Interim Decision #3403

Interim Decision #3403

In re R-A-, Respondent

Decided by Attorney General January 19, 2001

Decided by Board June 11, 1999

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Jane B. Kroesche, Esquire, San Francisco, California, for respondent

Karen Musalo, Esquire, San Francisco, California, for amicus curiae1

Nancy Kelly, Esquire, and Deborah Anker, Esquire, Boston, Massachusetts, for amicus curiae

Amy T. Lee, Assistant District Counsel, for the Immigration and Naturalization Service

BEFORE THE ATTORNEY GENERAL

(January 19, 2001)

(1) The Attorney General vacates the decision of the Board of Immigration Appeals and

remands the case to the Board for reconsideration following final publication of the proposed

rule published at 65 Fed. Reg. 76,588 (proposed Dec. 7, 2000).

Pursuant to 8 C.F.R § 3.1(h)(1 )(iii), the Acting Commissioner of the Immigration and

Naturalization Service has referred to the Attorney General for review the June 11, 1999,

decision of the Board of Immigration Appeals (Board) that overturned the Immigration

Judge’s decision dated September 20, 1996. The June 11, 1999 decision of the Board is hereby vacated and the matter is remanded to the Board for reconsideration. I direct the Board to

stay reconsideration of the decision until after the proposed rule published at 65 Fed. Reg.

76588 (Dec. 7, 2000) is published in final form. The Board should then reconsider the decision in light of the final rule.

BEFORE THE BOARD

(June 11, 1999)

(1) Where a victim of domestic violence fails to introduce meaningful evidence that her husband’s behavior was influenced by his perception of her opinion, she has not demonstrated

harm on account of political opinion or imputed political opinion.

1

This Board acknowledges with appreciation the thoughtful arguments raised in amici

curiae’s brief.

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(2) The existence of shared descriptive characteristics is not necessarily sufficient to qualify

those possessing the common characteristics as members of a “particular social group” for the

purposes of the refugee definition at section 101(a)(42)(A) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1994); rather, in construing the term in keeping

with the other four statutory grounds, a number of factors are considered in deciding whether

a grouping should be recognized as a basis for asylum, including how members of the grouping are perceived by the potential persecutor, by the asylum applicant, and by other members

of the society.

(3) An applicant making a “particular social group” claim must make a showing from which

it is reasonable to conclude that the persecutor was motivated to harm the applicant, at least

in part, by the asserted group membership.

(4) An asylum applicant who claims persecution on the basis of a group defined as

“Guatemalan women who have been involved intimately with Guatemalan male companions,

who believe that women are to live under male domination” must demonstrate, inter alia, that

her persecutor husband targeted and harmed her because he perceived her to be a member of

this particular social group.

Before:

Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, JONES, and GRANT, Board Members.

Dissenting Opinion: GUENDELSBERGER, Board Member, joined by SCHMIDT,

Chairman; VILLAGELIU, ROSENBERG, and MOSCATO, Board Members.

FILPPU, Board Member:

In a decision dated September 20, 1996, an Immigration Judge granted

the respondent’s application for asylum under section 208(a) of the

Immigration and Nationality Act, 8 U.S.C. § 1158(a) (1994). The

Immigration and Naturalization Service has timely appealed the grant of

asylum. The Service’s request for oral argument before the Board has been

withdrawn. The appeal will be sustained.

I. ISSUES

The question before us is whether the respondent qualifies as a

“refugee” as a result of the heinous abuse she suffered and still fears from

her husband in Guatemala. Specifically, we address whether the repeated

spouse abuse inflicted on the respondent makes her eligible for asylum as

an alien who has been persecuted on account of her membership in a particular social group or her political opinion. We find that the group identified by the Immigration Judge has not adequately been shown to be a “particular social group” for asylum purposes. We further find that the respondent has failed to show that her husband was motivated to harm her, even in

part, because of her membership in a particular social group or because of

an actual or imputed political opinion. Our review is de novo with regard to

the issues on appeal. See Matter of Burbano, 20 I&N Dec. 872 (BIA 1994).

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II. FACTUAL BACKGROUND

A. Testimony and Statements of Abuse

The respondent is a native and citizen of Guatemala. She married at age

16. Her husband was then 21 years old. He currently resides in Guatemala,

as do their two children. Immediately after their marriage, the respondent

and her husband moved to Guatemala City. From the beginning of the marriage, her husband engaged in acts of physical and sexual abuse against the

respondent. He was domineering and violent. The respondent testified that

her husband “always mistreated me from the moment we were married, he

was always . . . aggressive.”

Her husband would insist that the respondent accompany him wherever he went, except when he was working. He escorted the respondent to her

workplace, and he would often wait to direct her home. To scare her, he

would tell the respondent stories of having killed babies and the elderly

while he served in the army. Oftentimes, he would take the respondent to

cantinas where he would become inebriated. When the respondent would

complain about his drinking, her husband would yell at her. On one occasion, he grasped her hand to the point of pain and continued to drink until

he passed out. When she left a cantina before him, he would strike her. As

their marriage proceeded, the level and frequency of his rage increased concomitantly with the seeming senselessness and irrationality of his motives.

He dislocated the respondent’s jaw bone when her menstrual period was 15

days late. When she refused to abort her 3- to 4-month-old fetus, he kicked

her violently in her spine. He would hit or kick the respondent “whenever

he felt like it, wherever he happened to be: in the house, on the street, on

the bus.” The respondent stated that “[a]s time went on, he hit me for no

reason at all.”

The respondent’s husband raped her repeatedly. He would beat her

before and during the unwanted sex. When the respondent resisted, he

would accuse her of seeing other men and threaten her with death. The

rapes occurred “almost daily,” and they caused her severe pain. He passed

on a sexually transmitted disease to the respondent from his sexual relations

outside their marriage. Once, he kicked the respondent in her genitalia,

apparently for no reason, causing the respondent to bleed severely for 8

days. The respondent suffered the most severe pain when he forcefully

sodomized her. When she protested, he responded, as he often did, “You’re

my woman, you do what I say.”

The respondent ran away to her brother’s and parents’ homes, but her

husband always found her. Around December 1994, the respondent

attempted to flee with her children outside the city, but her husband found

her again. He appeared at her door, drunk, and as she turned to leave, he

struck her in the back of her head causing her to lose consciousness. When

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she awoke, he kicked her and dragged her by her hair into another room and

beat her to unconsciousness.

After 2 months away, her husband pleaded for the respondent’s return,

and she agreed because her children were asking for him. One night, he

woke the respondent, struck her face, whipped her with an electrical cord,

pulled out a machete and threatened to deface her, to cut off her arms and

legs, and to leave her in a wheelchair if she ever tried to leave him. He

warned her that he would be able to find her wherever she was. The violence continued. When the respondent could not give 5,000 quetzales to him

when he asked for it, he broke windows and a mirror with her head.

Whenever he could not find something, he would grab her head and strike

furniture with it. Once, he pistol-whipped her. When she asked for his motivation, he broke into a familiar refrain, “I can do it if I want to.”

Once, her husband entered the kitchen where the respondent was and,

for no apparent reason, threw a machete toward her hands, barely missing

them. He would often come home late and drunk. When the respondent

noted his tardiness, he punched her. Once, he asked where the respondent

had been. When she responded that she had been home waiting for him, he

became enraged, struck her face, grabbed her by her hair, and dragged her

down the street. One night, the respondent attempted to commit suicide.

Her husband told her, “If you want to die, go ahead. But from here, you are

not going to leave.”

When asked on cross-examination, the respondent at first indicated that

she had no opinion of why her husband acted the way he did. She supposed,

however, that it was because he had been mistreated when he was in the

army and, as he had told her, he treated her the way he had been treated. The

respondent believed he would abuse any woman who was his wife. She testified that he “was a repugnant man without any education,” and that he saw

her “as something that belonged to him and he could do anything he wanted” with her.

The respondent’s pleas to Guatemalan police did not gain her protection. On three occasions, the police issued summons for her husband to

appear, but he ignored them, and the police did not take further action.

Twice, the respondent called the police, but they never responded. When the

respondent appeared before a judge, he told her that he would not interfere

in domestic disputes. Her husband told the respondent that, because of his

former military service, calling the police would be futile as he was familiar with law enforcement officials. The respondent knew of no shelters or

other organizations in Guatemala that could protect her. The abuse began

“from the moment [they] were married,” and continued until the respondent

fled Guatemala in May 1995. One morning in May 1995, the respondent

decided to leave permanently. With help, the respondent was able to flee

Guatemala, and she arrived in Brownsville, Texas, 2 days later.

A witness, testifying for the respondent, stated that she learned through

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the respondent’s sister that the respondent’s husband was “going to hunt her

down and kill her if she comes back to Guatemala.”

We struggle to describe how deplorable we find the husband’s conduct

to have been.

B. Country Conditions

Dr. Doris Bersing testified that spouse abuse is common in Latin

American countries and that she was not aware of social or legal resources

for battered women in Guatemala. Women in Guatemala, according to Dr.

Bersing, have other problems related to general conditions in that country,

and she suggested that such women could leave abusive partners but that

they would face other problems such as poverty. Dr. Bersing further testified that the respondent was different from other battered women she had

seen in that the respondent possessed an extraordinary fear of her husband

and her abuse had been extremely severe.

Dr. Bersing noted that spouse abuse was a problem in many countries

throughout the world, but she said it was a particular problem in Latin

America, especially in Guatemala and Nicaragua. As we understand her testimony, its roots lie in such things as the Latin American patriarchal culture,

the militaristic and violent nature of societies undergoing civil war, alcoholism, and sexual abuse in general. Nevertheless, she testified that husbands are supposed to honor, respect, and take care of their wives, and that

spouse abuse is something that is present “underground” or “underneath in

the culture.” But if a woman chooses the wrong husband her options are

few in countries such as Guatemala, which lack effective methods for dealing with the problem.

The Department of State issued an advisory opinion as to the respondent’s asylum request. The opinion states that the respondent’s alleged mistreatment could have occurred given its understanding of country conditions in Guatemala. The opinion further indicates:

[S]pousal abuse complaints by husbands have increased from 30 to 120 a month due

to increased nationwide educational programs, which have encouraged women to seek

assistance. Family court judges may issue injunctions against abusive spouses, which

police are charged with enforcing. The [Human Rights Ombudsman] women’s rights

department and various non-governmental organizations provide medical and legal

assistance.

The respondent has submitted numerous articles and reports regarding

violence against women in Guatemala and other Latin American countries.

One article, prepared by Canada’s Immigration and Refugee Board, indicates that Guatemala has laws against domestic violence, that it has taken

some additional steps recently to begin to address the problem, and that

“functionaries” in the legal system tend to view domestic violence as a vio910

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lation of women’s rights. Nevertheless, the article indicates that

Guatemalan society still tends to view domestic violence as a family matter, that women are often not aware of available legal avenues, and that the

pursuit of legal remedies can often prove ineffective.

III. IMMIGRATION JUDGE’S DECISION

The Immigration Judge found the respondent to be credible, and she

concluded that the respondent suffered harm that rose to the level of past

persecution. The Immigration Judge also held that the Guatemalan

Government was either unwilling or unable to control the respondent’s husband. The balance of her decision addressed the issue of whether the

respondent’s harm was on account of a protected ground.

The Immigration Judge first concluded that the respondent was persecuted because of her membership in the particular social group of

“Guatemalan women who have been involved intimately with Guatemalan

male companions, who believe that women are to live under male domination.” She found that such a group was cognizable and cohesive, as members shared the common and immutable characteristics of gender and the

experience of having been intimately involved with a male companion who

practices male domination through violence. The Immigration Judge then

held that members of such a group are targeted for persecution by the men

who seek to dominate and control them.

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.

