In the decades since the passage of the Immigration and Nationality Act1 (INA), U.S. immigration authorities and courts have adopted different positions on whether domestic violence survivors — who experience so-called “private” harm by nonstate actors — are eligible for asylum protection.2 As a result, U.S. immigration law has generated insecurity, rather than freedom, for domestic violence survivors.3 Recently, in De Pena-Paniagua v. Barr,4 the First Circuit offered clarity by affirming the viability of domestic violence asylum claims and opining on the cognizability of particular social groups (PSGs) defined solely by gender and nationality, such as Dominican women.5 The court challenged the Attorney General’s standard for cognizable PSGs articulated in In re A-B-,6 potentially making more domestic violence survivors eligible for asylum protection. As such, the First Circuit’s opinion in De Pena-Paniagua was a positive development for survivors of domestic violence seeking asylum protection. However, the First Circuit should have provided even clearer guidance to adjudicators by disclaiming the practice of infusing PSG determinations with the public-private dichotomy, which can unduly undercut asylum claims by survivors of gendered violence.
Jacelys Miguelina De Pena-Paniagua (De Pena) is a Dominican national who applied for asylum and based her claims on her account of abuse suffered at the hands of her former partner, Hanlet Rafael Arias Melo (Arias).7 According to De Pena, Arias abused her for the majority of their relationship: He was verbally abusive.8 He raped her five times.9 He threatened her multiple times, and, in January 2013, he “threw a telephone at her head” and beat her severely.10 De Pena reported the incident to local police, who considered it an attempted homicide but did not arrest Arias.11 De Pena fled to the U.S. border and was detained by Border Patrol agents near Laredo, Texas, in December 2013.12
The immigration judge (IJ) denied De Pena’s subsequent requests for asylum, withholding of removal, and protection under the UN Convention Against Torture13 (CAT).14 The IJ concluded that discrepancies in De Pena’s testimony showed she lacked a “subjective or objective fear of persecution”15 and further found that De Pena had not shown Dominican officials were unable or unwilling to provide protection.16 To qualify for asylum protection, an applicant must show “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”17 The Board of Immigration Appeals (BIA) has interpreted “particular social group” to mean a class of individuals who share an immutable or fundamental characteristic18 that is both particular and socially distinct.19 De Pena appealed the IJ’s decision to the BIA, arguing that her proffered PSGs, all derivative of “Dominican women unable to leave a domestic relationship,” were cognizable and that the abuse she suffered amounted to persecution on account of her membership in those groups.20
The BIA affirmed the decision of the IJ, finding no clear error in the IJ’s conclusions and determining that De Pena’s proffered PSGs were not cognizable.21 The BIA grounded its rejection of De Pena’s proffered PSGs in its reading of Attorney General Jefferson Sessions’s decision in In re A-B-, which it considered intervening precedent.22 In A-B-, the Attorney General found that asylum seekers who base claims on domestic violence are likely not members of cognizable PSGs.23 The Attorney General concluded that a cognizable PSG must “‘exist independently’ of the harm asserted in an application for asylum,”24 in part because “[i]f a group is defined by the persecution of its members, then the definition of the group moots the need to establish actual persecution.”25 Accordingly, the Attorney General denied asylum to an applicant who claimed membership in a PSG of “El Salvadoran women who are unable to leave their domestic relationship where they have children in common.”26 In De Pena’s case, the BIA concluded that De Pena’s PSGs were equivalent to those found not cognizable in A-B- and denied her claims on that ground.27
The First Circuit remanded to the BIA.28 Writing for the panel, Judge Kayatta29 disclaimed the BIA’s reading of A-B- as precluding PSGs that, like De Pena’s, are based on an inability to leave a domestic relationship.30 Analyzing the decision in A-B- itself, the First Circuit determined that the language used by the Attorney General in no way signaled a categorical bar to PSGs based on inability to leave domestic relationships.31 Instead, the court found that A-B- suggested nothing beyond a relative unlikelihood that such groups satisfy particularity and distinction requirements for cognizability.32
The panel next scrutinized the BIA’s conclusion that, based on A-B-, social groups defined by abuse suffered in domestic relationships presented impermissible grounds for asylum as a matter of law.33 The court rejected the notion of such a categorical bar, concluding that the Attorney General in A-B- erred by conflating the persecution experienced by an asylum seeker with the reason they are unable to leave the relationship.34 According to Judge Kayatta, nothing in A-B- obviated the need to examine the particularities of De Pena’s allegations.35 The panel found that because the BIA neglected to conduct a fact-specific analysis of De Pena’s claims, its decision was “arbitrary and unexamined.”36
On appeal, De Pena argued her proffered PSGs were cognizable because “a group based on gender . . . satisfies the particularity requirement” and because nationality and gender meet the immutability requirement.37 Signaling agreement, Judge Kayatta noted that a numerically large PSG based on gender and nationality alone may meet particularity and social distinction requirements.38 The court opined that claiming membership in a broad group defined only by women in a particular country is “hardly . . . a fool’s errand” because women are almost always seen as a distinct, defined social group.39 The court concluded that a large PSG does not preclude a finding of particularity when the PSG shares a common “underlying immutable characteristic” like gender.40 However, the panel was limited by law to the PSGs presented to the BIA in earlier proceedings and was unable to determine whether a social group defined only as women in a particular country — in this case, a group defined as “Dominican women” — is cognizable.41
The First Circuit’s decision in De Pena-Paniagua was consistent with several recent circuit court decisions42 and disclaimed an attempt to heighten asylum eligibility requirements by distorting the definition of “particular social group.”43 However, the court should have gone further and provided clear guidance on how to adjudicate domestic violence asylum claims. In the decades since the passage of the Refugee Act of 1980,44 asylum seekers have navigated evolving definitions of “particular social group.”45 Much of the inconsistency across IJ, BIA, and circuit court decisions regarding the cognizability of PSGs reflects a misplaced concern that, without heightened PSG requirements, the asylum system will overextend to protect individuals who have experienced only so-called private harms.46 These heightened PSG requirements are unfaithful to the INA, which has other requirements that effectively guard against a “floodgate” scenario.47 While the First Circuit in De Pena-Paniagua curtailed the influence of the public-private dichotomy in De Pena’s case, the court’s limited holding may not provide adjudicators with the guidance they need to apply the statutory framework to domestic violence asylum cases.48
The public-private dichotomy itself has been subject to a slew of feminist critiques49 that retain force when applied to substantive asylum law. Though different versions of the public-private distinction are invoked in different contexts, the public-private dichotomy generally distinguishes acts that implicate general welfare and political systems (the “public”) from acts that implicate family structures and small-scale markets (the “private”).50 In practice, the public-private dichotomy legitimizes the hopeless flexibility of “public” and “private” conceptions — nearly any “public act” can be construed as “private,” and vice versa.51 By permitting a “withdrawal of the law from the so-called domestic sphere,”52 the public-private dichotomy renders vulnerable populations susceptible to abuse and contributes to a culture of impunity.53 Moreover, male-centric perspectives on human rights have “privilege[d] public over private activity”54 in a manner that is reflected in U.S. asylum adjudications.55 These critiques underscore why adjudicators should treat the categorization of harms as “private” and unactionable with care when determining whether proffered PSGs are cognizable as a matter of law.
