In re R-a-
| Citation | 22 I&N Dec. 906 |
| Decision Date | 19 January 2001 |
| Docket Number | Interim Decision No. 3403. |
| Parties | In re R-A-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
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 here-by 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.
(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.
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.
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).
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 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,
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...
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