Protection from Gangs & Domestic Violence under U.S. Asylum Law

Over the past few years, as increased numbers of Central Americans crossed the border into the U.S. seeking asylum from domestic and gang-related violence, these types of cases have received increased attention.

U.S. asylum is a humanitarian benefit provided to individuals who fear “persecution” in their home country if the feared persecution is on account of one of five statutorily protected grounds. One of these protected grounds is “membership in a particular social group,” and whether victims of domestic or gang violence belong to a “particular social group” has been frequently debated in immigration courts.  (The four other protected asylum grounds are race, religion, political opinion, and nationality.)  This post addresses recent changes in asylum law affecting these cases, and well as some of the obstacles that must be overcome in order to achieve success.

Domestic Violence

On August 26, 2014, the Board of Immigration Appeals (BIA) issued its first ever precedent decision, Matter of A-R-C-G-, recognizing that women fleeing domestic violence can be untitledmembers of a particular social group (PSG).  The Applicant in that case, a mother of three, suffered extreme abuse at the hands of her husband in Guatemala.  The decision in Matter of A-R-C-G- was ground-breaking because historically immigration judges found that women fleeing domestic violence did not belong to a PSG, reasoning that a group defined by gender was far too broad.  In Matter of A-R-C-G-, the BIA specifically held that the applicant belonged to the PSG of “married women in Guatemala who are unable to leave their relationship,” a group defined by gender, nationality and marital status.

What does this mean for victims of domestic violence? First of all, there is hope of obtaining protection in the United States.  Secondly, however, it is important to remember that asylum is not a given.  Not every domestic violence victim belongs to the PSG of “married women in Guatemala who are unable to leave their relationship,” which is the specific PSG defined in Matter of A-R-C-G-.  Identifying and defining a social group that meets the standard for asylum eligibility is crucial for domestic violence-based claims.  Furthermore, there are many additional eligibility factors that an applicant must establish beyond proving that she belongs to a PSG.  Therefore, having a knowledgeable and trustworthy immigration attorney to help prepare a strong, well-argued case is critical.

Gang-Related Violence

Many of those fleeing Central America are fleeing the gang violence that plagues that area. Unfortunately, asylum claims based on fear of gang violence frequently fail.  However, there are reasons to believe that USCIS and immigration courts are becoming more receptive to gang-related asylum claims than the BIA and federal court decisions in this area might suggest.

The important thing to keep in mind in these cases is the motivation of the persecutor. If gang members want to harm someone exclusively because they want retribution, or his money, or they are targeting him for membership simply because he is a member of the general public, the burden for proving eligibility for asylum is not met.  The persecutor must be motivated to specifically target the asylum applicant at least in part because of who he or she is; because of his or her personal attributes or associations.  It is also important to remember in these cases that the PSG cannot be defined “circularly” by the fact that its members have been targeted for persecution.

Some of the more successful PSG claims for those targeted by gangs are based on family membership. For example, an applicant who fears persecution from gang members because she is related to someone who has testified against the gang or resisted gang recruitment is much more likely to be granted asylum than the person who actually testified against the gang or refused gang membership.  A recent BIA case, Matter of W-G-R-, also opened the door for successful PSG asylum claims by former gang members, although a violent criminal past may be an issue in these claims.

Again, retaining reliable and knowledgeable counsel for these claims is vital. Although gang-related cases are complicated and difficult to win, success is not impossible, and a good lawyer can make the difference.

Please contact us today for a consultation if you or someone you know may have an asylum claim based on domestic or gang violence. We look forward to serving you.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.

Don’t Miss the H-1B Deadline!

The April 1, 2016 deadline for filing H-1B petitions for the upcoming fiscal year is quickly approaching.  Don’t miss it!

The H-1B visa program is the most practical way for U.S. businesses to hire foreign professional workers.  This visa is for specialty occupations that require a bachelor’s degree in a specialty field or equivalent combination of education and/or experience.   Employment under the H-1B visa may be approved for three years and can be extended for another three year increment, totaling a maximum of six years.  Certain H-1B holders pursuing a green card are eligible to extend the visa beyond the 6 year limitation.

H-1B petitions may not be filed year-round.   This particular visa type has a numerical limit that USCIS (U.S. Citizenship and Immigration Services) accepts every fiscal year.  The number is referred to as the “cap” and is currently 65,000 for regular H-1B applicants plus an additional 20,000 H-1B visas under the Master’s degree cap exemption.

USCIS will begin accepting H-1B applications on April 1 and will continue to accept filings for the subsequent five business days.  Most years, the cap is met within those first few days and many more petitions are filed than visas exist.  If more than 65,000 petitions are received during the first week of April, USCIS performs a computerized lottery to randomly select the petitions to review.  Those not selected are returned along with the filing fees.

For F-1 students with OPT (Optional Practical Training), a timely H-1B filing will extend your OPT until the H-1B employment start date of October 1.  Please consult with a lawyer for more details and options.

U.S. employers must plan ahead to avoid missing the H-1B filing deadline.  There are certain prerequisites for filing an H-1B petition with USCIS, and U.S. employers are encouraged to contact an immigration lawyer as early as possible.

