New York Lawyer's Legal Updates

Gender Based Asylum Claims

Author: USA Asylum lawyer Alena Shautsova

Immigration laws allow an individual to claim asylum based on political opinion, religion, nationality, membership in a particular social group, and/or race. At a first glance, the law does not provide a special protection to individuals who claim persecution based on gender. In other words, it is not possible to qualify for an asylum if one claims he/she deserves it based on being a male or female.

However, in a legal world, the things are more complicated than plain words. In fact, in the world of U.S. asylum claims, recently, it became possible to claim and qualify for asylum based on gender, if one “frames” their claim in the right legal way.

For example, let’s say Ms. X comes from one of the countries in the South America where she was mistreated by her boyfriend, the father of the children. She could not ask for the protection from the government authorities in her countries because they prefer not to interfere into the “domestic disputes”, and she would not be able to hide from her abuser in any other parts of the countries, because she could not really leave the house without being found and physically punished. Would these facts be sufficient for X to receive asylum in the United States? Can she win her case just because she is an abused female?

Different courts and judges, at different times and in different forums would answer this question differently. The recent trend, however, is to treat Ms. X as a members of a particular social group, but the way this group is described is the “legal magic” that would determine the success of X’s application. The social group has to be definite enough to include a limited, but “visible” amount of members. And here, it seems that the definition process looks more like a Russian roulette than a legal science. For example, the DHS agreed that “Mexican women in domestic relationships who are unable to leave”; and (2) “Mexican women who are viewed as property by virtue of their positions in a domestic relationship” may constitute a particular social group. Likewise, “married women in Guatemala who are unable to leave their relationship” constitute a particular social group. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). However, a finding of a particular social group was denied to “Salvadoran women in intimate relationships with partners who view them as property.” Vega-Ayala v. Lynch (1st Circuit, 8/10/2016). In Paloka v. Holder (2nd Circuit, 8/7/2014) the court remanded (send the case back to the first court) to see if “young Albanian women” is a cognizable social group. In Gjura v. Holder (2nd Circuit, 9/25/2012) the court held that young, unmarried Albanian women who are at risk of being kidnapped and forced into prostitution do not constitute a social group for asylum purposes and denied the petitioner's asylum and withholding applications.

As such, based on the fact that X was not married to her abuser, the prospects of her success are slim, unless, of course, she would present very strong factors to show why she could not leave her abuser and that her relationship was treated as a marriage.

26 September 2016
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