Safe Harbor: Reforming the U.S. Asylum System to Better Protect Domestic Violence Survivors


Iva Petkova


The world is facing a growing epidemic of violence against women, with mil- lions of women and girls facing physical, sexual, and psychological harm by their intimate partners. Often, women have no legal recourse or avenues for protection in their home countries, so every year, thousands of domestic violence survivors flee to seek shelter in the United States. Upon their arrival, they are greeted by the opaque and convoluted web of rules and regulations that makes up the U.S. asylum system. In order to prove that they are refugees, asylum seekers must show, among other things, that they faced persecution on account of a protected ground: their race, religion, nationality, membership in a particular social group, or po- litical opinion. Because no discrete ground exists for claiming asylum on the basis of gender or a history of domestic violence, survivors must make their claims un- der the flexible “particular social group” (“PSG”) ground. This requires them to not only make out all the other elements of an asylum claim, but also to craft a PSG definition that courts will accept. The uncertainty around this PSG ground has led to decades of inconsistent case law and barriers for survivors.

This Article uses the Northern Triangle countries of Guatemala, Honduras, and El Salvador as a paradigmatic lens through which to examine the significant scope of migration motivated by domestic violence and the urgency of developing a more accessible asylum system. It traces the evolution of the PSG ground in domestic violence asylum case law from the 1990s to today, highlighting the ways in which its highly politicized, inaccessible, and constantly fluctuating nature im- poses barriers on survivors seeking shelter in the United States. The Article then proposes and evaluates two sorely needed reforms: issuing regulations clearly identifying domestic violence survivors as members of a cognizable PSG and amending the Immigration and Nationality Act (“INA”) to include “gender” as an independent ground for asylum. Until advocates can successfully reform the INA, the first proposal will ensure that survivors can continue to use the PSG ground, as imperfect as it may be. Both reforms are necessary to ensure that the United States lives up to its human rights ideals by offering a safe harbor to those in need of protection.

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