IV. ARGUMENTS ON APPEAL

On appeal, the Service argues that “Guatemalan women who have been

involved intimately with Guatemalan male companions, who believe that

women are to live under male domination” is not a particular social group,

and that the respondent was not harmed because she belonged to such a

group. The Service also contends that the respondent’s husband did not persecute the respondent because of an imputed political opinion.

The respondent’s brief supports the Immigration Judge’s conclusions

and advances additional arguments. The Refugee Law Center and the

International Human Rights and Migration Project filed a joint amicus curiae brief. The thorough and well-prepared amicus brief argues that the

Immigration Judge’s decision is supported not only by United States asy911

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lum law, but also by international human rights laws, and that the respondent’s asylum claims should be analyzed against the fundamental purpose

of refugee law: to provide surrogate international protection when there is

a fundamental breakdown in state protection resulting in serious human

rights violations tied to civil and political status.

V. THE LAW

An asylum applicant bears the burden of proof and persuasion of showing that he or she is a refugee within the meaning of section 101(a)(42)(A)

of the Act, 8 U.S.C. § 1101(a)(42)(A) (1994), to be eligible for asylum

under section 208(a) of the Act. The term “refugee” refers to:

any person who is outside any country of such person’s nationality . . . and who is

unable or unwilling to return to, and is unable or unwilling to avail himself or herself

of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion.

Section 101(a)(42)(A) of the Act; , 480 U.S. 421, 441 (1987).

We have held that members of a particular social group share a “common, immutable characteristic” that they either cannot change, or should

not be required to change because such characteristic is fundamental to

their individual identities. See Matter of Kasinga, 21 I&N Dec. 357 (BIA

1996); Matter of H-, 21 I&N Dec. 337 (BIA 1996); Matter of Acosta, 19

I&N Dec. 211 (BIA 1985), modified on other grounds, Matter of

Mogharrabi, 19 I&N Dec. 439 (BIA 1987). The United States Court of

Appeals for the Ninth Circuit, the circuit within which this case arises,

defines a particular social group as:

a collection of people closely affiliated with each other, who are actuated by some

common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which impart some common characteristic that is fundamental to their identity as a member of that discrete social group.

Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986); see also Li v.

INS, 92 F.3d 985 (9th Cir. 1996); De Valle v. INS, 901 F.2d 787 (9th Cir.

1990).

The asylum applicant bears the burden of providing evidence, either

direct or circumstantial, from which it is reasonable to conclude that her

persecutor harmed her at least in part because of a protected ground. See

INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992); Matter of T-M-B-, 21 I&N

Dec. 775 (BIA 1997), petition granted and remanded sub nom. Borja v.

INS, 175 F.3d 732 (9th Cir. Apr. 30, 1999). The Court in Elias-Zacarias

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pointed out that overcoming or punishing a protected characteristic of the

victim, and not the persecutor’s own generalized goals, must be the motivation for the persecution. INS v. Elias-Zacarias, supra, at 482 (“The ordinary meaning of the phrase ‘persecution on account of . . . political opinion’ . . . is persecution on account of the victim’s political opinion, not the

persecutor’s.”).

In rendering her decision, the Immigration Judge relied in part on the

May 26, 1995, INS Asylum Gender Guidelines. See Phyllis Coven, U.S.

Dep’t of Justice, Considerations For Asylum Officers Adjudicating Asylum

Claims From Women (1995) (“DOJ Guidelines”). On appeal, the parties

argue over the applicability and force of the DOJ Guidelines to this case. We

agree with the Immigration Judge that the guidelines make clear the point,

which is independently evident on this record, that the level of harm experienced by the respondent rises beyond the threshold of that required for “persecution.” The DOJ Guidelines also set forth various considerations for

addressing “social group” and “political opinion” questions, but they provide

no definitive answers for a case such as the one before us. Specifically, we

do not read the DOJ Guidelines, which are instructive but not controlling on

us, as resolving the issue of whether or when past spouse abuse may qualify

a female applicant as a “refugee” under United States asylum law.

Similarly, we find no definitive answer in the language of the statute.

Congress envisioned that the spouse of an alien granted asylum would ordinarily be accorded derivative asylee status, if he or she was not independently eligible. Congress provided for that derivative status, if the spouse

were “accompanying, or following to join,” the principal applicant. See section 208(c) of the Act (1994). Subsequent to enactment of the basic asylum

provisions of current law in 1980, Congress has created specific forms of

relief, outside our refugee laws, for some women living in or escaping from

abusive marriages. See, e.g., section 240A(b)(2) of the Act, 8 U.S.C. §

1229b(b)(2) (Supp. II 1996) (cancellation of removal for spouses battered

by a permanent resident or United States citizen); section 244(a)(3) of the

Act, 8 U.S.C. § 1254(a)(3) (1994) (suspension of deportation for spouses

battered by a permanent resident or United States citizen). No changes relative to battered spouses were made in the refugee definition or the asylum

statute at the time of enactment of the battered spouse provisions.

The existence of derivative refugee status for spouses, as well as these

nonrefugee provisions for battered spouses, raises the question whether

Congress intended or expected that our immigration laws, even in the

refugee and asylum context, would cover battered spouses who are leaving

marriages to aliens having no ties to the United States. But we do not read

the literal language of the statute actually to foreclose a construction that

would accord refugee status to a battered spouse. In this case, we look principally to the facts to resolve both the “political opinion” and “social group”

claims, and we do not intend any categorical rulings as to analogous social

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group claims arising under any other conceivable set of circumstances.

Nevertheless, in reaching our decision, we find significant guidance in

assessing the operation of the “particular social group” category by looking

to the way in which the other grounds in the statute’s “on account of” clause

operate.

VI. ANALYSIS

As noted above, we agree with the Immigration Judge that the severe

injuries sustained by the respondent rise to the level of harm sufficient (and

more than sufficient) to constitute “persecution.” We also credit the respondent’s testimony in general and specifically her account of being unsuccessful in obtaining meaningful assistance from the authorities in

Guatemala. Accordingly, we find that she has adequately established on this

record that she was unable to avail herself of the protection of the

Government of Guatemala in connection with the abuse inflicted by her

husband. The determinative issue, as correctly identified by the

Immigration Judge, is whether the harm experienced by the respondent was,

or in the future may be, inflicted “on account of” a statutorily protected

ground.

It is not possible to review this record without having great sympathy

for the respondent and extreme contempt for the actions of her husband.

The questions before us, however, are not whether some equitable or prosecutorial authority ought to be invoked to prevent the respondent’s deportation to Guatemala. Indeed, the Service has adequate authority in the form

of “deferred action” to accomplish that result if it deems it appropriate.

Rather, the questions before us concern the respondent’s eligibility for relief

under our refugee and asylum laws. And, as explained below, we do not

agree with the Immigration Judge that the respondent was harmed on

account of either actual or imputed political opinion or membership in a

particular social group.

A. Imputed Political Opinion

The record indicates that the respondent’s husband harmed the respondent regardless of what she actually believed or what he thought she

believed. The respondent testified that the abuse began “from the moment

[they] were married.” Even after the respondent “learned through experience” to acquiesce to his demands, he still abused her. The abuse took place

before she left him initially, and it continued after she returned to him. In

fact, he said he “didn’t care” what she did to escape because he would find

her. He also hurt her before her first call to the police and after her last plea

for help.

The respondent’s account of what her husband told her may well reflect

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his own view of women and, in particular, his view of the respondent as his

property to do with as he pleased. It does not, however, reflect that he had

any understanding of the respondent’s perspective or that he even cared

what the respondent’s perspective may have been. According to the respondent, he told her, “You’re my woman and I can do whatever I want,” and

“You’re my woman, you do what I say.” In fact, she stated that “[a]s time

went on, he hit me for no reason at all,” and that he “would hit or kick me

whenever he felt like it.”

Nowhere in the record does the respondent recount her husband saying

anything relating to what he thought her political views to be, or that the

violence towards her was attributable to her actual or imputed beliefs.

Moreover, this is not a case where there is meaningful evidence that this

respondent held or evinced a political opinion, unless one assumes that the

common human desire not to be harmed or abused is in itself a “political

opinion.” The record before us simply does not indicate that the harm arose

in response to any objections made by the respondent to her husband’s domination over her. Nor does it suggest that his abusive behavior was dependent in any way on the views held by the respondent. Indeed, his senseless

actions started at the beginning of their marriage and continued whether or

not the respondent acquiesced in his demands. The record reflects that, once

having entered into this marriage, there was nothing the respondent could

have done or thought that would have spared her (or indeed would have

spared any other woman unfortunate enough to have married him) from the

violence he inflicted.

Nonetheless, the Immigration Judge found support for her conclusion

in the Ninth Circuit’s decision in Lazo-Majano v. INS, 813 F.2d 1432 (9th

Cir. 1987), overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th

Cir. 1996). In Lazo-Majano, the alien’s husband left El Salvador because

guerrillas sought him and the government distrusted him for his involvement in and resignation from a paramilitary group. Id. A Salvadoran military sergeant who persecuted the alien denounced her as a “subversive,”

even though that accusation was done cynically as a means to control the

alien better. The court ruled that the alien had suffered past persecution

because of the subversive status attributed to her by the sergeant. Id. We

understand this to be the holding of the case, and it is for this proposition

that the case has continued to be cited within the Ninth Circuit. E.g., MezaManay v. INS, 139 F.3d 759 (9th Cir. 1998); Lopez-Galarza v. INS, 99 F.3d

954 (9th Cir. 1996).

We nevertheless recognize that the conduct of the sergeant toward the

alien in Lazo-Majano paralleled in several respects the actions of the

respondent’s husband toward her here. In its decision, the court observed

that “if the situation is seen in its social context,” the sergeant was “asserting the political opinion that a man has a right to dominate and he has persecuted [the alien] to force her to accept this opinion without rebellion.”

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Lazo-Majano v. INS, supra, at 1435. The court further suggested that the

alien may be exposed to persecution from the sergeant because her flight

could be seen as the expression of an opinion to the contrary. We have not,

however, found a published Ninth Circuit case relying on this aspect of

Lazo-Majano subsequent to the Supreme Court’s ruling in INS v. EliasZacarias, supra, and we do not understand the “male domination” aspects

of Lazo-Majano to be its actual holding.

Further, under Elias-Zacarias, the victim also must offer some evidence, direct or circumstantial, that it was the victim’s political opinion that

motivated the persecutor. INS v. Elias-Zacarias, supra, at 483. The respondent’s husband, it seems, must have had some reason or reasons for treating

the respondent as he did. And it is possible that his own view of men and

women played a role in his brutality, as may have been the case with the

brutality that he himself experienced and witnessed. What we find lacking

in this respondent’s showing, however, is any meaningful evidence that her

husband’s behavior was influenced at all by his perception of the respondent’s opinion.

The respondent argues that, given the nature of domestic violence and

sexual assaults, her husband necessarily imputed to her the view that she

believed women should not be controlled and dominated by men. Even

accepting the premise that he might have believed that the respondent disagreed with his views of women, it does not necessarily follow that he

harmed the respondent because of those beliefs, rather than because of his

own personal or psychological makeup coupled with his troubled perception of her actions at times. See id. at 482; Sangha v. INS, 103 F.3d 1482,

1487 (9th Cir. 1997) (“[T]he petitioner must prove something more than

violence plus disparity of views.”).

The Immigration Judge found, and the respondent argues, that her husband imputed a hostile opinion to her from her acts of resistance to his violence, and that he then punished her for that hostile opinion. The Court’s

ruling in Elias-Zacarias, however, establishes that the existence of a political opinion held by a persecutor, and actions by a victim that conflict with

the demands of the persecutor, are not sufficient to require a conclusion that

the persecutor seeks to harm the victim because of a contrary political opinion attributed to the victim. Both the respondent’s argument and the “male

domination” reasoning of Lazo-Majano seem to us to be akin to the analysis which the Supreme Court later did not accept as conclusive of political

opinion persecution.

