Asylum for Victims of Domestic Abuse

Some of my proudest moments representing clients before Immigration Courts has been when I have won asylum for women from Central America who have been the victims of domestic abuse.  Unfortunately, in the Trump Administration's crack down on immigration, the future of such cases are seriously in doubt. 

Through asylum, the United States grants protection to people who find their life or well-being in jeopardy in their home country.  The legal standard for asylum is whether a person was a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group.

Congress established the asylum standards through the Refugee Act of 1980.  In that Act, Congress did not define the term "particular social group."  The term, therefore, has been the subject of much litigation in asylum cases.  An entire set of cases from the Board of Immigration Appeals ("BIA), which is the administrative agency that normally hears appeals from Immigration Court decisions, has addressed this term, and developed case law establishing how it is to be defined in individual asylum cases.

In 2014, the "BIA" issued a decision in a case called Matter of A-R-C-G-.  Through that case, the BIA held that "married women in Guatemala who are unable to leave their relationship" constituted an appropriate particular social group upon which an asylum claim can be based.  After the BIA issued its decision, immigration lawyers would slightly modify the approved particular social group to fit the facts of their case.  Thus, a lawyer could define the particular social group to fit the country of origin, such as "married women from El Salvador . . . ."  Or, if the woman was in a committed relationship, but not legally married, the particular social group could be defined as "women in a committed relationship . . . ."

In June of 2018, however, Attorney General Jeff Sessions issued a decision in the immigration appeal of Matter of A-B-.  By statute, the Attorney General can choose to adjudicate an appeal from the Immigration Court himself, and issue a decision that is binding on all Immigration Judges.  Like Matter of A-R-C-G-, Matter of A-B- involved an asylum claim based on a Central American woman who was the victim of domestic violence.  The Attorney General overruled Matter of A-R-C-G-, contending that the BIA did not do an appropriate analysis of the term "particular social group."  Instead, according to the Attorney General, the BIA merely issued a decision based on a concession by both parties.  That is, the lawyers from the Department of Homeland Security, who represent the U.S. Government in appeals from Immigration Courts, served under the Obama Administration, and agreed with the asylum applicant that "married women in Guatemala who are unable to leave their relationship" was an appropriate particular social group.  Attorney General Sessions believed that it was not appropriate for a decision which did not go through the full analysis as set forth in the previous BIA to establish a general rule concerning the particular social group.

While that holding alone was dispositive of the case in Matter of A-B-, the Attorney General went further, proclaiming that any case based on private criminal activity, such as domestic violence and gang activity, were not likely to qualify for asylum.  This statement was not necessary to decide the case at hand, and thus lawyers would call it dicta.  Dicta is not a binding principle of law for lower courts.  However, many Immigration Judges read the Attorney General's statement as more than just mere dicta, and began using it as a rule to decline asylum applications based on domestic violence.

Matter of A-B- had consequences beyond the Immigration Court context.  Pursuant to U.S. law, if an alien is apprehended within 100 miles of the border less than 14 days after entering the United States, that alien can be expeditiously removed from the United States by an officer from Customs and Border Protection.  This is called expedited removal.  However, if that alien has a credible fear of persecution if returned to his or her home country, expedited removal does not apply, and the alien is referred to Immigration Court to have an asylum petition adjudicated.

U.S. Citizenship and Immigration Services ("USCIS"), which administers asylum claims made outside of the Immigration Court system, created a process to determine when an alien has a credible fear of persecution.  Called "credible fear determinations," an asylum officer interviews the alien in a non-adversarial setting, and determines if that alien would likely be successful in filing an asylum application.  After Matter of A-B-, USCIS issued policy guidance that victims of gang violence or domestic violence could not receive a positive credible fear determination.

Twelve aliens who had been denied a positive credible fear determination sued the Attorney General in the U.S. District Court for the District of Columbia.  In December of 2018, U.S. District Judge Emmet G. Sullivan issued a decision in the case of Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).  Judge Sullivan held that the general rule that an asylum applicant whose claim was based on domestic violence or gang violence could not qualify for a positive credible fear determination was arbitrary and capricious.  He therefore issued an injunction preventing the U.S. Government from applying that portion of Matter of A-B- in credible fear determinations.  The Government has, of course, appealed from this decision.

Specifically, the Judge found that there was no legal basis for a categorical denial of asylum claims based on domestic violence or gang related activities.  Furthermore, such  a rule would run counter to the individualized analysis required in every case by the statute.

