A recent ruling by U.S. Attorney Jeff Sessions will have a profound effect on domestic violence victims and asylum petitions. Four years ago, a woman known in court filings only by her initials, A.B., fled her home country of El Salvador after more than a decade of abuse by her ex-husband. He had beaten her with beer bottles and threatened to hang her from the roof of their home; when she was pregnant, his physical abuse intensified. She sought help from the police, but said they didn't do anything. When her children were older, she picked up and moved to another part of the country, but her husband tracked her down and raped her to assert his power over her.
Eventually, she made the difficult journey to the U.S. border and crossed illegally into Texas. She petitioned for asylum in this country. She was denied asylum, appealed, and won, but the judge in her case, known for denying asylum claims, still did not grant her asylum. Attorney Jeff Sessions selected A.B.'s case for review, and his opinion struck a powerful blow to thousands of other asylum seekers in a similar position: fleeing domestic violence in their own country and seeking safety in this one.
Attorney General Sessions in this case overruled Matter of A-R-C-G, a 2014 case decided by the Board of Immigration Appeals (BIA). In that case, the Board decided that, depending on the facts of a given case and the evidence presented in that case, "married women in Guatemala who are unable to leave their relationship" could be considered a particular social group for the purposes of seeking asylum.
Attorney General Sessions reached a decision directly opposed to that in Matter of A-R-C-G in the case at hand. Instead, he concluded that those women who sought asylum on the basis of their status as El Salvadoran women who were unable to leave a relationship in which they had children in common with a partner did not constitute a "particular social group." The case was sent back to the immigration judge who originally heard the case. If the judge again denies the petition, an appeal to the BIA would be necessary before Ms. A.B. could ask the United States Court of Appeals for the Fourth Circuit to review the matter.
The Attorney General ruled that asylum claims cannot be based on private criminal activity unless it meets a certain legal threshold. Further, he held that independent of the harm asserted by the petitioner, the petitioner must be a member of a cognizable particular social group in order to qualify for asylum.
The Attorney General's opinion has clarified this administration's stance on issues that affect many asylum seekers. First and foremost, being a victim of domestic violence or gang violence, no matter how grievous or regular, is not a valid basis for a grant of asylum. Also, the requirement of particularity will probably be missing in those social groups, like poor women, who are likely to be victims of private criminal activity, if only because many groups are vulnerable to such criminal activity.
If someone petitioning for asylum is unable to show that their abuse is based on their membership in a cognizable particular social group, their asylum claim will fail. Claiming abuse because of being a wife or partner will not be sufficient.
If an abuse victim suffered violence at the hands of a private actor like a romantic partner or spouse, she or he must show that the government condoned the abusive action or was powerless to keep the private actor from being abusive and was unable to protect the victim.
Obviously, the burden on asylum seekers who fled to this country as a result of domestic or gang violence has now increased. The complexity of the requirements asylum seekers must meet in order to be granted relief means that the assistance of an experienced immigration law attorney is now more essential than ever.
Preparation will be key to increasing the chances of an asylum claim succeeding. A skilled attorney can secure the expert testimony that will likely be needed regarding the specifics of the home country, including culture, social groups, and how the police operate. While it may be difficult to gather physical evidence, doing so will do a great deal to bolster an asylum claim.
It is also very important to have an attorney's assistance in preparing asylum declarations. An applicant may not realize what information is most essential to present and what is less relevant, so an attorney can help develop the most effective possible declaration. Lastly, an attorney who has worked with many other asylum seekers is in the best condition to help an applicant to prepare for questioning by immigration officials or judges.
If you need to claim asylum, or if you have a claim pending but do not have an attorney helping you, we invite you to contact our law office.
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