A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, May 13, 2015

Nuclear Family Relationship can be a Basis for Asylum

What can a mother do if she was threatened at gunpoint to have her son join the gangs? Well, she may be eligible to apply for political asylum in the United States, according to a recent decision by the U.S. Court of Appeals for the Fourth Circuit in Hernandez-Avalos v. Loretta E Lynch, Attorney General (No. 14-1331 4th Cir. 4.2015). 

One of the basis for applying for asylum in the U.S. is that an applicant is unable or unwilling to return to her country of origin because of persecution or a well-founded fear or persecution on account of her "membership in a particular social group." Immigration and Nationality Act (INA) Section 101(a)(42).  The courts have held that a family unit may constitute a social group.  The issue in Hernandez is whether the applicant mother's nuclear family relationship to her son is a central reason for the gangs targeting her for persecution.  

The case involved a public gang in El Salvador named Mara 18. Hernandez is a Salvadoran woman whose son was threatened to join the gang, after her husband's cousin was killed by one of the gang’s member.  Because Hernandez's strong opposition to his son joining Mara 18, she was threatened with death many times---the gang members even put a gun to her head once. After repeatedly asking help from the local police without any response, Hernandez was afraid of the gang’s retaliatory persecution and, in 2008, brought his son to the United States to seek protection.

The Fourth Circuit found that Hernandez had a well-founded fear of persecution and that the Salvadoran government could not control Mara 18's criminal activities or ensure her son's safety. Here, the court also examined whether Hernandez' nuclear family relationship to her son is "a central reason" for the gangs targeting her for persecution. The BIA concluded that the threats to kill Hernandez unless she allowed her son to join the gang were not made on account of Hernandez’s membership in her nuclear family. Rather, it was made because she did not give consent to her son's engaging in criminal activities. The Fourth Circuit believed that this reading by BIA of the statute is "an excessively narrow" one. Hernandez’s relationship to her son and her maternal authority to control her son were the reasons why she was targeted. In other words, Hernandez is her son’s mother is at least one central reason for her persecution.  The BIA’s conclusion was therefore unreasonable.

However, the court specifically limits the scope of the ruling to “nuclear family membership”. Not every threat that involves a family member is made on account of family ties. For example, a threat demanding Hernandez not to identify the murderers of her husband’s cousin was not made on account of Hernandez’s familial connections because that same threat could have been directed at any person who knew about the gang members’ criminal activities. By contrast, the threats that directed Hernandez to turn her son over to the gang would not have been made if there had not been a familial connection.

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