As we understand the respondent’s rationale, it would seem that virtually any victim of repeated violence who offers some resistance could qualify for asylum, particularly where the government did not control the

assailant. Under this approach, the perpetrator is presumed to impute to the

victim a political opinion, in opposition to the perpetrator’s authority, stemming simply from an act of resistance. Then, notwithstanding any other

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motivation for the original violence, the imputed political opinion becomes

the assumed basis for the infliction of more harm.

It is certainly logical and only human to presume that no victim of violence desires to be such a victim and will resist in some manner. But it is

another matter to presume that the perpetrator of the violence inflicts it

because the perpetrator believes the victim opposes either the abuse or the

authority of the abuser. We do not find that the second proposition necessarily follows from the first. Moreover, it seems to us that this approach

ignores the question of what motivated the abuse at the outset, and it necessarily assumes that the original motivation is no longer the basis, at least

not by itself, for the subsequent harm. We are unwilling to accept a string

of presumptions or assumptions as a substitute for our own assessment of

the evidence in this record, particularly when the reliability of these presumptions as genuine reflections of human behavior has not been established.

As for the record here, there has been no showing that the respondent’s

husband targeted any other women in Guatemala, even though we may reasonably presume that they, too, did not all share his view of male domination. The respondent was unable to set forth an accurate time frame for the

great majority of the incidents she described. We are thus unable in general to link the incidents to acts of resistance in a way that might tend to support the respondent’s theory. Moreover, the myriad situations in which the

abuse occurred and the various unsuccessful responses adopted by the

respondent point strongly away from it having a genesis in her husband’s

perception of the respondent’s political opinion. Put another way, it is difficult to conclude on the actual record before us that there is any “opinion”

the respondent could have held, or convinced her husband she held, that

would have prevented the abuse she experienced.

Thus, unlike the aliens in cases such as Lazo-Majano, Lopez-Galarza,

and Meza-Manay, the respondent here has failed to establish that her persecutor attributed to her a political view and then harmed her because of that

view.

B. Particular Social Group

1. Cognizableness

Initially, we find that “Guatemalan women who have been involved

intimately with Guatemalan male companions, who believe that women are

to live under male domination” is not a particular social group. Absent from

this group’s makeup is “a voluntary associational relationship” that is of

“central concern” in the Ninth Circuit. Li v. INS, supra, at 987 (rejecting as

a claimed social group Chinese citizens with low economic status); see also

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De Valle v. INS, supra, at 792 (rejecting as claimed social group “family

members of deserters”); Sanchez-Trujillo v. INS, supra, at 1572 (rejecting

as a claimed social group “young, working class males who have not served

in the military of El Salvador”).

Moreover, regardless of Ninth Circuit law, we find that the respondent’s

claimed social group fails under our own independent assessment of what

constitutes a qualifying social group. We find it questionable that the social

group adopted by the Immigration Judge appears to have been defined principally, if not exclusively, for purposes of this asylum case, and without

regard to the question of whether anyone in Guatemala perceives this group

to exist in any form whatsoever. The respondent fits within the proposed

group. But the group is defined largely in the abstract. It seems to bear little or no relation to the way in which Guatemalans might identify subdivisions within their own society or otherwise might perceive individuals

either to possess or to lack an important characteristic or trait. The proposed

group may satisfy the basic requirement of containing an immutable or fundamental individual characteristic. But, for the group to be viable for asylum purposes, we believe there must also be some showing of how the characteristic is understood in the alien’s society, such that we, in turn, may

understand that the potential persecutors in fact see persons sharing the

characteristic as warranting suppression or the infliction of harm.

Our administrative precedents do not require a voluntary associational

relationship as a social group attribute. But we have ruled that the term

“particular social group” is to be construed in keeping with the other four

statutory characteristics that are the focus of persecution: race, religion,

nationality, and political opinion. Matter of Acosta, supra. These other four

characteristics are ones that typically separate various factions within countries. They frequently are recognized groupings in a particular society. The

members of the group generally understand their own affiliation with the

grouping, as do other persons in the particular society.

In the present case, the respondent has shown that women living with

abusive partners face a variety of legal and practical problems in obtaining

protection or in leaving the abusive relationship. But the respondent has not

shown that “Guatemalan women who have been involved intimately with

Guatemalan male companions, who believe that women are to live under

male domination” is a group that is recognized and understood to be a societal faction, or is otherwise a recognized segment of the population, within

Guatemala. The respondent has shown neither that the victims of spouse

abuse view themselves as members of this group, nor, most importantly,

that their male oppressors see their victimized companions as part of this

group.

The lack of a showing in this respect makes it much less likely that we

will recognize the alleged group as a particular social group for asylum purposes, or that the respondent will be able to establish that it was her group

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characteristic which motivated her abuser’s actions. Indeed, if the alleged

persecutor is not even aware of the group’s existence, it becomes harder to

understand how the persecutor may have been motivated by the victim’s

“membership” in the group to inflict the harm on the victim.

The respondent’s showing fails in another respect, one that is noteworthy in terms of our ruling in Matter of Kasinga, supra. She has not

shown that spouse abuse is itself an important societal attribute, or, in

other words, that the characteristic of being abused is one that is important within Guatemalan society. The respondent has shown official tolerance of her husband’s cruelty toward her. But, for “social group” purposes, she has not shown that women are expected by society to be

abused, or that there are any adverse societal consequences to women or

their husbands if the women are not abused. While not determinative, the

prominence or importance of a characteristic within a society is another

factor bearing on whether we will recognize that factor as part of a “particular social group” under our refugee provisions. If a characteristic is

important in a given society, it is more likely that distinctions will be

drawn within that society between those who share and those who do not

share the characteristic.

Here, the respondent has proposed a social group definition that may

amount to a legally crafted description of some attributes of her tragic personal circumstances. It may also be true that this description fits many other

victims of spouse abuse.

In our opinion, however, the mere existence of shared descriptive characteristics is insufficient to qualify those possessing the common characteristics as members of a particular social group. The existence of shared

attributes is certainly relevant, and indeed important, to a “social group”

assessment. Our past case law points out the critical role that is played in

“social group” analysis by common characteristics which potential persecutors identify as a basis for the infliction of harm. Matter of Kasinga,

supra; Matter of H-, supra. But the social group concept would virtually

swallow the entire refugee definition if common characteristics, coupled

with a meaningful level of harm, were all that need be shown.

The starting point for “social group” analysis remains the existence

of an immutable or fundamental individual characteristic in accordance

with Matter of Acosta, supra. We never declared, however, that the starting point for assessing social group claims articulated in Acosta was also

the ending point. The factors we look to in this case, beyond Acosta’s

“immutableness” test, are not prerequisites, and we do not rule out the use

of additional considerations that may properly bear on whether a social

group should be recognized in an individual case. But these factors are

consistent with the operation of the other four grounds for asylum and are

therefore appropriate, in our judgment, for consideration in the “particular social group” context.

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On the record before us, we find that the respondent has not adequately established that we should recognize, under our law, the particular social

group identified by the Immigration Judge.2

2. Nexus

Further, we cannot agree with the Immigration Judge’s nexus analysis.

In analyzing “particular social group” claims, our decisions, as well as

those of the Ninth Circuit, in which this case arises, require that the persecution or well-founded fear of persecution be on account of, or, in other

words, because of, the alien’s membership in that particular social group.

See Li v. INS, supra; De Valle v. INS, supra; Sanchez-Trujillo v. INS, supra;

Matter of Kasinga, supra; Matter of H-, supra; Matter of Acosta, supra.

This is reinforced by the Supreme Court’s ruling in INS v. Elias-Zacarias,

supra, at 483.

In this case, even if we were to accept as a particular social group

“Guatemalan women who have been involved intimately with Guatemalan

male companions, who believe that women are to live under male domination,” the respondent has not established that her husband has targeted and

harmed the respondent because he perceived her to be a member of this particular social group. The record indicates that he has targeted only the

respondent. The respondent’s husband has not shown an interest in any

member of this group other than the respondent herself. The respondent

fails to show how other members of the group may be at risk of harm from

him. If group membership were the motivation behind his abuse, one would

expect to see some evidence of it manifested in actions toward other members of the same group. See Li v. INS, supra (holding that even if Chinese

citizens of low economic status did constitute a particular social group, the

petitioner did not establish that authorities targeted members of that group);

Sanchez-Trujillo v. INS, supra (finding that even if young, working class,

urban males in El Salvador was a particular social group, the alien failed to

demonstrate that the government singled out members of this group).

2

Other “social group” definitions potentially covering the respondent were suggested

below or in the appeal briefs, such as “Guatemalan women” and “battered spouses.” We need

not now address whether there are any circumstances under which the various alternative proposals might qualify as a “particular social group,” as each of them fails on this record under

the “on account of,” or nexus, requirement of the statute, for the reasons we identify below

with regard to the group adopted by the Immigration Judge.

These same “on account of” principles would cause us to part company with at least the

rationale expressed in several of the opinions by the English House of Lords in Islam (A.P.) v.

Secretary of State for the Home Dep’t, ___ App. Cas. ___ (Mar. 25, 1999), available in

‹http://www.parliament.the-stationery-office.co.uk/pa/ld9899/ldjudgmt/jd990325/ islam01.htm›.

We note, however, that those conjoined appeals arose in a different factual setting.

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The Immigration Judge’s nexus analysis fails to limit consistently the

source of persecution to the respondent’s husband. At one point, the

Immigration Judge seems to identify all Guatemalan males who abuse their

partners as the persecutors, but the record indicates that the respondent suffered and feared intimate violence only from her own husband. When the

Immigration Judge correctly identifies the husband as the persecutor whom

the Guatemalan Government failed to control, her nexus finding is both too

broad and too narrow. It is too broad in that he did not target all (or indeed

any other) Guatemalan women intimate with abusive Guatemalan men. It is

too narrow in that the record strongly indicates that he would have abused

any woman, regardless of nationality, to whom he was married.

Indeed, the record does not reflect that the respondent’s husband bore

any particular animosity toward women who were intimate with abusive

partners, women who had previously suffered abuse, or women who happened to have been born in, or were actually living in, Guatemala. There is

little doubt that the respondent’s spouse believed that married women

should be subservient to their own husbands. But beyond this, we have

scant information on how he personally viewed other married women in

Guatemala, let alone women in general. On the basis of this record, we perceive that the husband’s focus was on the respondent 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.

The respondent’s statements regarding her husband’s motivation also

undercut the nexus claims. He harmed her, when he was drunk and when he

was sober, for not getting an abortion, for his belief that she was seeing

other men, for not having her family get money for him, for not being able

to find something in the house, for leaving a cantina before him, for leaving

him, for reasons related to his mistreatment in the army, and “for no reason

at all.” Of all these apparent reasons for abuse, none was “on account of” a

protected ground, and the arbitrary nature of the attacks further suggests it

was not the respondent’s claimed social group characteristics that he sought

to overcome. The record indicates that there is nothing the respondent could

have done to have satisfied her husband and prevented further abuse. Her

own supposition is that he abused her because he was abused himself in the

military.

The respondent was not at particular risk of abuse from her husband

until she married him, at which point, given the nature of his focus, she

was in a “group” by herself of women presently married to that particular

man. Such a group, however, would fail to qualify as a “particular social

group” under the Act. See Sanchez-Trujillo v. INS, supra; Matter of

Acosta, supra.

