Wednesday, November 7, 2012

Gang-Related Asylum Cases

A few years ago, as I sat in Immigration Court waiting for my case, one of the cases that went before me applied for asylum based on the fear of gang-related violence in Central America.  I listened as the Immigration judge admonished the lawyer to be sure that he read the latest Board of Immigration Appeals case on the subject, In re S-E-G-.  The judge indicated that he would have very little patience for any gang-related asylum claims which did not meet the BIA's new social visibility standard.

With all due respect, the Immigration Judge's attitude on the subject was entirely inappropriate.  To be sure, Immigration Judges are bound by BIA decisions.  But, the BIA is not the final word on interpretations of U.S. immigration law.  Rather, legal interpretations made by the BIA are subject to legal review by the various circuit courts of appeals in the United States.

Since S-E-G, at least two circuits have rejected the BIA's social visibility standard.  Judge Posner of the Seventh Circuit found that the standard "makes no sense," and noted that some groups to which the BIA had extended asylum protection would not meet this new standard.  Specifically, homosexuals in a homophobic society could pass for heterosexuals, and indeed had an incentive to do so to avoid persecution.  Likewise, women who had not undergone female genital mutilation would appear no different from other females in society.  Yet, both social groups had received asylum protection under BIA decisions.

The UN Human Rights Committee has also criticized the BIA's social visibility standard as being inconsistent with UNHRC guidelines.  Such guidelines are often used by the BIA and U.S. courts to interpret U.S. asylum law.

Currently, there is a split among the U.S. circuit courts on the issue of social visibility.  Under these circumstances, it is entirely reasonable for those with gang-related asylum claims to adopt a strategy to press for Supreme Court review.  Although the path would be difficult in some circuits, the possible severity of the consequences of deportation would argue to press for clarity from the highest court on whether this standard should stand.

I go into more detail in this article.

A recent briefing on legal issues surrounding gang-related asylum claims can be found here.

By: Willliam J. Kovatch, Jr.
(703) 837-8832

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