The First Circuit has analyzed the seeming prohibition on domestic violence-based asylum claims outlined in Matter of A-B- and rejected any such categorical bar. A-B- “presumes that the inability to leave is always caused by the persecution from which the noncitizen seeks haven, and it presumes that no type of persecution can do double duty, both helping to define the particular social group and providing the harm blocking the pathway to that haven. These presumptions strike us as arbitrary on at least two grounds.”
“First, a woman's inability to leave a relationship may be the product of forces other than physical abuse,” such as cultural, societal, religious, economic, or other factors. “Second, threatened physical abuse that precludes departure from a domestic relationship may not always be the same in type or quality as the physical abuse visited upon a woman within the relationship. More importantly, we see no logic or reason behind the assertion that abuse cannot do double duty, both helping to define the group, and providing the basis for a finding of persecution.”
The court also left open the possibility that the petitioner, on remand, could claim to be a member of the social group comprised of “Dominican women.” “But grasping for the larger group hardly strikes us as a fool's errand. In 1985, the BIA recognized that a particular social group is indeed a group of ‘persons all of whom share a common, immutable characteristic,’ including ‘sex.’” “But it is not clear why a larger group defined as ‘women,’ or ‘women in country X’ -- without reference to additional limiting terms -- fails either the ‘particularity’ or ‘social distinction’ requirement. Certainly, it is difficult to think of a country in which women are not viewed as ‘distinct’ from other members of society. In some countries, gender serves as a principal, basic differentiation for assigning social and political status and rights, with women sometimes being compelled to attire and conduct themselves in a manner that signifies and highlights their membership in their group. It is equally difficult to think of a country in which women do not form a "particular" and ‘well-defined’ group of persons. While certain more narrowly-parsed groups might fail to exhibit societal salience, or internally coherent membership, the same does not follow for a group based on a gender.”
The full text of Miguelina de Pena-Panigua v. Barr can be found here: