Wednesday, July 30, 2014
In Martinez v. Holder, Crt No. 12-2424 (January 24, 2014), the Court held that being a former gang member was an immutable characteristic and may serve as the basis for claiming persecution based on a particular social group. The case was remanded back to the Board of immigration Appeals.
In Aquino-Cardova v. Holder, Crt No. 13-1597 (July 17, 2014), the Court held that a person who is related to members of rival gangs who in turn are targeted for violence may qualify as a particular social group based on family ties. This case was also remanded to the BIA.
These opinions appear to signal a shift in the trend in asylum law, wherein the U.S. Government resisted gang-related asylum claims. The Fourth Circuit is largely considered a conservative jurisdiction, and thus these opinions which have a more liberal holding on asylum law are very significant. While it may be early to tell, the cases could signal a trend of loosening the restrictions for aliens applying for asylum because they are escaping gang-related violence in Central America. The cases have come in time to perhaps have some affect on the huge surge of Central Americans fleeing their countries and crossing the U.S. border with Mexico.
If you have a gang-related asylum case, call me for an appointment at (703) 837-8832, or email me at email@example.com.
William J. Kovatch, Jr.
Monday, July 28, 2014
Make no mistake, those who come to the United Stayes this way are doing so illegally and are immediately removable. But, I'm starting to see a trend in how the Administration is treating these migrants. It is in stark contrast to what Immigration authorities were doing just months ago.
In this post, I will talk about the trend for adult males. The surge in unaccompanied children is much more complex and deserves its own post.
Even if an alien has crossed the border illegally and is immediately removable, they still have the right to claim that they have a reasonable fear of persecution. If the claim is made, then an Asylum Officer conducts an interview to see if the fear is credible. If the fear is found credible, then the case gets referred to Immigration Court where the alien gets an opportunity for a full hearing.
The persecution claims from adult males can roughly fall into a few categories: (1) I'm being recruited by gangs, I don't want to join and now they're threatening to kill me; (2) I used to be part of a gang, I quit and they're threatening to kill me; (3) I witnessed a gang-related crime, and they want to kill me; and (4) the police are corrupt and helping the gangs, they wanted me to sell drugs, I refused and now the police want to kill me.
Just three months ago, the first three of these stories were being dismissed by the Asylum Officer.
Things have drastically changed. With the huge surge, the US Government does not have the resources to house all of the migrants who are waiting for the legal process to work itself out. In my opinion, and I have no way of proving this, I believe Asylum Officers have been given instructions to be more liberal with their reasonable fear determinations. This, stories falling in categories 1 through 3, which were summarily denied before are being approved now.
This means more aliens with reasonable fear stories are being released on bond and placed in full Immigration Court proceedings. The bond amount is almost universally $7,500.
The trend in immigration law had been for the US Government to fight the granting of any gang-related asylum claims. As hard-line opinions came out, it left immigration lawyers like me somewhat despondent. We had to advice clients whom we knew were going to be murdered the minute that they arrived in their home country that there was nothing we could do for them.
This surge may wind up being the chance to soften the US Government's stance on gang-related asylum cases. In a way, the softening has already started as the Fourth Circuit, no bastion of bleeding hearts, issued a more liberal opinion on gang-related asylum cases this year.
At any rate, an alien released on bond with a reasonable fear claim should contact a lawyer immediately. Lawyers know how to put together a case with evidence that is more likely to be approved.
To contact me about your case, call (703) 837-8832 or email firstname.lastname@example.org.