantly, on account of the [protected ground.]”). “But, the protected ground ‘cannot be merely inci­dental or tangential’ to another reason for the persecution.” Gomez-Rivera, id (quoting In Re J-B-N- & S-M-, 24 I. & N. Dec. 208, 213 (BIA 2007) (internal quotation marks omitted)).

 

48. 411 F.3d 135 (3rd Cir. 2005).

 

49. Ibid.

 

50. Ibid. at 160.

 

51. Ibid. at 161-64.

 

52. For a discussion of the level of physical or economic harm required see e.g., Matter of Acosta, supra note at 222; see also Matter of T-Z-, 24 I&N Dec. 163, 172-73 (BIA 2007).

 

53. Kasinga, supra note at 365, indicating that while persecution may also be inflicted to “punish” the victim for such characteristic, punishment is not essential.

 

54. Matter of Acosta, supra note 15 at 222.

 

55. Since 2005, credibility determinations for asylum applicants are subject to the REAL ID Act. Pub. L. No. 109-13 div. B, §§ 101(a)(3), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). While an applicant’s testimony alone may be credible, there is “no presumption of credibility”. 8 U.S.C. §1158(b)(1)(B)(iii). Credibility is based on a “totality of the circumstances” allowing negative credibility determinations to be based on identified inconsistencies which are unrelated to an applicant’s core asylum claim: “Considering the totality of circumstances, and all relevant factors, a trier of fact may base a credibility determination on…the consistency between the applicant’s or witness’s written and oral statements…, the internal consistency of each such statement, [and] the consistency of such statements with other evidence of record…, without regard to whether an inconsistency, inaccuracy, or falsehood, goes to the heart of the applicant’s claim, or any other factor.” Id. Additionally, the REAL ID Act’s requires providing all corroborating evidence which is “reasonably available”. 8 U.S.C. §1158(b)(2).

 

56. Matter of A-B-, supra note 1 at 337.

 

57. Ibid. (quoting Matter of R-A-, 22 I&N Dec at 920). In supporting his repeated reli­ance on R-A-, Sessions points to the BIA’s and other courts ongoing footnote reliance. Matter of A-B-, 27 I&N Dec. at 329 (quoting M-E-V-G-, 26 I&N Dec. at 231 n.7 (BIA 2014) (R-A-‘s “role in progression of particular social group claims remains relevant”; Henriquez-Rivas, 707 F.3d at 1090 n.11 (“R-A was later vacated[,]…litigants and other courts have relied heavily upon its analysis.”); Valdiviezo-Galdamez, 663 F.3d 567-97, n 8 “R-A– is so important to the claim before us here.”). For earlier discussion of R-A-and its history see supra note 3 and accompanying text.

 

58. PROPOSED REG, supra note 3 at 76593 (emphasis added).

 

59. Ibid. at 75694.

 

60. Matter of A-B-, supra note 1 at 337 (quoting Menjivar v. Gonzales, 416 F3d 918, 921 (8th Cir. 2005) (quoting Matter of McMullen, 17 I&N Dec. 542, 546 (BIA 1980)).

 

61. Matter of A-B-, supra note 1 at 337 (quoting Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000) see also Hor, 400 F.3d, supra at 485.

 

62. Ibid. (BIA remands to the IJ on whether government unable or unwilling to control the persecutor).

 

63. Ibid. (“The fact that the local police have not acted on a particular report of an individual crime does not necessarily mean that the government is unwilling or unable to control crime, any more than it would in the United States. There may be many reasons why a particular crime is not successfully investigated and prosecuted. Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.”).

 

64. Ibid. at 338.

 

65. Ibid. (quoting A-R-C-G-, 26 I&N Dec. at 392, 395). For additional instances of A-B-’s criticism of the BIA for failing to engage in its own analysis see supra note 22-27 and accompanying text.

 

66. Ibid. at 339.

 

67. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

 

68. Ibid.

 

69. Ibid.

 

70. Ibid.

 

71. Ibid.

 

72. In re S-P-, 21 I& N Dec. 486, 489 (BIA 1996). For further discussion of the “imputed political opinion” theory after Elias-Zacarias see Stephen H. Legomsky & Cristina M. Rodriguez, Immigration And Refugee Law And Policy 943-49 (6th ed. 2015).

 

73. In re S-P-, supra note 72.

 

74. In re V-T-S-, 21 I& N Dec. 792, 798 (BIA, 1997). For further discussion of the “one central reason” standard see supra note 47 and accompanying text.

 

75. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (the applicant “must provide some evidence of [motive], direct or circumstantial.”).

