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Successive U.S. administrations have struggled with the question of whether female victims of domestic violence qualify for asylum in this country. Now the Obama administration is arguing that the answer is yes. NPR's Jennifer Ludden reports.

JENNIFER LUDDEN: The arguments are on behalf of a Mexican woman identified in court documents only as L.R. She says she was abused repeatedly by her husband starting in 1987. He would put a gun to her head and force her to have sex. The woman's lawyer, Karen Musalo, says once when her client was pregnant with one of the couple's three children, her husband set fire to the bed she was in.

Professor KAREN MUSALO (University of California): She actually tried to get away from him a number of times by coming to the U.S., and then he came to the U.S. and told her that if she didn't come back, he would kill her family.

LUDDEN: L.R. did go back but came to the U.S. again seeking asylum.

Musalo teaches refugee law at the University of California and has long been involved with gender-based cases. She admits it's a difficult area. Other victims must prove a well-founded fear of persecution based on race, religion, nationality or political opinion. But Musalo's abused Mexican client has to fit another category.

Prof. MUSALO: You know, she has to meet this sort of sticky, amorphous, confusing legal standard to show that she is what is called a member of a particular social group.

LUDDEN: That social group would be battered women, which is, of course, impossibly broad. But in a legal brief in L.R.'s case, the Department of Homeland Security has laid out how this group could be narrowed. Musalo says the requirements are tough but fair.

Prof. MUSALO: What she would have to show is that violence against women is pervasive, and that it's so widely accepted that nobody — neighbors, family members — nobody would intervene or, you know, try to stop it, and the government certainly wouldn't intervene.

LUDDEN: The woman would also have to prove she couldn't find refuge anywhere else in her home country.

The DHS brief is based largely on a similar agency brief from 2004, but then-Attorney General John Ashcroft opposed that position. With the two agencies disagreeing, the cases of other battered women seeking asylum fell into limbo.

Professor KRIS KOBACH (University of Missouri): This is a very problematic way to interpret the law.

LUDDEN: Kris Kobach was a counsel to Ashcroft and now teaches at the University of Missouri. He points out that courts have previously found this definition of persecution to be impermissibly circular.

Prof. KOBACH: Basically the battered woman is saying, I'm being persecuted; that is to say, I am being battered because I'm a member of a group. What's the group? People who are being battered.

LUDDEN: Kobach says if the Obama administration wants to change policy, it'd be better off going through Congress. A number of countries, including Germany, Spain and Sweden, have passed laws recognizing persecution based on gender or sex. But Kobach has other concerns. He worries courts would get it wrong a lot, ruling on something so private. And he believes it could be hard for courts to appear fair.

Prof. KOBACH: It's really hard to draw valid distinctions. In other words, why do we let this person have a valid asylum claim in the United States but not another person who is in very similar circumstances?

LUDDEN: In a statement, the Department of Homeland Security said each case requires scrutiny of the specific threat, and the agency is interested in developing regulations to help do that.

Karen Musalo's Mexican client doesn't go back to court till next spring. But no matter how her case is eventually decided, Musalo says the government's shift is already having an impact. She's been flooded with calls from other battered women, hoping they now have a better chance for gaining asylum.

Jennifer Ludden, NPR News, Washington.

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