New York Lawyer's Legal Updates

Tips To Remember When Filing For Asylum: Changing Law And Persecution

Author: NYC Asylum Immigration Lawyer Alena Shautsova

The US Asylum process has drastically changed throughout the past four years, mostly becoming stricter, less reasonable, and introducing a Russian Roulette style elimination of the recognition of certain social groups. It has always been the position of the United States, as with most countries, that economic asylees or climate change asylees will not be considered for asylum applications. However, Asylum, based on discrimination of a person solely because of inherently human characteristics that they cannot change without compromising their dignity, has always been and will always be the forefront of US asylum law. Therefore, the manner in which presidential proclamations or policy memoranda issued by the Attorney General decide one morning that victims of domestic violence will no longer be recognized as members of a particular social group is indefensible. Especially when the chances of such a person being tortured upon return to her home country with a track record for not taking domestic violence complaints seriously is greater than 10%. Almost 60 years in the making, the Asylum process has enjoyed mostly an expansion of recognized social groups, so it is logical to see a slight shift from expansion to contraction.

Unfortunately, where previously it was customary to allow those who already applied for immigration benefits under a specific category or criteria to be “grandfathered-in” and subject to the previous law they could file under, the current administration has begun what is known as a retroactive application of the law. Now, a person who filed for Asylum under the membership of a social group and made only these arguments for their asylum claim because that was all that was needed at the time, will have no claim going forward if their group is disowned by the powers that be.

The good news is, while memberships of social groups are ever-changing and subject to the whims of the administration, treaty law, and domestic laws are not subject to such rapid change. The reason is a separation between different types of law, most often referred to as “soft law” and “hard law.” Memberships of certain social groups, especially newer ones, are likely to be “soft law.” In contrast, Asylum, based on one of the other four (4) basis, is more likely to be “hard law.” Though it is not impossible, it will be tough for any administration to argue that they do not recognize a person’s declared race, religion, national origin, or political opinion as such. The most reliable law that is binding, or judiciable in US Asylum law is the International treaty law the US has ratified or acceded. The next strongest binding law is US Domestic laws: statutes that have passed through Congress, federal rules and regulations. The BIA is tasked with interpreting the federal rules and regulations, and their decisions provide what is known as case law. Afterward, Attorney General Certifications and Opinions, and Presidential proclamations and executive orders can only operate within the “grey areas” of Asylum law in terms of who is eligible for the benefits of the US’ protection in an asylum proceeding.

Field manuals and internal agency guidelines are important to know and relevant at the time of adjudication. Still, they are subject to change based on the President and the Attorney General’s actions. Therefore, field manuals and internal agency guidelines can be considered “soft law.” Still relevant, but not as strong in a legal sense as international treaties and US domestic law.

So, what does all this mean for an Asylum case and someone who wants to apply for Asylum?

It means that when you are drafting your affidavits, telling your story of what happened to you, assembling your evidence, and preparing briefs or motions to the Court, you have to keep in mind the “hard law” points and the “soft law” points. Many times when a client is telling me their story, there is a point they want to make because it is important to them, it is a moment that caused them grief, and they want to explain why because it was traumatizing. The point may not fit into the “hard law” and be subject to “soft law” changes. However, in a legal sense, there is a different part of their story, which is also traumatizing, but the client cannot get past the first point because it is so painful. Grief and pain from a traumatic experience is something that everyone experiences such needs to work through, but the asylum procedure is not the proper venue for that. The asylum process is a venue for solidifying a person’s safety against a particular set of injustices. An attorney’s job is to pull out the relevant portion of your story so that your case is clear, present the case clearly, and prepare a client to explain the case clearly. So for the first example, the membership of a particular social group was a female victim of domestic violence. Another social group that is solidified into “hard law” is a female. In some countries, females are less likely to be protected by their governments than males. If a female reports a crime, the report is not taken seriously. As such, her risk for retaliation and a lack of protection from her government could put her at more than a 10% chance of being tortured, which the US recognizes to include both physical and mental harm. Both claims can coexist, but if you never explicitly raise the “hard law” claim at the time when it is applicable, you may not be able to bring it up at a later date when the narrower more specific claim is rejected from a lack of “hard law.” It is also important to know that a person’s objection to certain customs, “norms” and treatment may be regarded as political opinions in the United States, giving rise to a separate ground in the asylum process. For example, the same woman, who cannot find justice for the domestic violence she suffers and who is opposing her country’s treatment of victims of domestic violence, may have a valid political opinion based asylum claims. And that claim may be stronger than her social group claim.

Perhaps, the most unsettled area of asylum law is the case law related to the past persecution: why in one case the past persecution is found and in another one, it was not, however, the facts of the case were almost identical?! The answer would lie, like in most situations, in detail. Past persecution is an independent basis for asylum because, in some cases, “the favorable exercise of discretion is warranted for humanitarian reasons even if there is little likelihood of future persecution.” Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir. 2005) (quoting Matter of Chen, 20 I. & N. Dec. 16, 18-19 (BIA 1989)); accord Vongsakdy v. I.N.S., 171 F.3d 1203, 1206-07 (9th Cir. 1999). To establish past persecution, an applicant must show (i) that he was targeted for mistreatment “on account of one of the statutorily-protected grounds,” (ii) that the “incident, or incidents” of mistreatment “rise to the level of persecution,” and (iii) that the persecution was “committed by the government or forces the government is either unable or unwilling to control.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003). The hardest criterion to satisfy here is a showing that the threats and/or harm were serious. As one court put it: “While this Court has not yet drawn a precise line concerning where a simple beating ends and persecution begins, our cases suggest that isolated incidents that do not result in serious injury do not rise to the level of persecution.” Voci v. Att’y Gen. U.S., 409 F.3d 607, 615 (3d Cir. 2005). In addition, it is “well settled that persecution does not encompass all forms of unfair, unjust, or even unlawful treatment.” Chavarria, 446 F.3d at 518 (citing Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993)). However, it is equally settled that persecution includes “death threats, involuntary confinement, torture, and other severe affronts to the life or freedom of the applicant.” Gomez-Zuluaga, 527 F.3d at 341 (citing Lin v. I.N.S., 238 F.3d 239, 244 (3d Cir. 2001)); Chavarria, 446 F.3d at 518.

Psychological harm can constitute persecution as well, not only physical harm. An emotional persecution case could be recognized where a person persecutes someone close to an applicant, such as spouse, parent, child or another relative, with the intended purpose of causing emotional harm to the applicant, but does not directly harm the applicant himself.” Matter of A-K-, 24 I&N Dec. 275 (BIA 2007). Constant fear for prolonged periods of time, threats to family members, forceful religious practices may all be recognized as psychological harm rising to the level of persecution.

Persecution may also be in a form of harm to the third parties or family members, as well as severe economic disadvantage or deprivation of life essentials: excessive fines, deprivation of employment motivated by protected ground, economic extortion and threat of physical violence, confiscation of the property, etc.

If you have questions regarding asylum claims, reserve your confidential consultation with an attorney by calling 917-885-2261.

29 April 2020
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