By Nancy Miller and Michael Bhotiwihok
The Trump Administration continues to muddy the immigration landscape in the United States through United States Attorney General Sessions’ June 11, 2018 decision on Matter of A-B by determining that victims of domestic violence and gang violence no longer generally qualify for asylum in the United States.
Under United States immigration law, asylum provides protection for individuals who fear persecution in their home countries. Any person who has suffered persecution or fears suffering persecution in his home country based on race, religion, nationality, membership in a particular social group or political opinion may seek protection through asylum in the United States. When the persecutor is a private actor, the asylum applicant must demonstrate that the government is either unwilling or unable to control the private actor.
Of the five protected grounds established under United States asylum law, membership in a particular social group has experienced extensive litigation and varying legal interpretations. As a result, the particular social group category continues to develop and is a flashpoint in United States immigration law.
In 2014 seminal case of Matter of A-R-C-G, the Board of Immigration Appeals recognized new particular social group based on private violence – “married women in Guatemala who are unable to leave their relationship.” Then in Matter of A-B, the Board of Immigration Appeals granted an El Salvadorian women asylum based on her being a victim of domestic violence. The woman was granted asylum based on her membership in a particular social group as a victim of domestic violence.
The Attorney General’s new decision on Matter of A-B addresses whether a victim of private criminal activity constitutes a particular social group for asylum and withholding of removal. The decision spells out a two prong test for an asylum applicant to establish persecution on account of membership in a particular social group. First, membership in a particular social group must be demonstrated. This requirement is met through a group composed of members who share an immutable characteristic, is defined with particularity and is socially distinct. Second, the applicant’s membership in the group must be the central reason for the persecution.
The Attorney General’s action significantly changes the policy on asylum for victims of domestic violence and gang violence, impedes due process and access to the asylum system in the United States.
In the Attorney General’s decision he states that “generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-government actors will not qualify for asylum.” He goes on to justify his position by writing “ the mere fact that a country may have problems effectively policing certain crimes- such as domestic violence or gang violence- or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”
Prior to releasing his new decision, the Attorney General spoke at an Immigration Judge training seminar where he indicated that legitimate asylum cases are buried by the high volume of invalid asylum claims. Presently, there is a growing backlog of 700,000 cases at asylum offices across the United States.
The Attorney General’s new decision severely impacts thousands of domestic violence victims seeking asylum in the United States, especially those with pending cases for the immigration courts. Equally as disturbing is that fact that many women and children could be sent back to their countries to face their abusers and criminal gangs.
While the Attorney General’s new ruling is binding on Immigration Judges and USCIS Asylum Officers, it can be overturned by a federal appellate court if a legal challenge is mounted.
This more stringent shift in asylum requirements comes after the new Zero Tolerance policy for illegal entry on the United States’ borders as well pressure of Immigration Judges to complete a certain number of case per year. The Attorney General has stated that “the world will know what our rules are, and great numbers will no longer undertake this dangerous journey.” Collectively, these changes in immigration policy and enforcement represent the shape of things to come from the Trump Administration’s restrictive and unwelcoming immigration policy.
Asylum is a complex area of immigration law that requires careful legal analysis. An individual who fears returning home because of past persecution or a fear of persecution in his or her native country, should consult with an experienced immigration attorney to determine whether a claim for asylum should be pursued before the United States Citizenship and Immigration Services and/or the Immigration Court.