Perhaps in light of concerns animating the traditional critiques of the dichotomy,56 the statutory role of the public-private dichotomy in U.S. asylum law is limited. United States asylum law embodies the public-private dichotomy to the extent it provides more liberal protection to individuals subjected to state-sponsored, “public” persecution but requires an affirmative showing of a state’s failure to protect before an applicant is eligible for asylum protection arising from harm by a nonstate actor.57 Even adjudicators sympathetic to harm suffered by domestic violence survivors may believe U.S. law precludes their eligibility for asylum protection under the theory that “domestic violence is unrelated to state action, a prerequisite for claiming refugee status.”58 However, in cases where an applicant’s home country has failed to protect them from private harm, the private origin of persecution does not bar an applicant’s eligibility for asylum protection.59 Further, the INA does not define “particular social group” and the statute’s text does not indicate that PSG determinations should be shaped by considerations of whether the persecution is private or public in nature.60
The public-private dichotomy can alter an adjudicator’s assessment of an applicant’s claim in a manner antithetical to the INA when it extends beyond its confined statutory role and impacts PSG determinations. An applicant suffering harm from nonstate actors needs to show only that she is “unable or unwilling to avail [herself] of the protection [of her home country] because of persecution or a well-founded fear of persecution” due to a protected ground and not otherwise barred from asylum protection.61 When adjudicators decline to examine other statutory requirements diligently and instead focus on the origin of an applicant’s harm when determining whether proffered PSGs are cognizable, they ignore key provisions of the guiding statute.
The undue influence of the public-private dichotomy on asylum determinations was embraced by the Attorney General in A-B-. In A-B-, Attorney General Sessions sought to exclude PSGs predicated on private violence from being cognizable because such a construction was impermissibly “expansive.”62 Focused on preventing a “floodgate” scenario,63 the Attorney General conveyed concern that “broad swaths of society” may be eligible for U.S. asylum protection if PSGs can be defined by private harm.64 The Attorney General repeatedly characterized domestic violence as private conduct,65 minimized statutory language that recognizes that serious harm by nonstate actors can be persecution if the state fails to provide protection,66 and declined to consider other constraining features of the INA’s definition of refugee, such as the requirement that persecution be “on account of” a protected ground.67 A-B- emphasized that survivors of domestic violence could be part of cognizable PSGs only in “exceptional circumstances,”68 declining to acknowledge that statutory language extends protection to survivors of persecution at the hands of a private actor.69
By emphasizing that PSG requirements do not categorically bar domestic violence asylum claims like De Pena’s,70 the First Circuit refuted part of the misplaced logic of A-B-. Yet the insistence that A-B- does not represent a full categorical bar to social groups proffered by domestic violence survivors still gives adjudicators ample discretion to render an applicant ineligible for asylum by concluding that a proffered PSG is defined by private harm. With that in mind, the First Circuit should have provided clearer guidance to adjudicators assessing asylum claims based on domestic violence. To facilitate more consistent decisions and ensure adjudicators apply the complete statutory scheme to an applicant’s claim, the court should have clarified that, in private persecution cases, adjudicators must conduct a thorough, fact-specific inquiry to determine whether the private persecution was due to membership in a protected class and whether the state is unable or unwilling to adequately protect.71 This guidance would mean adjudicators could not perform shallow analyses of other statutory requirements72 under the presumption that PSGs proffered by survivors of private persecution are not cognizable.
The limited scope of the First Circuit’s opinion in De Pena-Paniagua left meaningful room for adjudicators to apply heightened PSG standards to domestic violence survivors who seek U.S. asylum protection. The public-private dichotomy may therefore continue to relegate serious gender-based violence to private and nonactionable status in the absence of a firmer statement against allowing the private origin of persecution to bear on the cognizability of PSGs proffered by applicants. A clear dismissal of the public-private dichotomy’s influence upon PSG determinations would have ensured survivors of persecution by private actors remain eligible for the asylum protection guaranteed to them under international and domestic law, provided they meet other statutory requirements. Thus, for now, the private realm may continue to drive insecurity even for those who nominally manage to escape it.