New York Lawyer's Legal Updates

Asylum For Victims of Domestic Violence

Author: New York Asylum Attorney Alena Shautsova

A person may successfully seek asylum in the US if he/she can demonstrate that the asserted claims are based on political opinion, religious beliefs, race, nationality or membership in a particular social group.

This last category is the most open one for interpretation. In the past, it has been recognized that members of the same family may constitute “particular social group.” In recent cases, BIA and Federal Court clarified the legal analysis that the courts should be using in determining whether a certain organization or a group of people can pass the test for asylum- worthy social group. For legal analysis of social visibility standard see: Not Seeing Eye to Eye on Social “Visibility”

For years, victims of domestic violence who escaped their abusive societies and families had hard time showing that they are entitled to the protection of the US laws. In case of an abuser being a US citizen or permanent resident, the laws would allow such persons to use a U visa or VAWA self-petitions. Asylum applicants, however, often were met with a denial and explanations that their claims did not fit into the International and US asylum law system.

However, in the recent BIA decision Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) it was held that “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012). The BIA notes, however, that fact specific analysis is required in each case to determine if a person’s claim can be interpreted as the one worthy of consideration. Please note that the definition of the “group” in this case was carefully crafted by the attorneys, because the group cannot be defined by the fact that the applicant is subject to domestic violence. See Matter of W-G-R-, 26 I&N Dec. at 215 (noting that circuit courts “have long recognized that a social group must have ‘defined boundaries’ or a ‘limiting characteristic,’ other than the risk of being persecuted. As such, for a lay person who found himself/herself in a terrible situation and is applying for asylum, it is almost impossible sometimes on his/her own to present a winnable claim.

It is not enough to present the facts and evidence of one’s case; one’s claim must also be recognizable by courts and be based on the recent case law developments.

Please also see Asylum TIPS: AVOID NOID!

06 September 2014
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