9th Circuit ruling reaffirms protection for women fleeing domestic violence

Refugee survivors of domestic violence were among the first casualties in the Trump administration's sustained assault on our asylum system. In June 2018, then-Attorney General Jeff Sessions issued a sweeping decision known as Matter of A-B- in an attempt to eliminate asylum protections for those fleeing domestic violence and other harms. The A-B- decision has had a devastating effect, leading to a sharp downturn in asylum grant rates around the country. And many immigration judges have followed the attorney general's lead, singling out women's claims for discriminatory treatment and relying on A-B- to summarily reject them.

On Aug. 7, in the case of an indigenous Guatemalan survivor, Sontos Maudilla Diaz-Reynoso, the 9th U.S. Circuit Court of Appeals pushed back. Diaz-Reynoso fled Guatemala after enduring four years of unrelenting abuse at the hands of her common law husband, who repeatedly raped and beat her and forced her to work in coffee fields without pay. Local authorities ignored Diaz-Reynoso's pleas for help. She met similar resistance when she sought safety in the United States and did not receive a fair hearing from our immigration court system.

The lower immigration court denied protection to Diaz-Reynoso with cursory legal analysis. Already facing an uphill battle, on appeal she encountered new hurdles with the issuance of Matter of A-B-. The administrative appellate body (the Justice Department's Board of Immigration Appeals) interpreted Sessions' ruling to impose a complete ban on domestic violence-related cases like hers.

The 9th Circuit called out this error and overturned the board's denial of protection in Diaz-Reynoso v. Barr, 2020 DJDAR 8272. Diaz-Reynoso had claimed persecution on account of her membership in a particular social group, one of the five protected grounds enumerated in statute. The bulk of the court's decision analyzes the meaning of the "particular social group" term, elusive to even the most seasoned practitioners and far beyond the scope of this piece. But, at its heart, the decision reiterates a bedrock principle of asylum law: that each person has the right to fair consideration of her case under the law, which requires a judge to meaningfully review the facts and evidence presented and to not prejudge the case.

The panel acknowledged troubling language in Matter of A-B- that seemingly encourages judges to deny cases. But the court held that this is not what the attorney general could have intended, as such an interpretation contravenes the longstanding principle of case-by-case adjudication. In short, the decision severely blunts the impact of Matter of A-B-. Indeed, two days after the court issued its opinion in Diaz-Reynoso, it applied its holding to reverse board denials in two other cases, Fuentes Reyes v. Barr and Arellano-Rodriguez v. Barr.

The dissent resurrects a common theme in resistance to recognition of women's asylum claims -- the notion that by granting protection to women fleeing gender-based persecution, we are simply opening the doors too wide. But, in adopting our international treaty obligations into U.S. law, Congress did not impose a cap on asylum grants. And a woman's membership in a protected "particular social group" does not alone qualify her for asylum. Just like an individual claiming asylum based on their race, religion, nationality, or political opinion -- categories that comprise similarly large groups of people -- she must meet a high evidentiary burden on a number of issues in an increasingly complex area of the law.

Contrary to the dissent's implications, interpreting asylum law to cover gender claims does not break new ground but instead follows a long line of jurisprudence dating back to the 1990s. It is also in line with the position of the United Nations High Commissioner for Refugees, which courts look to as an authoritative and expert opinion on the scope of the Refugee Protocol, to which the United States is a party. Other circuits have agreed with the majority's interpretation.

Diaz-Reynoso is the latest in a series of decisions from the federal courts of appeals reaffirming that refugee women are in fact deserving of protection under U.S. law. In April, in De Pena-Paniagua v. Barr, 957 F.3d 88, the 1st Circuit reached a similar conclusion, recognizing that women are a protected group and that they are persecuted in many countries precisely because of their gender and status of women in society. And in May, in Juan Antonio v. Barr, 959 F.3d 778, the 6th Circuit also held that women seeking refuge from countries where domestic violence is perpetrated with impunity can qualify for asylum. Most recently, in Grace v. Barr, 965 F.3d 883, the D.C. Circuit upheld a lower court injunction striking down the application of A-B- to gut protections in initial border screenings.

Although the courts have not overruled A-B- in its entirety, the sum total of these opinions significantly limits its reach. Seeing the writing on the wall, the administration has sought to codify its restrictive views in A-B- in binding federal regulations proposed on June 15. If adopted, the regulations -- dubbed by advocates and scholars as the "death to asylum" -- would leave few to benefit from Congress' carefully enacted protections. Women like Diaz-Reynoso would hardly stand a chance.

Breaking from proper procedure, the administration only permitted the public 30 days to comment on the regulations. However, over 86,000 comments were submitted to the agencies, calling out the cruel and illegal nature of the proposed changes. The timeline for finalizing the rules is unclear. But in the meantime, Diaz-Reynoso and other women like her may just finally get their fair day in court. 