The Immigration Judge nevertheless found, and the respondent argues

on appeal, that her various possible group memberships account for her

plight, in large measure because the social climate and the Government of

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Guatemala afford her no protection from her husband’s abuse. Societal attitudes and the concomitant effectiveness (or lack thereof) of governmental

intervention very well may have contributed to the ability of the respondent’s

husband to carry out his abusive actions over a period of many years. But this

argument takes us away from looking at the motivation of the husband and

focuses instead on the failure of the government to offer protection.

Focusing on societal attitudes and a particular government’s response

to the infliction of injury is frequently appropriate in the adjudication of

asylum cases. It is most warranted when the harm is being inflicted by elements within the government or by private organizations that target minority factions within a society. But governmental inaction is not a reliable

indicator of the motivations behind the actions of private parties. And this

is not a case in which it has been shown that the Government of Guatemala

encourages its male citizens to abuse its female citizens, nor in which the

Government has suddenly and unreasonably withdrawn protection from a

segment of the population in the expectation that a third party will inflict

harm and thereby indirectly achieve a governmental objective.

The record in this case reflects that the views of society and of many governmental institutions in Guatemala can result in the tolerance of spouse

abuse at levels we find appalling. But the record also shows that abusive marriages are not viewed as desirable, that spouse abuse is recognized as a problem, and that some measures have been pursued in an attempt to respond to

this acknowledged problem. In this context, we are not convinced that the

absence of an effective governmental reaction to the respondent’s abuse translates into a finding that her husband inflicted the abuse because she was a

member of a particular social group. The record does not support such a conclusion, as a matter of fact, when the husband’s own behavior is examined.

And Guatemala’s societal and governmental attitudes and actions do not warrant our declaring this to be the case as a matter of law.

The Immigration Judge’s decision relies heavily on the absence of

governmental protection in its finding that the respondent was targeted for

harm on account of her claimed group membership. The respondent takes

this even further on appeal, arguing that governments can be deemed

responsible for private acts of violence against women by virtue of the

failure to afford protection. She also contends that she should be considered a “refugee” simply because she is not adequately protected by her

own government.

We do not know whether enforcement measures would have deterred

the abusive behavior of the respondent’s husband in this case. But we do

know that spouse abuse takes place even in communities with strong

enforcement mechanisms. Varying levels of governmental tolerance of, or

vigorous enforcement measures against, abuse can reasonably be expected

to affect the incidence of spouse abuse within particular communities. It

does not necessarily follow, however, that antagonism toward a “particular

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social group” is the motivation for the harm that husbands inflict upon their

wives in those communities which afford little or no protection, even if certain societal attitudes may be seen as contributing to the absence of effective enforcement.

The adequacy of state protection is obviously an essential inquiry in

asylum cases. But its bearing on the “on account of” test for refugee status

depends on the facts of the case and the context in which it arises. In this

case, the independent actions of the respondent’s husband may have been

tolerated. But, as previously explained, this record does not show that his

actions represent desired behavior within Guatemala or that the Guatemalan

Government encourages domestic abuse.

Importantly, construing private acts of violence to be qualifying governmental persecution, by virtue of the inadequacy of protection, would

obviate, perhaps entirely, the “on account of” requirement in the statute. We

understand the “on account of” test to direct an inquiry into the motives of

the entity actually inflicting the harm. See INS v. Elias-Zacarias, supra.

Further, the adoption of such an approach would represent a fundamental

change in the analysis of refugee claims. We see no principled basis for

restricting such an approach to cases involving violence against women.

The absence of adequate governmental protection, it would seem, should

equally translate into refugee status for other categories of persons unable

to protect themselves.

A focus on the adequacy of governmental protection would also shift

the analysis in cases of refugee claims arising from civil war, as well as

any other circumstance in which a government lacked the ability effectively to police all segments of society. This is not to say that the outcome

of such an analysis would necessarily yield different results. The point,

however, is that the existing statutory formula for assessing refugee

claims would be altered. Instead of assessing the motivation of the actual

persecutor, we might, for example, be focusing on the motivation or

justification of the government for not intervening and affording real

protection.

We reject the approach advocated by the respondent in view of the

existing statutory language and the body of case law construing it.

Consequently, the respondent must show more than a lack of protection or

the existence of societal attitudes favoring male domination. She must make

a showing from which it is reasonable to conclude that her husband was

motivated to harm her, at least in part, by her asserted group membership.

In the end, we find that the respondent has failed to show a sufficient

nexus between her husband’s abuse of her and the particular social group

the Immigration Judge announced, or any of the other proffered groups.

3. The Kasinga Decision

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Our decision in Matter of Kasinga, supra, does not prescribe a different result. In that case, the alien belonged to the Tchamba-Kunsuntu tribe

in Togo in which young women normally underwent female genital mutilation (“FGM”) before the age of 15. Under tribal custom, the alien’s aunt and

husband planned to force her to submit to FGM before she was to be married. Following her escape from Togo, the Togolese police were looking for

her. The record included a letter from a cultural anthropologist indicating

that women from the Tchamba people probably would be expected to

undergo FGM prior to marriage. A Department of State report in the record

indicated that FGM was practiced by some Togo ethnic groups, that as

many as 50% of Togolese females may have been mutilated, and that violence against women in Togo occurs with little police intervention. We held

that FGM was persecution, that “young women of the Tchamba-Kunsuntu

Tribe who have not had FGM, as practiced by that tribe, and who oppose

the practice” constitute a particular social group, that the alien was a member of such a group, and that she possessed a well-founded fear of persecution on account of her membership in that group.

In contrast to our ruling in Matter of Kasinga, supra, the Immigration

Judge in the instant case has not articulated a viable social group. The

common characteristic of not having undergone FGM was one that was

identified by Kasinga’s tribe, and motivated both her family and the tribe to

enforce the practice on Kasinga and other young women. Indeed, the tribe

expected or required FGM of women prior to marriage, signifying the

importance of the practice within that tribal society. The record in Kasinga

indicated that African women faced threats or acts of violence or social

ostracization for either refusing the practice or attempting to protect female

children from FGM. Moreover, although the source of Kasinga’s fear of

physical harm was limited to her aunt and husband, she established that

FGM was so pervasive that her tribal society targeted “young women of the

Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that

tribe, and who oppose the practice.”

The respondent in this case has not demonstrated that domestic violence is as pervasive in Guatemala as FGM is among the TchambaKunsuntu Tribe, or, more importantly, that domestic violence is a practice

encouraged and viewed as societally important in Guatemala. She has not

shown that women are expected to undergo abuse from their husbands, or

that husbands who do not abuse their wives, or the nonabused wives themselves, face social ostracization or other threats to make them conform to a

societal expectation of abuse. While the respondent here found no source of

official protection in Guatemala, the young woman in Kasinga testified that

the police in Togo were looking for her and would return her to her family

to undergo FGM. Matter of Kasinga, supra, at 359.

We recognize that the respondent’s situation is similar to that in

Kasinga, in part, because the person actually inflicting the harm or feared

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harm is a family member of the victim. While the cases bear some similarities in this regard, we do not find this to be a factor that supports the claim

of group recognition. Rather, it is a factor to be overcome if the group is to

be accepted. In the context of asylum law, persecutors typically harbor animosities and act on those animosities toward many persons known to have

the “hated” characteristic. When action is directed toward but one individual, or toward a small number of close family members, it calls into question both the propriety of the group definition and the alleged group motivation of the persecutor.

Furthermore, we may assume for purposes of discussion that

“Guatemalan women who have been involved intimately with Guatemalan

male companions, who believe that women are to live under male domination” constitute a particular social group. But, the respondent has not shown

that Guatemalan males who believe in male domination and have been intimate with Guatemalan women actually target their intimate partners for

persecution because of the victims’ presumed group membership. The proposed social group represents a description of persons who may or may not

experience harm. But it fails, on this record, as an adequate explanation for

the surface, or even the more deep-rooted, factors that motivate the abusive

behavior.

4. The Dissent

We find the dissent’s analysis unconvincing, largely for the reasons we

have already set forth in arriving at our decision. We shall thus confine our

observations to the dissent’s nexus arguments.

As the dissent correctly recognizes, we have granted relief in asylum

cases where we have found it reasonable to believe that harm was inflicted,

at least in part, because of a protected ground. E.g., Matter of S-P-, 21 I&N

Dec. 486 (BIA 1996). The dissent believes that the respondent’s husband

abused her, at least in part, because of an actual or imputed political opinion or because of her membership in a social group. It draws this conclusion from the cultural and societal context in which the abuse occurred,

from literature indicating that domestic violence represents an exercise of

power and domination over women, from her husband’s view of her as his

property, from the egregious nature of the harm, and from the absence of a

legitimate motive for the abuse. We, on the other hand, do not find it reasonable to believe that an actual or imputed political opinion or social group

membership led even in part to the respondent’s abuse.

At the outset, the respondent never testified that she understood the

abuse to be motivated by her political opinion or membership in a group of

any description. Her husband never articulated such motivation, and she

does not seem to have perceived it independent of the legal arguments now

being advanced on her behalf. The dissent itself does not claim that either

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the respondent or her husband understood the abuse to be motivated, even

in part, by the respondent’s political opinion or social group membership.

In this context, the dissent’s arguments for a political or social group

motivation seem artificial. In our judgment, asylum law is not simply about

the construction of various presumptions and inferences for bringing inarguably atrocious human action within one of the five grounds for which

relief may be granted, particularly when those presumed or inferred motivations are undetected by both the abuser and the victim. For example, the

perpetrators and victims of persecution because of race, religion, and political opinion typically understand and can explain the societal hatreds that

lead to the harm or feared harm. We find it very difficult to accept the

proposition that a persecutor targets persons who qualify as refugees for

reasons that neither the persecutor nor the victims have been shown to

understand as playing any role in the persecution.

In Matter of S-P-, supra, for example, we found that it was reasonable

to believe that imputed political opinion played a role in the harm suffered

by a person captured during a military operation and suspected of being a

member of an armed opposition force in a civil war context. The political

aspects of the conflict itself were readily apparent, and the participants on

both sides well understood the conflict to have a significant political dimension. We were not required to presume the existence of a motivating factor

that escaped recognition by any of the parties to the civil war. Our inquiry

was simply to determine whether it was reasonable to believe that a known

motivating factor in the existing conflict had actually contributed to the particular prisoner’s torture.

In the case now before us, it simply has not been shown that political

opinion or social group membership can reasonably be understood as the

motivation behind the spouse abuse. Other factors, ranging from jealousy to

growing frustration with his own life to simple unchecked violence tied to

the inherent meanness of his personality, are among the explanations or

motivations that may reasonably be inferred on this record for the actions

of the respondent’s husband. For example, when the respondent resisted her

husband’s demands for sexual relations, he would accuse her of seeing

other men. Notably, he did not accuse her of harboring opinions hostile to

his own or of being part of an abhorrent group.

The dissent also relies on the impunity with which the respondent’s

husband acted as support for its “on account of” conclusions. In this

regard, it draws on the opinion of Lord Hoffman in Islam (A.P.) v.

App. Cas. (March 25, 1999),

Secretary of State for the Home Dep’t,

available in ‹http://www.parliament.the-stationery-office.co.uk/pa/ld9899/

ldjudgmt/jd990325/islamp1.htm›, which argues that a Jewish businessman attacked by an Aryan competitor in Nazi Germany would be a victim

of persecution on account of race because of the failure of the authorities

to provide protection, even though the competitor was personally moti926

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vated only by business rivalry. But the very point of this example was to

shift the focus away from the motivation of the entity causing the harm

and to focus instead on governmental discrimination as satisfying the causation or nexus element for refugee status. Indeed, it does not appear that

Lord Hoffman’s nexus argument would be any different if the business

competitor inflicting the harm had also been Jewish. The dissent’s argument, consequently, is a variant of the respondent’s claim that she should

be accorded refugee status simply because she was not adequately protected by her government. We are not persuaded by this argument in the

context of this case for the reasons we set forth earlier in addressing the

respondent’s contention.

