In June 2018, former Attorney General Jeff Sessions overturned an immigration court’s decision and issued a precedential decision that makes it even more difficult for asylum seekers to obtain asylum protection in the United States by citing fear of domestic abuse. This is also the case for asylum seekers who make asylum claims based on their fear of gang violence.
The Attorney General has authority over all immigration courts and delivered a speech, which was followed by a USCIS memo, that outlined when USCIS officers should use their discretion in asylum cases.
If a foreign national is being persecuted because of his or her race, religion, nationality, membership in a particular social group, or political opinion, then he or she may apply for asylum.
An applicant can apply for asylum without having to pay a government filing fee, but the process can take months or even years. As a result, foreign nationals can enter the United States illegally and remain in the United States while their asylum case is pending. This “loophole” in the immigration system has often been a criticism of the Trump Administration.
Immigration officers and judges often struggle with defining “membership in a particular social group” and the definition as changed over time. An Obama-era precedent granted asylum to a woman based on her membership to a group that feared returning home due to domestic violence.
Asylum is becoming increasingly difficult to obtain (see USCIS and immigration court statistics), and now Mr. Sessions believes the Obama-era interpretation defines membership in a particular social group too broadly and misconstrues the proper legal application.
The Attorney General’s intervention is not uncommon and his predecessors as far back as the 1990s “have weighed in on the use of the particular social group in asylum cases.” While not unprecedented, the intervention does make it much more difficult for individuals in this context to obtain asylum due to persecution from private actors.
Asylum Legal Inquiry in Particular Social Group Claims
Under current legal precedent, an officer or a judge presiding over an asylum case in which membership in a particular social group has been cited as a basis for asylum protection must make five basic inquiries. First, the applicant must be a member of a clearly defined social group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct with the society in question.
Second, the officer must require that the applicant prove that his or her membership in the defined social group is the central reason for the applicant’s persecution.
Third, if the alleged persecutor is not affiliated with the government, then the officer must require that the applicant demonstrate that his or her home government is unwilling or unable to protect him or her from the alleged persecutor.
Fourth, the officer must analyze whether relocation in the applicant’s home country is possible and would present a reasonable alternative to granting asylum. If relocation is a reasonable alternative, asylum must be denied.
Fifth, if the applicant meets the eligibility standard outlined in the first four inquires, then the officer must determine if the applicant merits the granting of asylum.
I. Clearly Defined Social Group
The proper legal standard for asylum seekers requires that a group be composed of members who share a common immutable characteristic, be defined with particularity, and be socially distinct with the society in question.
1. Immutable Characteristic
The applicant must demonstrate that their membership in a particular group is an immutable characteristic of his or her identity. A characteristic is considered immutable if the characteristic would be virtually impossible to do so or because the basis of affiliation is fundamental to the members’ identity. An example of an immutable characteristic would be sexual orientation.
A group is defined with particularity if the group is not “amorphous, overbroad, diffuse, or subjective.”
3. Social distinction
A group is defined with social distinction if its members generally understand their own affiliation and other people in their country would understand their affiliation.
II. Membership is the Central Reason
Group affiliation must be the central reason for the abuse. Private domestic abuse based on a personal relationship, even to individual members of larger groups, will often not meet this standard because the abuse is not due to the individual’s group affiliation.
III. Government is Unable or Unwilling to Control
If persecution comes from a nongovernment actor, then the applicant must demonstrate that the government either condoned the private actions or the government is completely helpless in protecting the victim. The fact that a government struggles to control gang activity or certain domestic crimes cannot, by itself, establish eligibility for asylum. Ineffective does not equal unable.
It is not enough for a domestic crime to go unpunished; the government must be unable or unwilling to prevent the crime. Government initiatives to end gang or domestic violence would be evidence that the government is not unwilling or unable to protect victims, but rather would be evidence the government is ineffective in preventing the abuse.
IV. Internal relocation
If only a few nongovernmental individuals are exhibiting violence, then internal relocation is more logical than asylum. Internal relocation should always be favored instead of granting asylum.
V. Officer Discretion
If an applicant meets the above four criteria, then an officer must decide if asylum should be granted. An officer should consider the totality of the circumstances, including but not limited to, whether the foreign national passed through other countries to arrive in the United States, whether the foreign national attempted to seek asylum before coming to the United States, whether the foreign national legally entered the United States, and the foreign national’s living conditions, safety, and potential for long-term residency.
Matter of A-B-
According to policy memorandum following the Matter of A-B- decision, domestic violence victim will usually not qualify for asylum because a group defined as women who suffer from domestic violence will likely not be a socially defined group because suffering from domestic violence is not an immutable characteristic central to an individual’s identity, the group can be very broad, and in general domestic violence is conducted by private actors, which means other people within the applicant’s country may not understand that an applicant is a member of the domestic violence group.
If victims of domestic violence want to demonstrate that a group of domestic violence victims was socially distinct, then the applicant must demonstrate that the group is defined independently of the harm being afflicted upon them. That is to say, many women are abused because of their gender, and so the characteristic of being female would be an immutable one independent of the persecution. Similarly, in gang violence cases, young men in Central America, for example, are targeted by gang members after refusing to join a gang or to participate in gang activities, and it is that opposition to gangs that gives rise to an immutable characteristic.
Finally, the asylum seeker will need to be ready to show that internal relocation is neither safe nor reasonable. Even under the current legal standard the government still has the burden to show that such relocation would be possible despite evidence of past persecution.
Matter of A-B- greatly limits the ability of domestic violence victims to obtain asylum in the United States. The decision is a tremendous set back to decades of work put forth by legal advocates who fought hard to secure recognition of persecution on account of gender as protected by U.S. asylum law. Obtaining asylum protection in this context is still possible but will certainly require an even higher level of documentation and careful legal analysis.