 

76. In re D-V-, 21 I. & N. 77, 79 (BIA 1993). Notably, D-V- was also “on account of political opinion” and not based on gender or any other derivation of “membership in a particular social group.” For my earlier advocacy of relying upon one of the alternative four “on account of factors of “political opinion, race, religion or political opinion” see supra notes 46-51 and accompanying text.

 

77. Castillo-Hernandez v. U.S. Attorney General, 297 Fed. Appx. 894, 897-898 (11th Cir. 2008).

 

78. Ibid.

 

79. Ibid. at 900.

 

80. Matter of S-P-, supra note 72 at 490.

 

81. Ibid. (quoting Matter of Fuentes, 19 I & N Dec. 658. 622 (BIA 1988); see also In re V-T-S-, 21 I& N Dec. at 798 (applicant bears burden of proving one motivation for kidnapping wealthy business owners in Philippines related to five factors).

 

82. In Navas v. INS, when police beat and threatened the spouse of a “known dissident,” the Ninth Circuit deemed it “logical, in the absence of evidence pointing to another motive, to conclude that they did so because of the spouse’s presumed guilt by associa­tion.” Navas v. INS, 217 F.3d 646, 658 (9th Cir. 2000); see also Meza-Manay v. INS, 139 F.3d 759, 764 (9th Cir. 1980) (no other explanation or better evidence); Ventura, 264 F.3d at 1154 (direct or circumstantial guilt by association); Del Carmen Molina v. INS, 170 .3d 1247, 1249 (9th Cir 1999) (guilt by association or direct evidence); Rios v. Ashcroft, 287 F.3d 895 (9th Cir 2002).

 

83. Matter of A-B-, supra note 1 at 339. For earlier discussion of such remark see infra notes…and accompanying text.

 

84. For earlier discussions of this criticism see supra notes 22-27 and accompanying text.

 

85. Matter of A-B-, supra note 1 at 344.

 

86. Matter of M-Z-M-R, 26 I&N Dec. 28 (BIA 2012).

 

87. Ibid.

 

88. 8 C.F.R. §1208.13(b)(1)(ii); see also Matter of M-Z-M-R, supra note 86 at 34.

 

89. 8 C.F.R. § 1208.13(b)(1)(i)(B); see also Matter of M-Z-M-R, supra note 86 at 34.

 

90. Ibid.

 

91. 8 C.F.R. § 1208.13(b)(1)(iii)(A); see also Matter of M-Z-M-R, supra note 86 at 31; Matter of L-S-, 25 I&N Dec. 705 (BIA 2012).

 

92. 8 C.F.R. § 1208.13(b)(1)(iii)(B); see also Matter of M-V-M-R, supra note 86 at 31; Matter of L-S-, supra note 91.

 

93. Matter of Chen, 20 I&N 16 (BIA 1989).

 

94. 8 C.F.R. § 1208.13(b)(3)(i); see also Matter of M-Z-M-R, supra note 86 at 33 n.5 (citing Matter of C-A-L-, 21 I&N Dec. 754, 757 (BIA 1997) (Guatemela internal relocation; guerrillas located in remote areas, threats to general population decreased, low-profile victims able to relocate); Matter of R-, 20 I&N at 627 (India internal relocation outside of Punjab); Matter of Acosta, 19 I&N Dec. 211, 236 (BIA 1985), modified on other grounds in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987) (El Salvador internal relocation, guerrillas not persecuting taxi drivers country-wide).

 

95. 8 C.F.R. § 1208.13(b)(3)(i).

 

96. For a review of each of asylum’s criteria see supra notes 54-59 and accompanying text (persecution); supra notes 14-51 and accompanying text (membership in a particular social group), supra notes 65-84 and accompanying text (“on account of”).

 

97. Matter of A-B-, supra note 1.

 

98. For the story of the impossibility of one survivor to internal relocate see Pamela Constable, “He Forced Me Many Times. I Ran Away But He Always Found Me Again.” WashingtonPost (Jan 31, 2016).

 

99. “When the applicant has suffered personal harm at the hands of only a few specific individuals, internal relocation would seem more reasonable than if the applicant were persecuted, broadly, by her country’s government.” Matter of A-B-, supra note 1 at 345.

 

100. Martha Mahoney’s separation assault theory explains how difficult it is to escape. Mahoney supra note 32 at 65-66: “Separation Assault is the attack on the woman’s body and volition in which her partner seeks to prevent her from leaving, retaliate for the separation, or force her to return. It aims at overbearing her will as to where and with whom she will live, and coercing her in order to enforce connection in a relation­ship. It is an attempt to gain, retain, or regain power in a relationship, or to punish the woman for ending the relationship. It often takes place over time.”