We do agree with the dissent that the reasons set forth by the respondent’s husband obviously do not in any way justify the abuse. But we find

the lack of legitimate motives, an unconscionable level of harm, the escalation of the harm over time, and even the very incomprehensibleness of the

abuse to be an inadequate basis from which to infer a statutorily qualifying

motive. It is the respondent who bears the burden of proof. The dissent’s

approach, however, would seem effectively to shift the burden to the

Service, as it would presume the existence of a qualifying case arising from

serious harm and the absence of any apparently legitimate motive. We

understand such an approach to free an asylum applicant of the need to offer

evidence of motivation (as a qualifying motive would be presumed), and

instead to force the Service to offer evidence of a “legitimate” reason for the

infliction of the harm. In our judgment, it remains for the respondent to

establish an evidentiary record from which we may reasonably infer that a

qualifying motive led, at least in part, to the harm she suffered, and this she

has failed to do.

VII. CONCLUSION

In sum, we find that the respondent has been the victim of tragic and

severe spouse abuse. We further find that her husband’s motivation, to the

extent it can be ascertained, has varied; some abuse occurred because of his

warped perception of and reaction to her behavior, while some likely arose

out of psychological disorder, pure meanness, or no apparent reason at all.

Absent other evidence, we accept the respondent’s own assessment that the

foundations of the abuse she suffered lay in the abuse her husband had

experienced in his own life. We are not persuaded that the abuse occurred

because of her membership in a particular social group or because of an

actual or imputed political opinion. We therefore do not find the respondent

eligible for asylum, and consequently, she is ineligible for withholding of

deportation under section 243(h) of the Act, 8 U.S.C. § 1253(h) (1994). See

INS v. Cardoza-Fonseca, supra.

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The respondent in this case has been terribly abused and has a genuine

and reasonable fear of returning to Guatemala. Whether the district director

may, at his discretion, grant the respondent relief upon humanitarian

grounds—relief beyond the jurisdiction of the Immigration Judge and this

Board—is a matter the parties can explore outside the present proceedings.

We further note that Congress has legislated various forms of relief for

abused spouses and children. The issue of whether our asylum laws (or

some other legislative provision) should be amended to include additional

protection for abused women, such as this respondent, is a matter to be

addressed by Congress. In our judgment, however, Congress did not intend

the “social group” category to be an all-encompassing residual category for

persons facing genuine social ills that governments do not remedy. The

solution to the respondent’s plight does not lie in our asylum laws as they

are currently formulated.

VIII. DEPORTABILITY AND VOLUNTARY DEPARTURE

On the basis of the respondent’s admissions, the Immigration Judge

found the respondent deportable as an alien who entered without inspection.

This finding is not challenged on appeal. In its September 1996, post-hearing brief before the Immigration Judge, the Service expressed its view that

the respondent is statutorily eligible for voluntary departure and that it did

not object to a grant of that relief. Accordingly, we will grant the respondent

30 days’ voluntary departure. The respondent elected not to designate a

country of deportation. Guatemala will be specified as the country of deportation pursuant to the Immigration Judge’s determination at the December

7, 1995, hearing session.

Accordingly, the appeal will be sustained, and the respondent will be

granted voluntary departure.

ORDER: The appeal of the Immigration and Naturalization Service

is sustained and the Immigration Judge’s order of September 20, 1996, is

vacated.

FURTHER ORDER: In lieu of an order of deportation the respondent

is allowed to depart voluntarily, without expense to the Government, within 30 days from the date of this order or any extension beyond that time as

may be granted by the district director and under such conditions as he may

direct. In the event of the respondent’s failure so to depart, the respondent

shall be deported to Guatemala.

Board Member Lori Scialabba did not participate in the decision in this

case.

DISSENTING OPINION: John Guendelsberger, Board Member, in which

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Paul W. Schmidt, Chairman; Gustavo D. Villageliu, Lory Diana Rosenberg,

and Anthony C. Moscato, Board Members, joined

I respectfully dissent. I agree with the thorough and well-reasoned decision of the Immigration Judge that the respondent has demonstrated past

persecution and a well-founded fear of future persecution based on her

membership in a particular social group and upon her express and imputed

political opinion.1

I. ISSUES PRESENTED

This case presents two questions: (1) whether a woman trapped in a

long-term relationship with an abusive spouse, in a country in which such

abuse is tolerated by society and ignored by governmental officials, is a

member of a particular social group entitled to the protection of asylum law;

and, (2) whether the domestic abuse in the instant case was at least partially motivated by an actual or imputed political opinion.

II. OVERVIEW

This is not merely a case of domestic violence involving criminal conduct. The respondent’s husband engaged in a prolonged and persistent pattern of abuse designed to dominate the respondent and to overcome any

effort on her part to assert her independence or to resist his abuse. His mistreatment and persecution of her in private and in public was founded, as the

majority states, on his view that it was his right to treat his wife as “his

property to do as he pleased.” He acted with the knowledge that no one

would interfere. His horrific conduct, both initially and in response to her

opposition to it, was not that of an individual acting at variance with societal norms, but one who recognized that he was acting in accordance with

them.

The harm to the respondent occurred in the context of egregious governmental acquiescence. When the respondent sought the aid and assistance

of government officials and institutions, she was told that they could do

nothing for her. This is not a case in which the government tried, but failed,

to afford protection. Here the government made no effort and showed no

interest in protecting the respondent from her abusive spouse. Thus, when

the respondent went to the police or to the court to seek relief from threats,

1

The briefs of amici curiae, the Refugee Law Center and the International Human

Rights/Migration Projects, and the respondent’s brief to the Board also provide persuasive

arguments in support of the Immigration Judge’s decision.

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physical violence, broken bones, rape, and sodomy inflicted by her husband, Guatemalan police officials and the judge refused to intervene.

The record confirms the Immigration Judge’s finding that in Guatemala

there are “institutional biases against women that prevent female victims of

domestic violence from receiving protection from their male companions or

spouses.” The Immigration Judge found that these institutional biases

“appear to stem from a pervasive belief, common in patriarchal societies,

that a man should be able to control a wife or female companion by any

means he sees fit: including rape, torture, and beatings.” Because of the

principle that men should control women with whom they are intimately

involved and the belief that domestic abuse is a family matter in which others must not intervene, women are not protected when they complain of

domestic violence, and men who inflict such violence are not prosecuted.

The respondent’s husband told her that because of his connections to the

miliary, the police and courts would not support her against him, and consistent with his threats, when she sought governmental intervention, her

pleas fell on deaf ears and she was told she could not divorce him because

her husband’s consent was needed. No one, neither society nor the government, was able or willing to protect the respondent from her husband.

The majority’s insistence that the respondent’s husband was not motivated to harm her, “even in part, because of her membership in a particular

social group or because of an actual or imputed political opinion,” cannot

be reconciled either with the reality of the respondent’s situation in

Guatemala, or with United States law. Matter of R-A-, 22 I&N Dec. 3403,

at 2 (BIA 1999). It is at odds with our own precedent, federal court authority, and Department of Justice policy pronouncements, which effectuate our

obligation to provide surrogate protection for persons who fear harm inflicted because of some fundamental aspect of their identity.

III. PERSECUTION ON ACCOUNT OF MEMBERSHIP

IN A PARTICULAR SOCIAL GROUP

The respondent has been harmed in the past and possesses a wellfounded fear of harm in the future “on account of . . . membership in a particular social group.” Section 101(a)(42)(A) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1994). The majority proposes

a laundry list of hurdles to be cleared before she may demonstrate membership in a particular social group. This stringent approach to asylum law

disregards decisions of tribunals, both domestic and foreign, which extend

asylum protection to women who flee human rights abuses within their own

homes. It also ignores international human rights developments and the

guiding principle of the Charter of the United Nations, the Universal

Declaration of Human Rights, and the 1951 Convention Relating to the

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Status of Refugees, “that human beings shall enjoy fundamental rights and

freedoms without discrimination.” United Nations Convention Relating to

the Status of Refugees, preamble, adopted July 28, 1951, 189 U.N.T.S. 150

(entered into force Apr. 22, 1954) (“Convention”). The respondent has a

fundamental right to protection from abuse based on gender. When domestic abuse based on gender occurs, as here, with state acquiescence, the

respondent should be afforded the protection of asylum law.

A. The Immigration Judge’s Finding of a Particular Social

Group is Consistent With Board Precedent

The Immigration Judge found that the respondent was a member of a

social group comprised of “Guatemalan women, who have been involved

intimately with Guatemalan male companions, who believe that women are

to live under male domination.” In so finding, she carefully analyzed the

facts of the case and correctly applied the law as set forth in Matter of

Acosta, 19 I&N Dec. 211 (BIA 1985), modified on other grounds, Matter

of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), and, most recently, in Matter

of Kasinga, 21 I&N Dec. 357 (BIA 1996).

We first set forth the requirements for a particular social group in

Matter of Acosta, supra. There we interpreted the phrase “membership in

a particular social group” in a manner consistent with the other enumerated grounds for asylum. As each of the other grounds (race, religion,

nationality, and political opinion) refers to a common, immutable characteristic which a person either cannot change, or should not be required to

change, because it is “fundamental to individual identity or conscience,”

we determined that the phrase “particular social group” also should be

defined by this type of characteristic. Id. at 233. The shared immutable

characteristic “might be an innate one such as sex, color, or kinship ties,

or in some circumstances it might be a shared past experience such as

former military leadership or land ownership.” Id. We concluded that

such determinations must be made on a case-by-case basis. Applying this

test to the record in Acosta, we found that members of a taxi cooperative

and persons engaged in the transportation industry of El Salvador did not

constitute a particular social group, because the characteristics defining

the group were not immutable. Members of the group could avoid the

threats from the guerrillas either by changing jobs or by cooperating in

work stoppages. Id. at 234.

Under Acosta, then, immutability is of the essence. In a number of decisions, we have applied the Acosta immutability standard to recognize particular social groups. In each case, we recognized an immutable trait or past

experience shared by the members of the social group. The shared past

experience of former members of the national police force in El Salvador,

for example, has been recognized as an immutable characteristic which

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makes such individuals members of a particular social group for asylum

purposes. Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). Similarly, gay

men and lesbians in Cuba have been found to constitute a particular social

group. Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990). Members

of the Darood clan and Marehan subclan in Somalia have been found to

share immutable characteristics required for social group recognition,

Matter of H-, 22 I&N Dec. 337 (BIA 1996), as have Filipinos of Chinese

ancestry, Matter of V-T-S-, Interim Decision 3308 (BIA 1997).

In Matter of Kasinga, supra, a case involving a young Togolese woman

who fled her country to avoid the practice of female genital mutilation practiced by her tribe, we considered a social group partly defined by gender.

We found that the applicant had a well-founded fear of persecution based

on her membership in the social group of young women of the TchambaKunsuntu tribe who have not been mutilated and who oppose the practice.

In so holding, we ruled that Ms. Kasinga’s gender and ethnic affiliation

were characteristics she could not change, and the characteristic of having

intact genitalia was so fundamental that she should not be required to

change it. Id. at 366.

The Immigration Judge decided the case before her consistent with our

precedent decision in Kasinga. In both cases, the social group was defined

by reference to gender in combination with one or more additional factors.

In Kasinga, the social group was defined by gender, ethnic affiliation, and

opposition to female genital mutilation (“FGM”). In the instant case, the

social group is based on gender, relationship to an abusive partner, and

opposition to domestic violence. As the Immigration Judge below correctly

observed, the respondent’s relationship to, and association with, her husband is something she cannot change. It is an immutable characteristic

under the Acosta guidelines, which we affirmed in Kasinga. Id. at 366.