Thus, the future of asylum claims based on domestic violence and gang violence remains in question.  On the one hand, a federal court has found a categorical ban, at least in the context of credible fear determinations, to be arbitrary and capricious.  On the other hand, the Trump Administration continues to fight for the ability to deny such asylum claims.

At the heart of Attorney General Sessions' reasoning was that domestic violence and gang-related activities were private crimes, and not the result of government action.  The basis of this argument is that asylum is meant to address persecution perpetrated by a foreign government, not a private citizen.  However, the legal standard in asylum cases is whether the persecution would be perpetrated by the government, or whether the government would be unable or unwilling to control the actions of the perpetrators.

In this regard, the argument in favor of granting asylum to victims of domestic violence centers on proving that the society is one where domestic violence is accepted, and which the government does nothing to address the problem, or is unable to address the problem.  That is, the government cannot turn a blind eye to the problem of domestic violence.

With respect to Central American countries, such as Honduras and El Salvador, the argument has been that the culture of machismo dominates society.  That is, women in such cultures are viewed as mere property of the male with whom they have a relationship.  Therefore, the government does not interfere when a woman becomes the victim of domestic violence.  Whether the applicant can prevail depends on the quality of evidence that can be presented demonstrating a patriarchal culture, and the acceptance of violence against women as a norm.  Assuming the applicant can demonstrate such government inaction on the issue of domestic violence, that applicant should be able to receive the protection of the United States through asylum.

By: William J. Kovatch, Jr.

Problems with Gang-Related Asylum Cases

Gang related asylum cases present one of the biggest challenges to immigration attorneys. But they also represent one of the largest categories of asylum claims.

Many times, clients and prospective clients come into the office with the expectation that because they were victims of gang violence in their home country, that they should receive protection in the United States. But this is rarely the case.

As many immigration judges are quick to point out, asylum law is not meant to grant protection from general criminality. To receive asylum protection, and applicant must have a reasonable fear of persecution based on one of the five protected reasons. They are: race, religion, nationality, political opinion, or membership in a particular social group.

Often, advocating for a gang related asylum case involves trying to place the applicant in some particular social group. However, this category is not meant to be a catchall category. As recent case law has demonstrated, the group cannot be defined as being too large as to include a broad segment of society. There must be some boundary to the group. There must be something about this group that sets it apart from the rest of society. And the members of this group must see themselves as some kind of social unit.

Add to the complication the fact that there are 12 different federal circuits who review immigration court decisions. The result is great variety and what is an acceptable particular social group.

Young men who have been recruited by the gangs, but who have resisted such recruitment, for example, has been recognized as a viable particular social group in some circuits. But other circuits reject the category. Likewise, witnesses providing testimony against gang violence has been recognized by some circuits, but rejected by others.

This patchwork of decisions addressing what makes up a particular social group when it comes to gang-related violence has created a rather peculiar situation. Family ties are recognized as a valid basis upon which to build a particular social group. Thus, it is possible that family members of a person targeted for gang violence may qualify as a particular social group, while the person who is actually targeted for the gang violence will not qualify for asylum protection.

What is clear however is that the victims of the gang related violence need to establish some reason why the gang has targeted them, that sets them apart from the rest of their society. This can often be difficult for applicants who come from gang ravaged countries, like those of Central America.

One way around this problem is to make the claim that the applicant is being persecuted because of an imputed political opinion. Gangs in Central America at times operate much like governments. They control particular territories, charge taxes or rent for the people who live in their territories or do business in their territories, and protect their territories fiercely. Gangs have also been known to protect their authority, engaging in extreme violence against anyone who questions them. Gangs may also target a person for violence if the gang believes that the person is affiliated with a rival gang. Applicants who have been able to paint their case as one of a struggle against the power and authority of the gangs, and thus a case of an imputed political opinion, have met with some success in progressive federal circuits, such as the Ninth Circuit.

Certainly an argument can be made that United States is in a large way responsible for the uncontrollable gang situation in the northern triangle of El Salvador, Guatemala and Honduras. United States chooses to deport people after they have spent time in prison, where they have picked up their affiliations to American made gangs. Those deported individuals take back with them knowledge of an organizational structure that the Central American governments are simply unready and unable to address effectively.

But the reality is it is not politically popular for the United States to take responsibility for the gang violence in Central America. Instead, politicians push to close the borders, in an attempt to exclude the gang related element from United States. For the practitioner, the challenge is to find creative ways around this situation, and to work with the clients in order to craft the strongest asylum clean possible.

