Domestic violence and gang violence are rampant throughout the world, particularly in Central America. Governments there either don’t care, are too corrupt, or are incapable of addressing these serious issues. Women and children in particular are targets for physical and sexual abuse and marginalization and have nowhere to turn for protection from maltreatment. Often they come to the US fleeing from the violence and abuse they have to endure in their home countries.
Restrictions on Asylum From the Trump Administration
The Trump Administration worked to eliminate the option for victims of gang and domestic violence to seek protection from the US in the form of Political Asylum by issuing the decisions in Matter of A.B. Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (justice.gov) and Matter of L.E.A. Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (justice.gov).
I believe the administration used two underlying justifications for issuing these opinions. First, the Trump Administration believed that most asylum claims were fraudulent, and they were trying to minimize the types of situations that qualify to reach the level of an asylum claim.
Second, the Trump Administration saw issuing these opinions as a way to functionally remove
- domestic and gang violence claims from meeting the persecution definition for Asylum and
- family groups from being a qualified “particular social group” for an Asylum claim.
They were redrawing the lines for what is and what is not an arguable asylum claim in an effort to reduce fraud and abuse of the program and to clarify the lines of what is and is not a valid asylum claim.
Those decisions have now been vacated by the new administration, opening the door for people who have been subjected to domestic and gang violence to seek protection from the US through the Asylum law and policy. But this does not mean that everyone who claims to be the victim of crime in their countries of nationality will be granted Asylum in the US.
Asylum Eligibility Criteria
To win an Asylum case, an applicant must prove that they have been or will be subjected to “persecution” and that the motivation of the persecutors was the victim’s political opinions, religious beliefs, race, national origin or membership in a particular social group (PSG). These are protected grounds.
Persecution comes in many forms. I don’t believe anyone would argue that domestic abuse or gang violence, including the murder of close family members or rape, does not rise to the level of persecution. The real challenge with these cases is proving that the motivation for the persecution was on account of a protected ground.
Notice that crime is not a protected ground in the list above. The only way to make crime into a protected ground is to argue that it falls under membership in a particular social group (PSG).
What Constitutes a Particular Social Group?
Because PSG is not defined in the law, the lines are not clear. The decisions issued by the Trump Administration above severely limited the ability for domestic and gang violence victims to classify themselves into an acceptable PSG for Asylum purposes.
But even with those limitations gone, this is still a huge challenge. Is being part of a family or household a PSG? Is being opposed to the criminal activity and violence of gangs enough to classify someone as a member of a PSG?
There are also issues with whether the government can help protect its citizen from abuse and maltreatment. That is not always clear, particularly when the government is publicly announcing its efforts to combat these issues. Judges are highly persuaded by what governments claim to be doing even if in reality, it’s just for show.
Another issue is whether the person could move to another part of the country and avoid the persecution risk. US Asylum law does not allow for consideration of economic or family factors in determining whether relocation is an option. The applicant must prove that relocation would not help to avoid the persecution risk. If the persecutor is a spouse, this can be very hard to prove, and again economic or other family considerations are not taken into account in this issue.
Finally, an applicant has to prove what they claim happened actually happened. They also have to prove that the government will not or cannot help them, or that the government is itself the one behind the violence. This can be very challenging as well. If an immigration judge believes that some evidence is available and could have been provided but wasn’t, the application can be denied for that reason alone. Also, if the immigration judge does not believe the applicant is being 100% honest, the application can be denied for that reason alone as well.
Are You Eligible For Asylum? Contact Us For a Free Consultation To Find Out
We applaud the administration for making this change and reopening the door for victims of crime to seek protection under the Asylum laws of the United States. We encourage anyone hoping to pursue a claim for Political Asylum as a victim of crime to consult with qualified legal counsel to ensure the application is presented in a way to maximize chances for success.
About Davis & Associates:
Davis & Associates is the immigration law firm of choice in Houston & North Texas including Dallas, Fort Worth, Plano, Frisco, McKinney and surrounding areas. Their attorneys provide expert legal counsel for all aspects of immigration law, including deportation defense, writs of habeas corpus and mandamus, family-sponsored immigration, employment-sponsored immigration, investment immigration, employer compliance, temporary visas for work and college, permanent residence, naturalization, consular visa processing, waivers, and appeals. Attorney Garry L. Davis is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.
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