Asylum, Social Group Membership and the Non-State Actor: The Challenge of Domestic Violence

This Article argues that the current approaches to asylum claims based on “social group” membership under the U.N. convention Relation to the Status of Refugees are deeply flawed. The Refugee Convention confers asylum on persons persecuted for their membership in a particular social group. Courts have struggled with the boundaries of the social group definition, and there appears to be no coherent way to reconcile all of the court decisions on what groups qualify as social groups under the Refugee Convention.

This Article suggests that courts adopt a consistent definition of what constitutes a social group. The definition proposed in this Article focuses on social perception in the home country of the asylum applicant, and would modestly expand the number of individuals who could successfully claim they were persecuted because of membership in a social group. The Article argues this response is particularly appropriate in light of a major trend in immigration law: asylum applicants increasingly seek protection from persecution not directly from the government, but from non-state actors who are able to persecute their victims because of government indifference to the plight of members of a social group.

Part I of this Article introduces the general objectives and structure of asylum law, and its embodiment in the Geneva convention. Part H explains the current law concerning the social group category, and suggests that courts have failed to provide a consistent standard for social group membership, instead relying on ad hoc decisions about particular claims. Part I goes on to suggest that one major reason for this incoherence is that courts paid insufficient attention to claims of persecution by non-state actors. Part III addresses the problems the non-state actor poses for asylum law. Part IV addresses the particular issue of asylum claims arising out of domestic abuse. It reviews international cases on the subject and the Board of Immigration Appeals’ decision in R-A-. Part IV argues R-A- s defines social groups too narrowly, and that courts should allow some claims of asylum based on domestic abuse.