Note: Insufficient Government Protection: The Inescapable Element in Domestic Violence Asylum Cases

By Elsa M. Bullard. Full text here.

Domestic violence asylum applicants have spent years struggling to demonstrate they are a particular social group within the meaning of refugee statutes and thus worthy of asylum in the United States. Recent statements by the Department of Homeland Security (DHS) and a favorable outcome for the applicant in In re L.R. in December 2010 effectively removed the hurdle of defining a particular social group. These changes do not mean, however, that victims of domestic violence should look forward to clear access to asylum in the United States. Courts, practitioners, and advocates must now focus on another central element in domestic violence asylum cases—proving a government unable or unwilling to protect the applicant. The Note predicts a shift in focus from particular social group formulation to the governmental protection element of asylum as it relates to domestic violence applicants. The Note argues that DHS should aid this shift in focus by establishing a framework for analyzing this element. It argues that DHS should adopt a test inquiring as to the applicant’s reasonable access to government protection, and proposes ten factors. This test would create an applicant-centered approach to the element of governmental protection that would provide domestic violence asylum applicants the opportunity to obtain and present the variety of evidence needed to gain asylum.