CGRS Win for Domestic Violence Survivors Seeking Asylum
Professor Karen Musalo
The U.S. Court of Appeals for the First Circuit has overturned a lower court decision denying asylum to a domestic violence survivor, reaffirming that refugee women are deserving of protection under U.S. law.
UC Law SF’s Center for Gender & Refugee Studies (CGRS), which argued the case as amicus counsel, applauded the decision in De Pena-Paniagua v. Barr as an important step in restoring the protections former Attorney General Jeff Sessions sought to wipe out in the case known as Matter of A-B-, litigation brought by CGRS.
CGRS supported the petitioner, Jacelys Miguelina De Pena-Paniagua, whose story is not unlike that of CGRS’s client A.B., the woman at the center of the A-B- case. Like A.B., who fled El Salvador following escalating threats from her husband, De Pena sought asylum in the United States after enduring years of horrific domestic violence in the Dominican Republic.
Advocates argued that like A.B., De Pena was failed by the authorities in her home country, who refused to protect her from her abuser. And, like A.B., De Pena did not receive fair and lawful treatment in the United States.
“Emblematic of the Crisis”
“Ms. De Pena’s case is emblematic of the protection crisis created by the former Attorney General’s decision in Matter of A-B-,” said CGRS Legal Director Blaine Bookey. “Although U.S. law has long recognized that women fleeing gender-based persecution can establish eligibility for asylum, the Board of Immigration Appeals used Matter of A-B– to improperly deny Ms. De Pena a fair hearing. We are pleased the First Circuit called out the Board’s unlawful and unprincipled decision.”
De Pena’s case highlights the far-reaching, devastating impacts of Sessions’ ruling, which overturned a legal precedent affirming domestic violence survivors’ right to seek asylum. Since the Matter of A-B- decision came down in 2018, it has been used to single out women’s claims for discriminatory treatment.
According to CGRS, some adjudicators have incorrectly interpreted Matter of A-B- to impose a complete ban on cases involving domestic violence. The First Circuit held that the Board made just such an error in De Pena’s case, by relying on Matter of A-B- to reject her claim without conducting a meaningful examination of her case.
“Women Are a Protected Group”
CGRS Director Karen Musalo applauded the court’s ruling. “At its heart, the First Circuit decision recognizes what should be obvious to anyone and what had been the law of the land before Sessions intervened: That women are a protected group and that in many countries they are persecuted because of their gender and status as women in society. Moreover, the court reiterated a bedrock principle of asylum law that claims for protection cannot be categorically rejected, but must be decided on their individual facts.”
Under U.S. and international law, our government is obligated to extend protection to domestic violence survivors like De Pena who continue to meet the stringent criteria for asylum, Musalo said.
When A.B. learned of the ruling, she expressed hope that the United States will live up to this commitment. “It has caused me great pain to think that my case has been used to justify the rejection of other women like me seeking protection from the violence that plagues our countries,” she said. “The court’s decision gives me faith that the decision in my case will not close the door for others and that my case too will eventually prevail and I will be able to hold my children again in safety.”
About CGRS
CGRS works to defend the fundamental human rights of refugee women, children, LGBT individuals, and others who flee persecution in their home countries. The center combines legal strategies with policy advocacy and human rights interventions to secure greater protections for refugees and asylum seekers.