The experienced attorneys at Just Law International, P.C. are  fully equipped to serve you in preparing and filing H-1B petitions.  Please contact us and schedule a consultation to discuss further details and options.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.

UPDATE: U.S. Supreme Court Will Hear Case on Expanded DACA & DAPA

After a divided Fifth Circuit Court of Appeals denied the federal government’s request for an emergency stay of the preliminary injunction blocking the implementation of DAPA and the expansion of DACA, the Obama administration appealed the injunction itself.  After a denial from the Fifth Circuit Court of Appeals, the Obama administration took the case all the way to the U.S. Supreme Court, and on January 19, 2016, the Supreme Court granted the administration’s petition to hear the case.  Oral arguments will most likely occur in April 2016, with the Court deciding the case sometime before the end of June 2016.

If the Supreme Court rules in the Obama administration’s favor, it means the President will have six to seven months to implement DAPA and expanded DACA before he leaves office, and that could have a significant impact on many undocumented individuals currently residing in the United States.

The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program would allow those who are parents of U.S. citizens and lawful permanent residents and who meet certain requirements to apply for an initial three year period of deferred action and employment authorization.

The expanded Deferred Action for Childhood Arrivals (DACA) would allow applicants of any age and who otherwise meet the eligibility requirements to apply for deferred action, and it would extend the period of deferred action and work authorization from two to three years.

If you think you may be eligible for DAPA or expanded DACA, don’t hesitate to contact one of our offices for a consultation.

We will continue to provide updates here on the blog as the case progresses.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.

REMINDER: Registration Period for Nepal TPS Ends Dec. 21, 2015

The 180-day registration period for Temporary Protected Status (TPS) for Nepal began on June 24, 2015, and the Dec. 21, 2015 deadline is fast approaching.

DHS designated TPS for Nepal based on the current country conditions resulting from the 7.8 magnitude earthquake that occurred on April 25, 2015, along with strong aftershocks, affecting more than 8 million people, causing over 8,700 fatalities, and resulting in a substantial disruption of living conditions.  The designation means that, through Dec. 24, 2016, eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) are eligible to remain in the U.S. and will not be removed.  They may also receive employment authorization and apply for a travel document.

Eligibility requirements for TPS include the following:

1) Must be a national of Nepal (or a person without nationality who last habitually resided in Nepal);

2) Must have continuously resided in the U.S. since June 24, 2015; and

3) Must have been continuously physically present in the U.S. since June 24, 2015.

Please be aware that TPS does not grant nor lead to lawful permanent resident status.  However, TPS beneficiaries are not prevented from applying for other immigration benefits.  For a consultation regarding your eligibility for TPS and assistance with your application, please contact our office.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.

USCIS Acquiesces to Shalom Pentecostal Case Invalidating Legal Status Requirements for Special Immigrant Religious Workers

On July 5, 2015, USCIS issued an important Policy Memorandum acquiescing to the U.S. Court of Appeals for the Third Circuit decision in Shalom Pentecostal, stating that USCIS will no longer require a beneficiary to have held lawful U.S. immigration status or employment authorization while he/she acquired qualifying 2-year religious work experience in the U.S. prior to filing the I-360 special immigrant religious worker visa petition.  The Policy Memorandum was issued to USCIS adjudicators nationwide and applies to all pending special immigrant religious worker petitions as well as new petitions filed on or after July 5, 2015.  The Memorandum is in effect until new regulations are enacted by DHS.

This Memorandum follows a significant decision issued on April 7, 2015, in which the Third Circuit in Shalom Pentecostal Church v. Acting Secretary DHS, 783 F. 3d 156 (3d Circ. 2015), found the lawful immigration status requirements in 8 CFR 204.5(m)(4) and (11) inconsistent with the clear and unambiguous intent of Congress as evidenced in the plain language of the statute at 8 U.S.C. 1101(a)(27)(C), and therefore beyond DHS’s legal authority to mandate (ultra vires).  As a result of the decision, USCIS is unable to apply the legal status requirements of 8 CFR 204.5(m)(4) and (11) to cases arising in the Third Circuit, and with additional federal courts reaching the same outcome, USCIS decided in July to acquiesce to the finding in Shalom Pentecostal in order to “promote consistent adjudications and a nationally uniform immigration policy.”

Although a beneficiary of the special immigrant religious worker visa petition is no longer precluded from eligibility for the I-360 visa with qualifying religious work experience acquired in the U.S. without lawful status or employment authorization, the beneficiary must, nonetheless, meet eligibility requirements of section 245 of the Immigration and Nationality Act to successfully adjust status to permanent resident.  If you would like a consultation regarding your eligibility for the special immigrant religious worker visa, please contact us to speak with our experienced attorneys.

Please consult an attorney for advice about your individual situation.  The information provided on this site is not legal advice, nor is it intended to be.  You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls.  Contacting us does not create an attorney-client relationship.  Until an attorney-client relationship is established, please withhold from sending any confidential information.