New York Lawyer's Legal Updates

Asylum: Family As A Social Group

US Asylum Lawyer Alena Shautsova

Claiming asylum based on persecution as a member of a particular family became more and more widespread in recent years. While the courts, attorneys and applicants keep struggling with the concept, here are some points that one may learn from the recent cases and how the higher, Federal courts consider such claims.

1. Family is recognized as a social group, a member of which may be entitled to an asylum in the US if he/she proves the eligibility otherwise
First, the good news is that it is possible to assert a claim of persecution based on a membership in one’s family. While at the beginning, there were disputes over the topic (if a family is a viable social group for asylum purposes), such disputes are largely resolved and the 1st, 2nd, 4th, and 9th, Circuit courts agree that one’s family may serve as a necessary social group. (See “[M]embership in a nuclear family qualifies as a protected ground for asylum purposes.” Hernandez-Avalos v. Lynch, 784 F.3d 944, 948–49 (4th Cir. 2015) for example).

2. What many struggle with, is the connection between one’s membership in a their family and the persecution. To win one’s asylum case, a person has to show that such a membership was or will be at least one central reason for her persecution. 8 U.S.C. § 1158(b)(1)(B)(i). The applicant “need not show that h[er] family ties provide the central reason or even a dominant central reason for h[er] persecution.” Hernandez-Avalos, 784 F.3d at 949 (internal quotation marks omitted). Rather, she “must demonstrate [only] that these ties are more than an incidental, tangential, superficial, or subordinate reason for h[er] persecution.” Usually, the next step for a judge would be to determine if the family at issue was “visible” in the community at question, and why. The problem here that courts would not grant an asylum claim where family members persecute family members. The persecutor has to be an outsider and target the family members because they are family members. For this reason, for example, family custody disputes (no matter how heated or violent) cannot serve as a basis for asylum. But when gangs, a government or other qualifying group targets a family, then such an asylum claim survive.

3. It is important to remember that in the Matter of L-E-A-, the Board of Immigration Appeals (“BIA”) emphasized that “the fact that a persecutor has threatened an applicant and members of his family does not necessarily mean that the threats were motivated by family ties.” 27 I. & N. Dec. 40, 45 (BIA 2017). “[N]exus is not established simply because a particular social group of family members exists and the family members experience harm.” Id. Moreover, “the fact that a persecutor targets a family member simply as a means to an end is not, by itself, sufficient to establish a claim, especially if the end is not connected to another protected ground.” Id. If inflicting harm on family members is not an independent end, perpetuated “because of an animus against the family,” then we must look to “the reasons that generate the dispute.” Id. at 44–45. “[T]he scope of the motive inquiry necessarily encompasses the context in which a family member is identified for harm and how that relates to the interest in the applicant.” Id. at 46 n.5. It means that t least some judges will look for another protected ground in one’s asylum claim, and just family ties: for example, political opinion, resistance of corruption, etc.

If you need a consultation regarding asylum, please call us at 917-885 -2261.

07 August 2017
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