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.

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