New York Lawyer's Legal Updates

Asylum: Can I Win Asylum Because My Family Is Targeted By Gangs?

Author: Asylum lawyer Alena Shautsova

I have written in the past about the various developments in the area of asylum law as it relates to the claims of persecution based on family as a social group. I would say that now, there are two definite trends how those claims are addressed by the courts and Immigration Judges. Based on numerous denials of persecution by victims of gang violence, such claims sometimes serve as the only resort for those who fear harm in their home countries. It is particularly true for nationals of Central America.

So, the first trend would be to accept family as a social group and if an asylum applicant may prove that family is targeted because they are a family, he/she may win the asylum application. It is still not easy to win such a case, but it is easier because such analysis does not require an applicant to demonstrate that the underlying reasons for persecution in themselves constitute protected grounds. The opponents of this theory state it is overly board, and as such almost anyone may claim asylum in the United States, and that Congress did not intend this to happen.

However, there are cases from both Federal courts and Board of Immigration Appeals, that require more than allegation of a family persecution. Under this second analysis, a person has to demonstrate that a family was targeted due to protected grounds: religion, political opinion, nationality, membership in a social group… For example, in Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012) and in Thuri v. Ashcroft, 380 F.3d 788, 792—93 (5th Cir. 2004) courts held that a “gang member’s demands for money reflect[] his pursuit of a criminal purpose, which is not a protected ground for asylum.” Such an alysis completely foregoes the fact that some families are being systematically targeted because they are families: maybe they stand out as a particularly rich, or having the most land, or having the most wanted land, etc. Maybe such families are targeted because of some sort of “vendetta” between them and then gangs… Even BIA recognized that a family may constitute a social group. Matter of L-E-A-, Respondent, 27 I. & N. Dec. 40, 42 (BIA 2017).

The chances of success in brining such a claim will largely depend on the law in the jurisdiction where the claim is brought until and unless the United States Supreme Court will clarify the law as it related to family as a social group.

If you have questions regarding as asylum claim, contact our office at 917-885-2261 or by emailing us at office@shautsova.com.

24 August 2017
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