There are a number of other striking similarities between the instant

case and Kasinga. Both cases involve a form of persecution inflicted by private parties upon family members. In both cases, the victims opposed and

resisted a practice which was ingrained in the culture, broadly sanctioned

by the community, and unprotected by the state. In both cases, the overarching societal objective underlying the cultural norm was the assurance of

male domination. Kasinga lost the protection of her father when he died;

Kasinga experienced strong indicators (i.e., her forced marriage to a polygamist) that she would be forced to undergo the procedure in the future; and

Kasinga was unable to escape her own ethnicity and live within another

tribal society within Togo. See Matter of Kasinga, supra. In the instant case,

the respondent lost the protection of her family when, at the age of 15, she

married her would-be persecutor; the harm suffered by the respondent in the

past is a clear indicator that the harm would continue in the future, and perhaps become more severe; and, finally, the respondent was unable, within

the borders of Guatemala, to obtain governmental protection from her per932

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secutor.

In attempting to distinguish this case from Kasinga, the majority contends that domestic violence in Guatemala, unlike FGM in Togo, is not so

pervasive or “societally important” that the respondent will face “social

ostracization” for refusing to submit to the harm. The majority’s distinction

is flawed. The facts of Kasinga did not suggest that Kasinga would face

severe social ostracization for her refusal to submit to FGM; rather, as a

member of a social group defined by her unique circumstances, she faced

harm only because she lost the protection of her father. In Kasinga, a family member, Kasinga’s aunt, targeted her after the death of her father who,

as the primary authority figure in her family, had previously protected her

from FGM. In other words, the practice was not so pervasive in Togo that

her father, also a member of the ethnic group which had targeted her, had

been unable to identify the practice as harmful. Some persons within Togo

viewed FGM as an acceptable practice; other persons, even those within the

same ethnic group (such as Kasinga’s father, mother, and sister), did not.

We extended asylum protection to Kasinga not because she faced societal

ostracization, but because she demonstrated a well-founded fear of harm on

account of her membership in a group composed of persons sharing her specific circumstances.

In the end, there are no meaningful distinctions that justify recognizing

the social group claim in Kasinga while refusing to recognize such a social

group claim in the instant case. The gender-based characteristics shared by

the members of each group are immutable, the form of abuse resisted in

both cases was considered culturally normative and was broadly sanctioned

by the community, and the persecution imposed occurred without possibility of state protection.

B. The Instant Case Involves More Than Mere

Membership in a Statistical Group

The finding of the United States Court of Appeals for the Ninth Circuit

in Sanchez-Trujillo v. INS, 801 F.2d 1571, 1573 (9th Cir. 1986), that

“young, urban, working class males of military age who had never served

in the military or otherwise expressed support for the government of El

Salvador” were not members of a particular social group because they

lacked a “voluntary associational relationship,” does not compel a different

conclusion.

First, the instant case does not involve the type of all-encompassing

grouping posited in Sanchez-Trujillo, which arose in the context of countrywide civil strife and anarchy. Here, the circumstances of group members

who share the immutable traits of gender and a relationship to an abusive

partner are distinct from those of other members of society who may fear

general civil strife, criminal assault or other social disorder.

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Second, the considerations of “close affiliation,” “common impulse or

interest,” and “voluntary associational relationship” in Sanchez-Trujillo

were posited in response to a proposed social group of young men who

were unable to demonstrate that their common fears were related to any

shared risk factors. The court, noting the speculative nature of the claim,

drew a comparison with political opinion cases, and explicitly stated that

“what constitutes a ‘particular social group,’ as opposed to a mere demographic division of the population, must be independently determined

through the application of the statutory term in a particular context.” Id. at

1576 n.7 (emphasis added). This approach does not consist of a mechanical

application of the Sanchez-Trujillo “voluntariness” inquiry, but an independent contextual determination.

Indeed, where warranted (i.e., in cases where the basis for the asylum

claim is “mere membership” in a sweeping demographic wedge of the general population), the court has inquired into the “voluntariness” of the association with other members of that group.2 See, e.g., Li v. INS, 92 F.3d 985,

987 (9th Cir. 1996) (rejecting a claim that Chinese citizens of low economic status constitute a particular social group); De Valle v. INS, 901 F.2d 787,

792 (9th Cir. 1990) (rejecting a group described as “family members of

deserters” from the Salvadoran Army where neither past harm nor an individual targeting of the applicant or her family member had been demonstrated). In contrast, the court has analyzed other social group claims without reference to “voluntariness.” See, e.g., Velarde v. INS, 140 F.3d 1305

(9th Cir. 1998) (remanding the case to the Board for consideration of a

claim based on status as a former presidential bodyguard on the basis of

either imputed political opinion or membership in a particular social

group); Aruta v. INS, 80 F.3d 1389, 1395 (9th Cir. 1996) (rejecting claim

for nexus reasons, but recognizing a family member of a former military

police officer as a cognizable social group under the Act).

In addition, in the intervening decade since Sanchez-Trujillo was decided, most courts outside the Ninth Circuit have applied Acosta’s immutability standard, rather than a “voluntariness” standard, in deciding whether a

group is cognizable under the Act. See, e.g., Lwin v. INS, 144 F.3d 505, 51112 (7th Cir. 1998) (adopting Acosta standard in accepting a group described

2

Likewise, in political opinion cases where a claimant does not demonstrate individualized harm, the Ninth Circuit has regularly imposed a heightened evidentiary burden. See, e.g.,

Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995) (“Particularized individual persecution, not

merely conditions of discrimination in the country of origin, must be shown before asylum

will be granted.”); Kotasz v. INS, 31 F.3d 847, 852 (9th Cir. 1994) (discussing the requirement

that an alien demonstrate that he faces a particularized threat of persecution using “various

formulations”); Arteaga v. INS, 836 F.2d 1227, 1232 n.9 (9th Cir. 1988) (distinguishing social

group claims based on “membership” from those claims involving “individual persecution”).

That the respondent’s harm is particularized is beyond doubt for the instant case.

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as “parents of Burmese student dissidents”). The First and Third Circuits

have also endorsed the immutability/fundamental identity approach in

determining what constitutes a particular social group. See Fatin v. INS, 12

F.3d 1233, 1239-41 (3d Cir. 1993) (observing that an Iranian woman who

refused to conform to the Iranian Government’s gender-specific laws and

social norms may well satisfy the Acosta definition “simply because she

[was] a woman”); Ananeh-Firempong v. INS, 766 F.2d 621 (1st Cir. 1985)

(noting that individuals associated with the former government of Ghana

could comprise a social group because their fears arose from characteristics

beyond their power to change); see also Meguenine v. INS, 139 F.3d 25, 28

n.2 (1st Cir. 1998) (approving a social group definition that requires “some

immutable trait (such as an ethnic group) or a mutable trait which a member of that group should not, in good conscience, be required to change

(such as a religious adherent’s beliefs)”).

Although the Eighth Circuit Court of Appeals acknowledged the

Sanchez-Trujillo approach in Safaie v. INS, 25 F.3d 636, 640 (8th Cir.

1994), concluding that a group comprised of all Iranian women was too

broad to constitute a particular social group, the court noted its agreement

with the Third Circuit’s observation in Fatin v. INS, supra, in stating that

“a group of women, who refuse to conform and whose opposition is so

profound that they would choose to suffer the severe consequences of

noncompliance,” may well qualify as a particular social group. See also

Fisher v. INS, 79 F.3d 955, 966 (9th Cir. 1996) (Canby, J., concurring)

(noting that it remains an open question in the Ninth Circuit “whether persecution of women because they are women is a ground for asylum under

the Act”).

Social groups may be defined more or less broadly depending upon the

level of generality of the defining characteristics. In the instant case, the

Immigration Judge used a fairly precise and narrow focus. She could have

legitimately broadened the perspective to include all Guatemalan women

or, possibly, all married Guatemalan women as the particular social group.

See, in this regard, the discussion in Islam (A.P.) v. Secretary of State for the

Home Dep’t, ___ App. Cas. ___ (Mar. 25, 1999), available in

‹http://www.parliament.the-stationery-office.co.uk/pa/ld9899/ldjudgmt/

jd990325/islam01.htm›, (opinion of Lord Steyn, recognizing a particular

social group consisting of all Pakistani women and, in the alternative, a particular social group consisting of women suspected by their husbands of

adultery who would be unprotected by the Government of Pakistan).

Whether defined broadly or narrowly, an independent contextual evaluation

of the respondent’s claim in the instant case demonstrates a particular social

group.

C. Gender-Related Social Group Claims, Like Those Involving

Race, Religion, Nationality, and Political Opinion,

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Implicate Fundamental Human Rights

The international community has recognized that gender-based violence, such as domestic violence, is not merely a random crime or a private

matter; rather, such violence is a violation of fundamental human rights. In

recognition of the special issues confronting female victims of violence,

international bodies have responded accordingly. See, e.g., Declaration on

the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. GAOR,

48th Sess., Agenda Item 111, U.N. Doc. A/Res/48/104 (1994) (recognizing

violence against women as human rights violation); Conclusions on the

International Protection of Refugees, U.N. High Commissioner for

Refugees, 36th Sess., No. 39(k) (1985) (recognizing that women in certain

situations qualify for asylum based on membership in gender-based social

groups).3

Domestic bodies have also responded. The Department of Justice has

addressed asylum claims involving violence against women in guidelines

promulgated in 1995. See Phyllis Coven, U.S. Dep’t of Justice,

Considerations for Asylum Officers Adjudicating Claims from Women

(1995) (“DOJ Guidelines”). The DOJ Guidelines announce the principle

that “women’s rights are human rights, and women’s rights are universal.”

Id. at 2. They explicitly state that “rape . . . sexual abuse and domestic violence, infanticide and genital mutilation are forms of mistreatment primarily directed at girls and women and they may serve as evidence of past persecution on account of one or more of the five grounds.” Id. at 4. The DOJ

Guidelines advise that claims to asylum should be analyzed against the

background of the fundamental purpose of refugee law: to provide surrogate international protection where there is a fundamental breakdown in

state protection. The DOJ Guidelines go on to state that domestic violence

exemplifies just such a breakdown:

[T]his principle becomes crucial where the applicant alleges private actions—such as

domestic violence—that the state will not protect against. In such situations, the officer must explore the extent to which the government can or does offer protection or

redress resulting in serious human rights violations tied to civil and political status.

3

The Convention on the Elimination of All Forms of Discrimination Against Women,

G.A. Res. 34/180, U.N. GAOR, 34th Sess., Agenda Item 75, U.N. Doc. A/Res/34/180 (1980),

prohibits discrimination against women and requires states to take affirmative steps to eliminate discriminatory treatment of women by both state and private actors. The Declaration on

the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. GAOR, 48th Sess.,

Agenda Item 111, U.N. Doc. A/Res/48/104 (1994), recognizes violence against women, in

both public and private life, as both a per se violation of human rights and as an impediment

to the enjoyment by women of other human rights and fundamental freedoms, and specifically condemns domestic violence as a violation of human rights.

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DOJ Guidelines, supra, at 16 (emphasis added). The DOJ Guidelines

explicitly state that “the evaluation of gender-based claims must be viewed

within the framework provided by existing international human rights

instruments and the interpretation of those instruments by international

organizations.” Id. These statements are persuasive evidence that our asylum laws, as they are currently formulated, provide a sound basis for providing protection to this respondent.

Canada has promulgated similar guidelines. See Immigration and

Refugee Board of Canada, Guideline 4: Women Refugee Claimants Fearing

Gender-Related Persecution: Update 3 (1996). Moreover, Canadian appellate courts have extended protection to a victim of domestic violence on the

basis of her membership in a particular social group. In Mayers v. Canada,

97 D.L.R.4th 729 (C.A. 1992), the Canadian Court of Appeals recognized

a social group defined as “Trinidadian women subject to wife abuse.” In

overturning the decision by the Refugee Division, the court emphasized the

need to look to “foreign jurisprudence and learned commentary” in order to

construe the phrase “membership in a particular social group,” and it cited

scholarly work critical of the Sanchez-Trujillo court’s failure to look to

principles of international law.