William J. Kovatch, Jr.
For an appointment, call (703) 837-8832
Se habla espanol (703) 298-0502

Links

National Immigrant Justice Center, Particular Social Group Practice Advisory

National Immigrant Justice Center, Resources for Asylum Claims Based on Membership in a Particular Social Group

Asylum Granted to Woman Escaping Abuse

The Arlington Immigration Court granted asylum to a woman from El Salvador escaping from an abusive relationship. The woman had suffered years of physical abuse at the hands of her partner, who even refused to acknowledge the paternity of their daughter. Cries to her family for help were met with responses such as, "you must have done something to deserve it," and "this is the man you chose to be with for life, you can't leave him."  However, once the woman's father saw the scars and bruises left by the abuse, he changed his attitude and found money to help her make the treacherous journey across the United States border. 

The toughest issue in the case was that the woman had waited more than a year to file her asylum application. U.S. immigration law requires that an asylum petition be filed within one year of entry unless there are changed or extraordinary circumstances. The years of abuse and lack of support from her family had caused this woman to suffer depression, which in turn made her avoidant and reluctant to relive her trauma. Only after meeting a caring man in the United States, who encouraged her to seek help did the woman realize that she could overcome her past and seek legal protection in the United States. 

Now that asylum has been granted, the woman will file a petition to have her minor daughter in El Salvador join her.

Promising Asylum Cases from the Fourth Circuit

In 2014, the U.S. Court of Appeals has issued two cases that give some hope to people from Central America filing asylum applications based on gang-related issues.

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 wkovatch@kovatchlegalservices.com.

By:

William J. Kovatch, Jr.

Asylum Granted to Honduran Victim of Domestic Abuse

Today, Arlington Immigration Court Judge Thomas Snow granted asylum to a woman from Honduras who was a victim of domestic abuse.  For a little over two years, the woman suffered physical, mental and economic abuse at the hands of her common law husband, who threatened to find her and kill her if she ever attempted to leave.  The woman was only able to escape when a neighbor intervened to pull the husband off of the woman as the husband was attempting to choke her after an argument over the husband’s mistress.  Taking the neighbor’s advice, the woman made the treacherous journey through Guatemala and Mexico to the United States.  Once in the United States, the woman was taken into custody by Border Patrol, and placed in removal proceedings.

As counsel to the woman, we submitted evidence demonstrating that Honduras is a deeply-rooted patriarchal society, where women get their identities first from their fathers and then from their husbands.  For a single woman living alone, access to credit and good jobs is virtually impossible.  As a result, women become dependent on their husbands, and are often treated like property and abused.  The State Department, in its annual human rights reports on Honduras, reports that rape and domestic abuse are significant problems in Honduras, as is femicide, or the murder of a woman by her significant other.  In 2008, the State Department cited statistics showing that 90% of femicides in Honduras went unpunished.

Victims of domestic abuse receive little help from governmental authorities.  According to Claudia Herrmansdorfer of the Center for Women’s Rights in Tegucigalpa, the police tend to treat domestic violence as an issue that should be resolved by the couple, and do not intervene.  Likewise, prosecutors tend not to bring cases of domestic violence to court.  This means that women in an abusive relationship in Honduras receive little, if any, protection from the government.

Asylum can be granted where an applicant can show that she fears that she will be persecuted if returned to her home country because of one of five protected categories:  (1) political opinion; (2) race; (3) religion; (4) nationality or (5) membership in a particular social group.  For victims of domestic abuse, the difficulty had been to fit the reason for the abuse into one of these five categories.  In 1999, the Board of Immigration Appeals rejected an asylum application where the applicant claimed to be part of a particular social group defined as “Guatemalan women intimately involved with abusive Guatemalan male companions who believe that women are to live under male dominance.”  In 2001, the Attorney General exercised his discretion to reverse the BIA’s decision, and remand it back to Board for reconsideration.  No published opinion has resulted from that remand.

The recent trend, however, has been to grant asylum to victims of domestic abuse.  In this case, both the Immigration Judge and the attorney for the Department with Homeland Security agreed with us that the woman was part of a particular social group defined as “Honduran women who are unable to leave their domestic relationship.”  Indeed, the DHS attorney did not oppose the asylum application, allowing the Immigration Court proceedings to run smoothly.  The woman was not required to recount her emotional tale of abuse in court, but was asked only to affirm the truthfulness of her asylum application under oath.  The DHS attorney also asked questions of the woman to make sure that no statutory bars to asylum, such as criminal and terrorist activities, applied in her case.

Having been granted asylum the woman may now live and work in the United States legally.  In one year, she may apply for permanent residency status, which could eventually lead to U.S. citizenship.

By:  William J. Kovatch, Jr.

(703) 837-8832

info@kovatchimmigrationlaw.com