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.)

Monday, June 25, 2018

AG Sessions: Domestic Violence Not Eligible for Asylum

U.S. Attorney General Jeff Sessions issued a decision Matter of A-B- on June 11, 2018, making it more difficult if not impossible for domestic violence victims to obtain asylum protection in America.  His decision reasserts the traditional view of what constitutes a particular social group for the purposes of applying for political asylum.

Those seeking asylum in the U.S. may do so if they suffer persecution based on race, religion, nationality, being in a particular social group, or political opinion. What constitutes a "particular social group" (referring to the asylum seeker's claimed persecuted group) has been a subject of controversy. Generally speaking, an applicant arguing that she is persecuted because she belongs to a particular social group must demonstrate that the group can be objectively defined by virtue of some "immutable traits" such as one's race or sexual orientation. Further, the group must be  recognizable in society.

The biggest point of contention in domestic violence cases is the term "particular social group". By traditional interpretations, people in privately violent cases do not qualify as asylum seekers. In 2014, however, a new precedent was set. The case Matter of A-R-C-G- presented a woman who had fled her abusive husband in Guatemala and sought asylum in the U.S. The Board of Immigration Appeals (BIA) ruled that “married women in Guatemala who are unable to leave their relationship” is a valid social group. The Board defined "married" as an immutable characteristic and "married", "women", and "unable to leave the relationship" as distinct statuses in Guatemala. Social distinction in Guatemala was also recognized  through a "culture of machismo and family violence". This was a controversial decision and cases involving domestic violence cases were decided inconsistently. Some cases continued to be denied because the applicant was not deemed part of a particular social group.

Sessions overrules A-R-C-G- in his decision, rejecting the broad interpretation of "particular social group". According to the A.G.'s decision, the social group “married women in Guatemala who are unable to leave their relationship” is not valid by definition of the Immigration and Nationality Act. This group, according to him, cannot be circularly defined by the victims' situation. The group needs to be defined independently of the inflicted harm.  It needs to be an existing, recognized segment of the applicant's society. Also, the husband did not specifically target the applicant because she was a Guatemalan woman unable to leave her relationship. The applicant was denied asylum because she did not establish her membership in a particular social group. Session also believes that there was insufficient evidence to prove that the Guatemalan government was unable or unwilling to stop the domestic abusive acts, another requirement for obtaining asylum.

Sessions applied the same rationale to Matter of A-B-, where the social group claimed was “El Salvadoran women who are unable to leave their domestic relationships where they have children in common”, and remanded the case to the Immigration Court for a new decision.

While the Attorney General's decision is binding on all immigration courts, the BIA, and asylum officers, his word is far from being final on this issue. Asylum law is constantly changing and developing. This issue will likely resurface in a different context soon.

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