More recently, in conjoined appeals involving women seeking asylum

protection in the United Kingdom for domestic violence in Pakistan, the

House of Lords found “women in Pakistan” to constitute a particular social

group under the Convention’s refugee definition, Islam (A.P.) v. Secretary of

State for the Home Dep’t, supra. Lord Steyn found “women in Pakistan” to

be a “logical application of the seminal reasoning” of Acosta. Lord

Hoffman recognized the importance of context in deciding whether a social

group has been identified: “While persecutory conduct cannot define the

social group, the actions of the persecutors may serve to identify or even

cause the creation of a particular social group.” Id. Citing the example of a

Jew whose business was destroyed by a competitor in Nazi Germany, Lord

Hoffman recognized that a persecutor’s knowledge that he could act with

impunity “for reasons of” (i.e., “on account of”) his victim’s religion went

to the heart of the analysis of why the harm occurred. Id.

D. The Respondent Was Harmed and Has a Well-Founded

Fear of Harm on Account of Membership in a

Particular Social Group

Once a particular social group has been recognized, the asylum applicant must present at least “some evidence” of motive on the part of the

persecutor, either direct or circumstantial, from which it is reasonable to

believe that the harm was motivated, at least in part, by an actual or imputed protected ground. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992);

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Ratnam v. INS, 154 F.3d 990 (9th Cir. 1998); Singh v. Ilchert, 63 F.3d

1501 (9th Cir. 1995) (finding that persecutory conduct may have more

than one motive); Matter of S-P-, 21 I&N Dec. 486 (BIA 1996). In identifying persecutorial motive, a number of factors may be taken into consideration. Matter of S-P-, supra.

First, to assess motivation, it is appropriate to consider the factual circumstances surrounding the violence. The factual record reflects quite clearly that the severe beatings were directed at the respondent by her husband to

dominate and subdue her, precisely because of her gender, as he inflicted his

harm directly on her vagina, sought to abort her pregnancy, and raped her.

Second, the very incomprehensibleness of the husband’s motives supports the respondent’s claim that the harm is “on account of” a protected

ground. This is not a case of simple assault. Nor is this a case where the factors motivating the harm arguably are limited only to some comprehensible

criminal motive. Cf. Matter of V-T-S-, supra (holding that evidence that perpetrators were motivated by their victim’s wealth, in the absence of evidence to suggest other motivations, will not support a finding of persecution

within the meaning of the Act). Rather, this is a case where the respondent’s

husband treated her merely as his property, to do with as he pleased. Under

these circumstances, to place undue emphasis on the respondent’s explanations for her husband’s motives misses the obvious point that no good reason could exist for such behavior. See, e.g., Sangha v. INS, 103 F.3d 1482,

1490 (9th Cir. 1997); Nasseri v. Moschorak, 34 F.3d 723, 730 (9th Cir.

1994) (finding that even if the persecutors were ignorant of their victim’s

specific views and activities, “[i]t is difficult to imagine any other reason

why the mujahidin would have abducted her, beat her, threatened her with

a gun, and questioned her about her political contacts”), overruled on other

grounds by Fisher v. INS, 79 F.3d 955 (1996).

Illegitimate motives can give rise to an inference that the harm has

occurred on account of a statutorily protected characteristic which, in this

case, is the respondent’s membership in a particular social group and her

actual or imputed political opinion. See Rodriguez-Roman v. INS, 98 F.3d

416, 419 (9th Cir. 1996). In fact, in the political opinion context, police

investigations which are “part of a pattern of political suppression” give

rise to an inference that harm has occurred on account of a protected characteristic, despite the claimed legitimate prosecutorial function of these

government agents. Ratnam v. INS, supra; Singh v. Ilchert, supra, at 1508;

see also Maldonado-Cruz v. INS, 883 F.2d 788 (9th Cir. 1989), rev’g

Matter of Maldonado-Cruz, 19 I&N Dec. 509 (BIA 1988); Blanco-Lopez

v. INS, 858 F.2d 531 (9th Cir. 1988). Thus, the illegitimacy of a persecutor’s motives has the opposite effect of that suggested by the majority. The

record reflects, as it did in Matter of Kasinga, supra, that “no legitimate

reason” exists for the severe harm inflicted upon the respondent. See id.

at 15.

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Third, we should attempt to identify why such horrific violence

occurs at all. In Kasinga, we determined that FGM exists as a means of

controlling women’s sexuality. So too does domestic violence exist as a

means by which men may systematically destroy the power of women, a

form of violence rooted in the economic, social, and cultural subordination of women. See Rhonda Copelon, Recognizing the Egregious in the

Everyday: Domestic Violence as Torture, 25 Colum. Hum. Rts. L. Rev.

291, 303-06 (1994). The fundamental purpose of domestic violence is to

punish, humiliate, and exercise power over the victim on account of her

gender:

At its most complex, domestic violence exists as a powerful tool of oppression.

Violence against women in general, and domestic violence in particular, serve as

essential components in societies which oppress women, since violence against

women not only derives from but also sustains the dominant gender stereotypes and is

used to control women in the one space traditionally dominated by women, the home.

Report of the Committee on the Elimination of Discrimination Against

Women, U.N. Comm. on the Elimination of Discrimination Against

Women, 47th Sess., Supp. No. 38, para. 26, at 8, U.N. Doc. A/47/38 (1992).

Moreover, it is well established in the record before us that Guatemalan

society is especially oppressive of women generally. The materials submitted reveal that extreme patriarchal notions are firmly entrenched in

Guatemalan society.

Finally, as has been advanced by the House of Lords in Islam (A.P.) v.

Secretary of State for the Home Dep’t, supra, the level of impunity with

which a persecutor acts is relevant to an “on account of” determination.

Like the persecutor who targets the Jewish shopkeeper because he knows he

can act with impunity owing to his victim’s religion, the respondent’s husband knows he can commit his atrocities with impunity because of the

respondent’s gender and their relationship. The respondent testified that her

husband repeatedly expressed that it would be “useless” for her to contact

the authorities, especially given his connections with members of the

police. The respondent’s husband was not a simple criminal, acting outside

societal norms; rather, he knew that, as a woman subject to his subordination, the respondent would receive no protection from the authorities if she

resisted his abuse and persecution.

It is reasonable to believe, on the basis of the record before us, that the

husband was motivated, at least in part, “on account of” the respondent’s

membership in a particular social group that is defined by her gender, her

relationship to him, and her opposition to domestic violence. See INS v.

Elias-Zacarias, supra; Ratnam v. INS, supra; Singh v. Ilchert, supra;

Matter of S-P-, supra; Matter of Kasinga, supra.

IV. PERSECUTION ON ACCOUNT OF ACTUAL OR

IMPUTED OPINION 939

OPPOSING DOMESTIC

Interim Decision #3403

ABUSE AND VIOLENCE AGAINST WOMEN

Although they represent distinct bases for asylum and withholding of

deportation, claims of persecution inflicted on account of membership in a

particular social group and of persecution inflicted on account of actual or

imputed political opinion may share certain attributes. Maryellen Fullerton,

A Comparative Look at Refugee Status Based on Persecution due to

Membership in a Particular Social Group, 26 Cornell Int’l L.J. 505, 562

(1993). One significant factor that is essential to both constructions is that

of the persecutor’s motive, or nexus. In addition, the victim’s implicit or

explicit opposition or resistance to the persecution may be a factor common

to both categories. See Matter of Kasinga, supra.

Opposition to male domination and violence against women, and support for gender equity, constitutes a political opinion. See Fatin v. INS,

supra, at 1242 (acknowledging that there is “little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes”).

Congress’ enactment of the Violence Against Women Act of 1994, 42

U.S.C. § 13981 (1994) (“VAWA”), which addresses crimes of violence

“due, at least in part, to an animus based on the victim’s gender,” reflects a

political point of view that finds domestic violence abhorrent and intolerable. 42 U.S.C. § 13981(d)(1); see also section 240A(b)(2) of the Act, 8

U.S.C. 1229b(b)(2) (Supp. II 1996) (providing cancellation of removal for

aliens in the United States who are battered by a permanent resident or

United States citizen spouse). Such opposition is not restricted to those who

have not been victims of domestic violence, but constitutes a political opinion that may also be held by victims of domestic violence themselves. Both

the respondent’s status as a battered spouse in an intimate relationship with

a man who imposes such domination and her actual or perceived opinion

opposing domestic violence trigger continuing abuse from the persecutor

who seeks to dominate her.

A. Resistance to Domestic Violence As an

Actual or Imputed Political Opinion

Since the Supreme Court’s decision in INS v. Elias-Zacarias, supra, asylum eligibility based on political opinion has turned on whether the persecution was inflicted on account of “the political opinions of the victims.”

Sangha v. INS, supra, at 1488. The Ninth Circuit recently held unequivocally that “[u]nder our case law, and unchanged by Elias-Zacarias, an

applicant can establish his political opinion on the basis of his own affirmative political views, his political neutrality, or a political opinion imputed to him by his persecutors.” Id. (emphasis added). It is similarly well

established that “[n]on-governmental groups need not file articles of incorporation before they can be capable of persecution.” Korablina v. INS, 158

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F.3d 1038, 1044 (9th Cir. 1998). Moreover, “a single isolated incident may

not ‘rise to the level of persecution, [but] the cumulative effect of several

incidents may constitute persecution.’” Id. (quoting Sangha v. INS, supra,

at 1487).

In order to establish her political opinion, an asylum-seeker may testify about her political beliefs, Rodriguez-Roman v. INS, supra, at 419, or

provide evidence of her past activities, Gomez-Saballos v. INS, 79 F.3d 912,

917 (9th Cir. 1996). As the Ninth Circuit reiterated in Meza-Menay v. INS,

139 F.3d 759, 763 (9th Cir. 1998), “[A]n asylum petitioner may hold a political opinion within the meaning of the INA even if the petitioner did not

participate in organized political activities.” See also Lazo-Majano v. INS,

813 F.2d 1432, 1435 (9th Cir. 1987) (finding that a belief that “the Armed

Force [was] responsible for lawlessness, rape, torture and murder,” constituted a political opinion, even though the woman who held that belief did

not participate in politics), overruled on other grounds by Fisher v. INS,

supra. The respondent’s political opinion opposing male domination and

domestic violence imposed upon her by her husband is clearly stated in the

record—both in her statements and her actions. As he persisted in subjecting her to persecution that would affirm his dominance over her, she resisted him, tried to flee, sought governmental intervention, and filed legal

actions against him.

The respondent may, in addition, establish a “political opinion” by

demonstrating that such an opinion has been attributed to her by her persecutors. See INS v. Elias-Zacarias, supra, at 482; Canas-Segovia v. INS, 970

F.2d 599, 601-02 (9th Cir. 1992); see also Matter of S-P-, supra. Opposition

to male domination and violence against women may be imputed to a victim of domestic violence who protests, resists, or seeks to escape such domination and violence. See, e.g., Lazo-Majano v. INS, supra. Such a perception, whether actual or simply imputed, is a motivator for further violence

and abuse. See Shirazi-Parsa v. INS, 14 F.3d 1424, 1430 (9th Cir. 1994)

(stating that it is enough that the regime “‘falsely attributes an opinion to the

victim, and then persecutes the victim because of that mistaken belief about

the victim’s views’” (quoting Canas-Segovia v. INS, supra, at 602)); LazoMajano v. INS, supra, at 1446. In response to a victim’s actual or perceived

opposition, the abuser who inflicts such violence may inflict more violence

in an effort to reassert what he considers his rightful power and control over

the victim. Lazo-Majano v. INS, supra; see also Campos-Sanchez v. INS,

164 F.3d 448, 449 (9th Cir. 1999).

In establishing an imputed political opinion, the focus of inquiry turns

away from the views of the victim to the views of the persecutor. Sangha v.

