In the Matter of K-C-
At the request of the Board of Immigration Appeals (BIA), IRLI has filed an important brief (attached here) arguing that U.S. asylum and refugee law does not extend to most claims of persecution based on acts of domestic violence committed by private persons in an overseas household. IRLI filed the amicus brief on October 18, 2011 on behalf of the Federation for American Immigration Reform (FAIR). FAIR is a longtime critic of federal government failure to protect the asylum system against abusive or fraudulent claims by aliens who seek to bypass the lengthy application procedures required for persons who seek to immigrate to the United States for economic or personal advantage.
The test case, Matter of K-C-, came to the BIA from the York, Pennsylvania immigration court. K-C-, a young woman from an unidentifed Latin American country, illegally crossed the US-Mexico border around February 2007, was apprehended and gave a false name and biodata. She filed a defensive asylum claim after being placed in depotation proceedings. K-C- testified that she had been living in a common-law marriage for 3 years when her boyfriend began to drink heavily and threaten and physically abuse her. K-C- reported the abuse to the local police, who did not take action against the boyfriend, a lout with no connection to the government. K-C- moved out and went to live with family members in another part of the country. An attempted reconciliation failed. The drunken boyfriend continued to threaten K-C-, whose family members arranged for her to be smuggled through Mexico to the US.
The BIA has been attempting for more than ten years, notably in Matter of R-A-, to craft a definition of domestic violence that would constitute persecution as defined under international refugee jurisprudence. The attempts have been unsuccessful, generally because they would require the US government to ignore one or more of the mandatory elements of an asylum claim, as defined in Matter of Acosta, the 1985 BIA decision that is widely recognized by other English-speaking nations which offer protection to refugees.
IRLI argued that private domestic violence of this kind could not meet the statutory standard for protection, because K-C- was not being persecuted on account of any of the five recognized grounds under international law: race, religion, political opinion, national origin, or membership in a particular social group. The drunken violent boyfriend was a mere criminal, not a persecutor under international law.
The immigration courts cannot grant an asylum benefit based on mere personal sympathy for foreign victims of crime. IRLI suggested that the Department of Homeland Security could instead grant temporary deferred action in truly exceptional dire circumstances, without rewarding the abused illegal aliens with permanent US residence and full welfare benefits, a perverse policy which has only made it more difficult for bona fide refugees to obtain lifesaving protections.