Victims of Domestic Violence, Gang-related Violence, and Violence based on Family Relationships are once again eligible for Asylum in the United States

There is good news for asylum seekers! A recent decision by the Biden administration removed restrictions on the availability of asylum for people who are fleeing their countries because of domestic violence, gang-related violence, and violence based on family relationships.

These restrictions on asylum were made via decisions in court cases (known as, Matter of A-B- I, Matter of A-B- II, and Matter of L-E-A- II) and were put into place by the Trump administration in an attempt to significantly reduce the number of immigrants arriving at the southern border who can qualify for asylum in the United States. The restrictions impacted mostly immigrants from central and south America where gang violence and domestic violence are more prevalent.

How do I qualify for Asylum in the United States?

Asylum is a protection that is granted to those who can establish that they are “refugees” as defined in the Immigration and Nationality Act (“INA”). Immigrants who are granted asylum (whether they entered the United States legally or illegally) can live and work in the United States, petition for family members to come to the United States, apply for permanent residency, and eventually, become United States Citizens.

A person can establish that he or she is a “refugee” under the INA, and thus qualifies for asylum, by showing that he or she (1) is outside his/her country of nationality; (2) is unable or unwilling to return to that country; (3) because he or she has suffered past persecution or has a “well-founded fear” of future persecution; (4) the persecution was suffered or will be suffered on account of the five statutorily protected grounds (see below); and (5) the persecutor is either the government or an actor the government is unable or unwilling to control.

The five statutorily protected grounds include 1) religion, 2) nationality, 3) race, 4) political opinion, or 5) membership in a particular social group. A person must suffer persecution or fear future persecution on account of at least one of these five protected grounds in order to be successful in their asylum claim. On account of means that a person’s protected ground was or will be a central reason for the persecution suffered.

What qualifies as a PSG for asylum eligibility?

Proving persecution on account of “membership in a particular social group” however, has proved to be the most problematic of them all. The term “particular social group” is ambiguous and over the years there has been a lot of debate as to what those words actually mean.

What qualifies as a “particular social group” for asylum eligibility is not defined by statute or regulation. Therefore, attorneys and judges use rulings in immigration court cases for guidance in deciding when a person qualifies for asylum based on their “membership in a particular social group”.

If a person must suffer persecution on account of at least one of the five protected grounds mentioned above to be eligible for asylum, then under which ground can victims of domestic violence and gang violence make their asylum claim?

Typically, a central reason why a person is abused by a domestic partner or suffers brutal gang violence is not because of their religion, nationality, or race. Is a person’s political opinion a central reason for the perpetration of domestic violence or gang violence against them? Sometimes, yes. However, most of the time the best choice for victims of domestic violence or gang violence is to apply for asylum based on “membership in a particular social group”.

Decision on June 16, 2021 restored PSG for victims of domestic violence and gang violence

On June 16, 2021, Attorney General Merrick Garland issued an order vacating immigration decisions made during the Trump administration by former Attorneys General Jeff Sessions, Jeffrey Rosen, and William Barr. Specifically, these decisions limited the circumstances under which a person could be granted asylum based on a claim of persecution on account ofmembership in a particular social group”. Victims of domestic violence and gang-related violence coming to the United States from south and central America were frequently denied asylum because of these Trump-era decisions.

The immigration decisions vacated by Attorney General Garland include Matter of A-B, 27 I&N Dec.316 (A.G. 2018) (“A-B- I”) and another opinion in the same case issued in 2021, Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”). Matter of A-B was a case that involved a Salvadoran woman who claimed that she was eligible for asylum because she was persecuted on account of her membership in the “particular social group” of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common” with their partners. Matter of A-B- I and A-B- II collectively declared that in general, being a victim of private (non-governmental) criminal activity – such as domestic violence or gang violence – does not constitute a cognizable “particular social group” for purposes of qualifying for asylum.

In Matter of A-B- II, Acting Attorney General Jeffrey Rosen attempted to further limit when victims of private violence could qualify for asylum. Rosen gave instructions regarding the fifth requirement for asylum eligibility under the INA, namely, that the persecutor must be either the government or an actor the government is unable or unwilling to control. In Matter of A-B- II, Rosen held that the government’s failure to protect a victim from violence at the hands of a private actor alone isn’t enough for that victim to qualify for asylum. Instead, the government’s failure has to be so severe that it constitutes a breach of its duty to protect its citizens, or the government must “actively harm the victim or condone the harm”.

Attorney General Garland vacated both Matter of A-B- I and Matter of A-B- II as those decisions made it almost impossible for victims of domestic violence or gang violence to be granted asylum in the United States.

Garland also vacated another harmful decision by former Attorney General William Barr in Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”). Matter of L-E-A- was a case that involved a citizen of Mexico who claimed that he was eligible for asylum because he was being persecuted by a criminal gang on account of his membership in the “particular social group” defined as the “immediate family of his father,” who owned a store targeted by a local drug cartel. In that case, The Board of Immigration Appeals (“BIA”) held that the respondent’s relationship to his father established his membership in the particular social group “immediate family of his father.” In Matter of L-E-A- II, Attorney General Barr overturned the BIA’s decision and held that a person’s immediate family members do not constitute a “particular social group” for purposes of qualifying for asylum.

Now—in light of Attorney General Garland’s order vacating Matter of A-B- I, Matter of A-B- II, and Matter of L-E-A- II—those who have suffered violence in their home country at the hands of their domestic partners, gang members, or because of their relationship to their family members, have a much better chance of being granted asylum in the United States based on their membership in a “particular social group”.

Attorney General Garland made this important decision pursuant to his power of “Certification” under the INA— which allows the Attorney General to review decisions by the BIA and overrule or affirm them. The Attorney General has final say regarding all immigration matters. Therefore, Garland was able to overrule the decisions of the former Attorneys General and make new decisions that will help ensure that every asylum claim is now fairly decided.

In February, President Biden signed Executive Order No. 14010, directing the Justice Department and the Department of Homeland Security to engage in the rulemaking process—which will allow the public to comment on any proposed rules—to determine the circumstances in which a person should be considered a member of a “particular social group” for asylum eligibility. When those rules are published, they will govern the issue of “particular social group” going forward.

Until those new rules are created, Attorney General Garland instructed that immigration judges and the BIA must follow prior precedent when deciding asylum cases, including the BIA’s 2017 decision in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) (“L-E-A- I”) and Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). In L-E-A- I, as mentioned earlier, the BIA held that a person’s relationship to their immediate family members can constitute a particular social group. In Matter of A-R-C-G-, the BIA held that “married women in Guatemala who are unable to leave their relationship” could constitute a cognizable “particular social group” for a grant of asylum.

Garland’s order on June 16, 2021, has restored the hope of asylum seekers and will help save the lives of many men, women, and children who have no protection and no choice but to flee their home countries because of domestic violence and gang violence.

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