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EspañolWhat is asylum?
Asylum is an immigration status for people who are afraid to return to their home countries. It is similar to refugee status, except that you must apply from inside the U.S., as opposed to filing from another country or a refugee camp. It is not an easy or fast process, and it is not something you should do without help from a lawyer who knows how to do asylum cases. If you fear going to your home country because of domestic violence or sexual assault that you experienced there, make sure your attorney has experience applying for asylum for domestic violence and sexual assault survivors; not all immigration attorneys do. Note: The Center for Gender and Refugee Studies is a good resource for lawyers, domestic and sexual violence advocates, and asylum-seekers who have questions regarding asylum based on domestic or sexual violence.
The biggest challenge to getting asylum status for those who experienced domestic or sexual violence in other countries is that the asylum law was created before violence against women, or gender-based violence, was generally recognized as a reason that people flee their countries. Although the U.S. government has granted asylum on the basis of domestic or sexual violence that was committed in another country, it can be difficult to win this type of asylum claim.
Because asylum is complicated and the rules change a lot, this section will not tell you how you can win an asylum case; it will only outline some of the main things the government says you must show.
Who qualifies for asylum? Will being a victim of domestic or sexual violence qualify me?
To be eligible for asylum, you must show that:
- you were or will be “persecuted” in your home country; and
- at least one central reason for the persecution is your race, religion, nationality, membership in a particular social group, or political opinion.1
You may be eligible for asylum if you fall into one of the above categories. However, it is not enough to prove that you were the victim of domestic or sexual violence, or any other kind of violence. You must also show that the abuser committed or justified his/her actions because of your race, religion, nationality, political opinion, or membership in a particular social group.
Some courts have recognized opposition to societal norms of violence against women as a “political opinion.”2 Typically, though, domestic violence cases are based on harm on account of your membership in a particular social group. Each case is different and depends on the facts, but some domestic violence victims may be able to show that they were abused because they were married to the abuser and could not leave the relationship, because they were a member of the abuser’s family, or because they are women.3
Domestic violence asylum claims are very complicated and difficult to win without an attorney. To find a list of legal resources in your area, please see Finding a Lawyer and select your state or see our National Organizations Immigration page.
1 INA § 208(b)(1)(B)(i); 8 USC § 1158(b)(1)(B)(i)
2 Hernandez-Chacon v. Barr, 948 F.3d 94 (2020) (political opinion based on resistance to male dominance)
3 See, e.g., De Pena-Paniagua v. Barr, 957 F.3d 88, 95 (1st Cir. 2020) (approving asylum based on particular social group of “Dominican women unable to leave a relationship with the man who abuses them” but also encouraging applicants to assert claims based simply on being in the social group of “women” or “women in a certain country”)
What does "persecution" mean? How do I prove that the government was unable or unwilling to protect me from persecution?
Proving that you did or likely will suffer from persecution is a key element in proving asylum. However, the laws do not specifically define the term “persecution.” In past asylum court cases, it has been defined as causing (inflicting) suffering or harm upon those who differ in race, nationality, religion, political opinion, or particular social group, in a way regarded as offensive.1
Another requirement of proving your asylum claim is showing that the source of the persecution is the government, a quasi-official group, or a person or group that the government is unwilling or unable to control.2
If you are claiming asylum based on domestic or sexual violence, in order to explain that your home country’s government is unable or unwilling to protect you, here are some points that you should discuss with your attorney and your domestic or sexual violence advocate:
- Did you report the domestic or sexual violence to the authorities in your home country?
- If you did report the abuse, what happened? What did the authorities do?
- If you reported the domestic or sexual violence, and the authorities did try to help you but the abuser still threatened or harmed you, then this could be an example of your government being “unable” to protect you.
- If you reported the domestic or sexual violence, and the authorities did not even try to help you, then this could be an example of your government being “unwilling” to help you.
- If you didn’t report the abuse to the authorities, why not?
- Sometimes it’s pointless or dangerous to report to authorities. If it’s well-known that they will do nothing for domestic or sexual violence survivors, for example, then the argument can be made that it’s pointless to report it and you should not have to do it.
- Sometimes reporting abuse to authorities is not just pointless, it’s dangerous. For example, if it’s well-known that the authorities will tell abusers and rapists about the people who report them, it’s dangerous. Especially if the person who abused you is a powerful person in your community or works for the authorities, it may be very dangerous to report the domestic or sexual violence.
- If you did report the abuse, what happened? What did the authorities do?
- If it was pointless or dangerous to report abuse to your local authorities, you can work with your attorney and advocate to show that this is because your government can’t or won’t protect you against the person who abused you.
1 See e.g., Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018)
2 See e.g., Avetova-Elisseva v. I.N.S., 213 F.3d 1192 (9th Cir. 2000)
Is being a woman enough to prove I am part of a "particular social group?"
In order to prove membership in a “particular social group,” it is important to know that our asylum system does not consistently acknowledge “women” and “gender” as “social groups.” Courts in different parts of the country disagree on whether “women in in a specific country” can be recognized as a particular social group for the purpose of asylum. You should talk to your lawyer about what the law in your area requires to demonstrate your membership in a particular social group.
Alternatively, victims of abuse may show they are in a smaller “social group” than all women in their country; but our asylum system keeps changing its mind on what people must show to be in a “social group.” This makes it very hard to do an asylum application on your own, and it is one reason why you must work with an attorney who is up-to-date on the latest government policies and federal cases. It is also why you may want to talk to your lawyer about whether you were abused or raped because of, for instance, your political opinion, race, nationality, religion, or sexual orientation.1 Even if you can show this, however, you will also have to show:
- how your identity or opinion was known to the perpetrator;
- that this is why you were abused or sexually assaulted; and
- that your government would not or could not protect you. Note: This last requirement is an example of a requirement that was added by our government and is not in the statute.
Note: Despite the disagreement about whether “women” can establish a particular social group, courts and the asylum system agree that LGBTQ+ identity or “imputed identity” is a sufficient basis for a particular social group.2 This is important because sexual violence is a common type of persecution faced by members of these groups. For more information about your rights as an LGBTQ+ or HIV-positive asylum seeker, see the Immigration Equality website.
1 Compare Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010) (upholding gender based particular social group of “women in Guatemala”) with Chavez-Chilel v. Att’y Gen, 20 F.4th 138 (3d Cir. 2021) (rejecting “Guatemalan women” as a particular social group)
2 See Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1994)
If I plan on coming into the U.S. by crossing the border, how do I ask for asylum?
In order to ensure that people fleeing persecution who arrive at the U.S. border are not immediately turned away, Customs and Border Protection (CBP) officers are supposed to ask people without a valid visa or immigration status if they fear persecution in their homeland. If you say “yes,” you should get what is called a credible fear interview. During the credible fear interview, you will be asked a series of questions about what fear you have related to returning to your homeland. If you “pass” the credible fear interview, which means that the officer finds that there is a “significant possibility” of winning on a claim for asylum, then you should receive a Notice to Appear (NTA) in immigration court and will be placed in removal proceedings before a judge where you can ask the immigration judge for asylum and try to prove your case.
However, the government frequently makes changes to this system, and the processes that you must go through to ask for asylum. Do not assume that anyone in our immigration system will ever ask you if you fear going back to your home country. Instead, be ready to say it for yourself, more than once if necessary, and say why you fear being sent back to your home country. Ideally, you should speak to a lawyer who is knowledgeable about the current policies at the border before you arrive.
Information about current credible fear processes should be available on the USCIS website. You can read more information about how to pass a credible fear interview on the Immigration Equality website.