INS, supra, at 1489. As the Ninth Circuit makes clear, “If the persecutor

attributed a political opinion to the victim, and acted upon the attribution,

this imputed view becomes the applicant’s political opinion as required

under the Act.” Id.; see also Nasseri v. Moschorak, supra, at 730 (holding

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that “regardless of how her attackers came to view her as a threat [to the

fundamentalist cause], it is clear that they took action against her on

account of opinions they imputed to her . . . [and] are likely to harm her in

the future because of political opinions they believe she possesses”).

Such imputation may be reflected when one party to a conflict insists

that his victim is aligned with the other side. See, e.g., Singh v. Ilchert,

supra, at 1509; Maldonado-Cruz v. INS, supra, at 792. Or, the victim may

have publicly expressed political views which could easily have been

known to his persecutors. See Nasseri v. Moschorak, supra, at 729-30.

Finally, the Ninth Circuit has acknowledged that there exists an adequate

nexus between the harm imposed and a protected ground when there is no

other logical reason for the persecution. Each of these considerations is consistent with the circumstances that exist here.

B. Evaluation of the Harm Suffered by the

Respondent on Account of Political Opinion

The notion that the “heinous abuse” suffered by the respondent, who

opposed her husband’s abuse, challenged his dominance, attempted to leave

him, and sought relief from the government, was only personal and does not

constitute anything more than illegitimate criminal conduct unprotected

under the Act is unacceptable. See Nasseri v. Moschorak, supra, at 729-30;

Matter of S-P-, supra. This type of differentiation between the supposedly

more private forms of persecution, typically suffered by women, and the

more public forms of persecution, typically suffered by men, is exactly the

type of outdated and improper distinction that the DOJ Guidelines were

intended to overcome. See Kristin E. Kandt, United States Asylum Law:

Recognizing Persecution Based on Gender Using Canada as a

Comparison, 9 Geo. Immigr. L.J. 137, 145 (1995); see also Nancy Kelly,

Gender-Related Persecution: Assessing the Asylum Claims of Women, 26

Cornell Int’l L.J. 625 (1993); Pamela Goldberg, Anyplace But Home:

Asylum in the United States for Women Fleeing Intimate Violence, 26

Cornell Int’l L.J. 565, 591-92 (1993).

As the respondent has been found credible by the Immigration Judge

and the majority has conceded that her account is credible, her account is to

be taken as true. Lazo-Majano v. INS, supra, at 1434. The record reflects

that the respondent not only holds an actual opinion opposing her husband’s

violence, but it is apparent that her husband believed that her resistance to

his domination and abuse, particularly as reflected in her seeking assistance

from governmental authorities, constituted an opinion opposing his male

dominance. Imputing this opinion to her, he sought to overcome her opposition by escalating his abuse of her. The legal interpretation of such a

course of events—which undisputedly has occurred in the respondent’s

case—is classic. It corresponds to our longstanding analysis of the elements

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that must be present to support a finding of persecution on account of a protected ground. See, e.g., Matter of Mogharrabi, supra, at 446 (requiring that

an applicant for asylum establish that: “(1) the alien possesses a belief or

characteristic 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 characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the

inclination to punish the alien” (quoting Matter of Acosta, supra, at 226));

see also Matter of Kasinga, supra.

Both we and the federal courts recognize the merit to asylum claims

involving rape and other forms of physical and mental violence against

women on account of their actual or imputed political opinion. See LopezGalarza v. INS, 99 F.3d 954, 960 (9th Cir. 1996); Lazo-Majano v. INS,

supra; Matter of D-V-, 21 I&N Dec. 77 (BIA 1993); see also Angoucheva

v. INS, 106 F.3d 781, 793 n.2 (7th Cir. 1997) (Rovner, J., concurring) (stating that “[r]ape and sexual assault are generally understood today not as

sexual acts borne of attraction, but as acts of violent aggression that stem

from the perpetrator’s power over and desire to harm his victim”); United

States v. Powers, 59 F.3d 1460, 1465-66 (4th Cir. 1995), cert. denied, 516

U.S. 1077 (1996); United States v. Hammond, 17 M.J. 218, 220 n.3 (C.M.A.

1984) (stating that one of the “common misconceptions about rape is that it

is a sexual act rather than a crime of violence”).

The evidence in the record before us establishes, with chilling certainty, that the respondent’s husband was aware of, and imputed to the respondent, her beliefs in opposition to domestic violence. The record amply supports the conclusion that the abuse suffered by the respondent was on

account of the abuser’s belief that, as her husband, he could dominate the

respondent physically and emotionally, as well as socially and culturally.

For example, according to the respondent’s credible account, her husband

explained his repeatedly striking her, whipping her with an electrical cord,

threatening her with a machete, pistol whipping her, raping her, sodomizing

her, breaking a mirror over her head, kicking her in the spine, attempting to

abort their second child, slamming her head into furniture and dragging her

by the hair, and knocking her unconscious, as his right as her husband.

In the case before us, the victim’s opposition to such treatment was

known or could have been known to the abuser. See Matter of Mogharrabi,

supra. This is illustrated in the respondent’s credible reports of her husband’s responses to her protestations and attempts to leave him. In addition,

the record demonstrates that the abuser had the inclination and the capability to overcome or seek to overcome such opposition. See id. This is shown

by the respondent’s credible reports of the abuser’s bragging to the respondent that, while serving in the Guatemalan Army, he killed babies and the

elderly, as well as by her account of the physical and emotional harm he

already has inflicted on her. Such conclusion is supported further by credi943

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ble reports that the Guatemalan Government will not intercede to protect

the respondent, as well as by corroborating evidence that establishes that

domestic violence in Guatemala is pervasive.

Moreover, the record before us reflects that the abuser is motivated to

continue and even escalate his abuse in order to stifle and overcome his victim’s opposition to it. As the majority notes, the rage, abuse, and violence

against the respondent escalated as the marriage progressed. This is illustrated by the respondent’s credible and corroborated account in the record

of the persistent, brutal physical and mental abuse inflicted by her husband.

See Deborah Anker et al., Women Whose Governments are Unable or

Unwilling to Provide Reasonable Protection from Domestic Violence May

Qualify as Refugees Under United States Asylum Law, 11 Geo. Immigr. L.J.

709, 713 (1997) (referring to research documenting increases in the frequency and severity of violence relative to the time spent in an abusive relationship).

In Lazo-Majano, a sergeant in the Salvadoran military raped the

respondent on several occasions and inflicted other physical abuse, including beatings. The sergeant denounced the respondent and her husband as

“subversives” and threatened to kill them both if her husband, who had fled

the country for political reasons, returned to El Salvador. Lazo-Majano v.

INS, supra, at 1433. The court concluded:

Persecution is stamped on every page of this record. [The respondent] has been singled out to be bullied, beaten, injured, raped, and enslaved. [Her] initial acquiescence

[in working for the official] does not alter the persecutory character of her treatment.

. . . The persecution has been conducted by a member of the Armed Force, a military

power that exercises domination over much of El Salvador . . . . [The sergeant] had his

gun, his grenades, his bombs, his authority and his hold over [the respondent] because

he was a member of this powerful military group.

Id. at 1434; see also Lopez-Galarza v. INS, supra.

The factors considered by the Ninth Circuit in Lazo-Majano closely

resemble those in the case before us. In that case, the victim first acquiesced

to the abuse. Here, the record reflects that, from the outset, the respondent’s

husband was abusive and that she submitted to him. In Lazo-Majano, the

persecutor invoked the full force of the Salvadoran Army to intimidate the

victim and overcome her resistance. Here, the respondent’s husband

invoked his affiliation with the military as a means to intimidate and continue to abuse the respondent.

The majority insists that the respondent’s husband persecuted her

regardless of what she believed or what he thought she believed, claiming

that the record does not reflect he was motivated by gender animus generally. The majority contends that the abuser was not, even in part, motivated

by the respondent’s resistance to his domination, even though he had told

her he viewed women as property to be treated brutally in order to sustain

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his domination. This is contrary to fact, law, and logic. To reach such a conclusion, the majority must ignore entirely the mixed motive doctrine, which

not only constitutes a well-established basis for asylum in cases arising

before the Ninth Circuit, but also constitutes a basis for asylum in claims

made before this Board. See Ratnam v. INS, supra; Singh v. Ilchert, supra,

at 1508; Matter of S-P-, supra. Furthermore, as we stated in conjunction

with our consideration of the respondent as a member of a particular social

group, illegitimate motives triggering persecution raise an inference that the

harm has occurred on account of a statutorily enumerated ground.

Rodriguez-Roman v. INS, supra; Matter of Kasinga, supra.

The Ninth Circuit has repeatedly criticized this Board’s tendency to

confuse political with “personal” interests when evaluating claims of persecution based on political opinion. Desir v. Ilchert, 840 F.2d 723, 728 (9th

Cir. 1988) (recognizing that the “essentially political nature of the respondent’s predicament” was evident from the fact it was a “relationship of the

weak to the powerful”); Lazo-Majano v. INS, supra; Korablina v. INS,

supra, at 1045; Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969). Moreover,

the respondent has faced an exponentially increasing imposition of severe

abuse, which has escalated in tandem with her efforts to resist, oppose, or

seek protection from such harm. As the Immigration Judge noted, the beatings worsened “when the respondent protested or tried to leave her husband

to get help,” and “violent behavior increased in response to respondent’s

resistance to domination.” Strikingly similar evidence of the persecutor’s

motive to quash the victim’s political opinion resulted in the Ninth Circuit’s

opinion in Gonzales-Neyra v. INS, 122 F.3d 1293, 1295 (9th Cir. 1997), in

which the court found that the escalation of harm supported an inference

imputing the victim’s political opinion in opposition to the persecutor’s

goals as motivation for the increasingly volatile threats.

To summarize, the situation faced by the respondent is strikingly close

to our decision in Matter of Kasinga, supra, relating to persecution motivated by membership in a social group, in which a woman who opposed

male domination and the infliction of violence and abuse due to her gender

was afforded protection under United States asylum laws. Whether the

political opinion is actually held or imputed makes little difference where

the alien’s life is equally at risk. Desir v. Ilchert, supra, at 729; LazoMajano v. INS, supra, at 1435. The Ninth Circuit stated:

In deciding whether anyone has a well-founded fear of persecution or is in danger of losing life or liberty because of a political opinion, one must continue to look at the person

from the perspective of the persecutor. If the persecutor thinks the person guilty of political opinion, then the person is at risk.

Lazo-Majano v. INS, supra, at 1435. Likewise, the respondent’s husband struck out both at the respondent’s actual opposition to domestic violence and at what he saw as her resistance to his domination.

Had the respondent been subjected to such heinous abuse due to polit945

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ical opposition to communism, imputed as a result of her family’s economic class or political activities, the majority would recognize her situation as

one of persecution on account of political opinion. See Matter of B-, 21 I&N

Dec. 66 (BIA 1995); Matter of Chen, 20 I&N Dec. 16 (1989). She is not

less eligible or entitled to protection on account of her political opinion

opposing male domination expressed through the abuse of women by their

husbands, or the political opinion attributed to her, than were the comparably qualifying applicants to whom we have granted asylum.

V. CONCLUSION

For the foregoing reasons, I would dismiss the Service’s appeal. The

Immigration Judge was correct in determining that the respondent is eligible for asylum pursuant to section 208 of the Act, 8 U.S.C. § 1158 (1994).

I, therefore, respectfully dissent.

946