The Board of Immigration Appeals (BIA) in Matter of H-R-M- (Mar. 14, 2016), an unpublished decision, clarified an issue that was left unresolved since Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which had recognized the particular social group of "married women in Guatemala who are unable to leave their relationship": whether marriage itself was required to make domestic violence-based social groups sufficiently immutable or socially distinct to be cognizable social groups under the definition initially espoused under Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).
While A-R-C-G- was the first case in which the BIA entertained a domestic violence, gender-based particular social group for purposes of asylum and withholding of removal, adjudicators were left unclear on whether unmarried victims of domestic violence constituted a particular social group, or whether the marriage of the victim was critical to establishing the group's immutability and social distinction, and to an extent, its particularity.
While H-R-M- is an unpublished, non-precedential decision, it instills confidence for practitioners that women harmed by gender-based violence need not have been married to their abuser in order to gain protection by U.S. asylum laws. This decision is especially welcome considering that the First Circuit's Vega-Ayala v. Lynch, No. 15-2114 (1st Cir. Aug. 10, 20165), recently held - in facts very specific and peculiar to that case - that "Salvadoran women in intimate relationships with partners, who view them as property" was not a particular social group. Because of the formulation of that social group in the First Circuit case, it seemed to peril "unmarried women" cases, even if they suffered domestic abuse.
The petitioner in Vega-Ayala was in a relationship with the abuser for 18 months. They never lived together, but saw each other twice per week. He grew violent as the relationship matured, grabbing her and causing bruises and blue marks. He even raped her, but she never told anyone due to being ashamed. She also never told police, due to beliefs that police wouldn't assist a victim of domestic violence.
She then became pregnant with the abuser's daughter, and actually gave birth to the child. The abuser eventually got arrested for an unrelated kidnapping and imprisoned, but he continued to call her from jail daily to threaten her. She actually lived in a house that the abuser bought for her because she was ashamed for having his child. After he was released from jail, he threatened her mother. He also threatened her once again, after she entered into the U.S.
Critically, in Vega-Ayala, being in an intimate relationship with a partner who views you as property was not an immutable characteristic:
"Vega-Ayala's facts are a far cry from the circumstances in A-R-C-G-. Vega-Ayala could have left Hernandez. She never lived with him. She saw him only twice a week and continued to attend a university. She chose to live in a home that he purchased in her name while he was in jail. Their relationship spanned only eighteen months, and he was incarcerated for twelve of those months. The BIA supportably concluded that Vega-Ayala failed to articulate a requisite immutable trait common to her proposed social group."
Thus, as can be gleaned from the First Circuit's analysis, the holding may very well carry limited future application, since the rejection of the particular social group was directly tied to the facts. It is very likely that with different facts for the petitioner, the Circuit court would have found otherwise, like the BIA did here in H-R-M-.
It appears the First Circuit emphasized how Vega-Ayala lived in a home the abuser bought for her, and how he was in jail for most of their relationship. Even if he threatened her daily, she could have left him given his incarceration. Since she couldn't show that she was "unable to leave the relationship," ipso facto, she could not prove the immutability requirement. Moreover, since the abuser was incarcerated, the petitioner could not demonstrate that the government was unwilling or unable to control the persecutor.
In H-R-M-, the particular social group ultimately accepted by the BIA was simple, clear, and powerful: "women who cannot leave a relationship." Immutability was established as the group is defined by the common and immutable characteristic of gender. Particularity was sufficient because it was narrowed by "women," "relationship," and "cannot leave." Social distinction was met because the country research and reports confirmed that women are uniquely mistreated and socially distinct in Honduran society, that gender-based violence remained a widespread problem, and that many women were often reluctant to lodge complaints.
The BIA in H-R-M- was clear by clarifying the contours of the particular social group originally espoused in A-R-C-G-: "In [A-R-C-G-], we reasoned that marital status could be an immutable characteristic depending on the facts and circumstances of the case, but we did not require a victim of domestic violence to be married to the abuser. Nor did we require that the victim of domestic violence to be in a lengthly relationship with the abuser."
Accordingly, victims of gender-based and domestic violence should continue to raise similar particular social group formulations regardless of marital status, so long as victims' factual situations satisfy the requirements of immutability, particularity, and social distinction. More than anything, the BIA instills confidence that they engage in a fact-based, individualized, and specific inquiry into each respondent's case pursuant to the directive in Pirir Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) (the Board "may not reject a group solely because it had previously found a similar group in a different society to lack social distinction or particularity, especially where . . . it is presented with evidence showing that the proposed group may in fact be recognized by the relevant society."). Matter of H-R-M-, while a new and recent decision, again reminds us all of the basics: that the Matter of Acosta test still controls even after three decades.