New York Lawyer's Legal Updates

Recent Developments In Asylum Law For Victims Of Gang And Domestic Violence

Author: Sheila Barabino, edited by Asylum Lawyer Alena Shautsova

Asylum seekers can make claims that they suffered persecution that is related to one of five categories: race, religion, nationality, political opinion or their particular social group. The Board of Immigration Appeals set a precedent in 2014 that allowed married women who are unable to leave their relationship to 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).” See Matter of A-R-C-G- et al, 26 I&N Dec. 388 (BIA 2014). The 2014 ruling set a precedent that broadened the definition of a social group to include people who shared a common characteristic that endangered them, including a past shared experience, and whose governments would not protect them.

On June 11, 2018, Attorney General Jeff Sessions sufficiently overruled the BIA’s landmark ruling and stated that shared experience did not constitute membership in a particular social group, but membership was contingent upon a common immutable characteristic which should be defined with particularity, and be socially distinct within the society in question. See Effects on New and Existing Asylum Cases

Asylum seekers must now also prove that not only did their government fail to protect them, but they must prove that the government condoned the private actions or that it is unable to protect the victims. The new decisions read, “First, the applicant must demonstrate membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question. And second, the applicant’s membership in that group must be a central reason for her persecution.” This has implications for asylum seekers who are victims of private violence, such as domestic abuse and gang violence, as they must prove that their government was unwilling to protect them. In this judgment, the Attorney General has disregarded the policy that grants asylum based on individual merit.

There is a now a higher degree of proof that must be shown in order to be granted asylum. In addition, due to the establishment of quotas on Immigration judges, now, they will be forced to rule more quickly on cases and cannot grant administrative closure for a case, which may have negative consequences.

For new cases, it is essential to have all necessary documents to prove prosecution of one of the following five grounds: race, religion, nationality, political opinion or their particular social group. The documents can include medical records, police records, articles from the local newspapers, affidavits from witnesses, letters; proof of membership in a particular group or political party, documents confirming activities in different organizations and rallies, and photos. The process is extremely detailed, and it is important to have no documents missing or incorrect, as this could lead to a denied case under the new legislation.

For both new and existing cases, the asylum Declaration Or Affidavit is a personal statement that explains the reason for seeking asylum. This personal statement must include why the person was prosecuted and must correlate with one of the five approved reasons. The statement must also include how his or her government was unable to protect the victim. This includes proving the government’s inability to act.

Importantly, many domestic and gang violence cases may still proceed on a “political opinion” theory. Luckily, Attorney General has not passed a ruling concerning this type of cases yet.

14 June 2018
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