Last updated on May 14th, 2019
On June 11th, 2018, Attorney General Jeff Sessions issued a ruling that could affect the lives of thousands of people seeking asylum in the United States.
Previously, individuals living under a credible threat of certain violent crimes could seek asylum in the United States. Domestic violence victims, for instance were specifically permitted to enter the U.S. as asylum seekers. Now, however, this is no longer the case.
In this article, we’ll talk about the asylum-seeking process in general, and how the Attorney General’s ruling has changed it. We will also discuss alternative strategies that asylum-seekers can use to increase their chances of having their claims recognized.
As always, keep in mind that everyone’s case is different. No single article is ever a substitute for an experienced immigration lawyer.
What Is Asylum?
In the United States, asylum is a special form of protection for foreign victims of violent persecution. Asylees are permitted to live and work in the United States until it is safe to return to their nation of origin. They may also petition USCIS to allow their spouses and children under 21 to join them in the United States.
To seek affirmative asylum in the United States, you must file application I-589, Application for Asylum and for Withholding of Removal. After one year of being an asylee, you may then file form I-485, which will allow you to become a permanent resident of the United States. Four years after that, you may also apply for official U.S. citizenship if you so desire.
If you’re already involved in removal proceedings, you may also choose to file for something called defensive asylum. This is for cases where deportment will likely result in the death of yourself or a member of your family.
Defensive asylum has the same requirements as seeking affirmative asylum. However, instead of filing your application with USCIS, you must instead file it with the immigration judge overseeing your removal proceedings.
In either case, you must apply for asylum within one year of entering the United States. If you fail to do so, the government may bar you from seeking asylum at all.
Who’s Eligible for Asylum?
In order to be eligible for asylum, you must present a “credible fear” of violent persecution. This persecution must be due to one or more of the following factors:
- Your race or ethnicity.
- Political leaning or membership in a political group.
- Membership in a particular social group.
The first four of these categories are relatively cut and dry. However, it is not necessarily obvious what “membership in a particular social group” means in this context. The controversy around this phrase is the subject of the June 11th ruling.
Matter of A-C-R-G-
For many years, there has been legal disagreement over whether victims of domestic violence are eligible for asylum. Generally speaking, however, precedent has fallen in the direction of “yes,” with the logic being that women in general often suffered persecution for coming out as victims of domestic violence.
This became official government policy in 2014, when the Board of Immigration clarified that women fleeing domestic violence constitute a particular social group. This decision, Matter of A-C-R-G-, is what Jeff Sessions recently overruled.
The Matter of A-C-R-G- was also important for asylees filing because of gang violence. This was because both “credible fears” were based on more loosely defined social groups, and thus decisions on one side could count as precedent for the other.
Matter of A-B-
In recent months, however, the situation for those seeking asylum from domestic or gang violence has changed dramatically. This is because the Attorney General’s office published an opinion on the Matter of A-B-.
In addition to ruling on a specific case, this document specifically overturned Matter of A-C-R-G-. In doing so, the Matter of A-B- decision has left many asylum seekers in a precarious situation.
Matter of A-B- contains two dicta that are particularly important for victims of domestic and gang violence:
- It first states that the phrase “particular social group” only refers to groups that exist “independently of the harm asserted in the asylum application”.
- In other words, “domestic violence victims” is not by itself a particular social group.
- Second, a person seeking asylum from the actions of a “private actor” must demonstrate that a government specifically condoned the actions of that actor.
- Therefore, victims of gang violence are only eligible for asylum if they can demonstrate that the government of their country has deliberately turned a blind eye to their persecution.
These dicta, however, are non-binding. While the Attorney General has encouraged courts to apply them, they have no legal obligation to do so. At the same time, asylum-seekers and their attorneys must still prepare to respond to these arguments in court.
Furthermore, the inability to rely on precedent set in Matter of A-C-R-G- will prove a significant hurdle for many current cases and future asylum-seekers.
Strategies for Asylum Seekers
As mentioned above, Matter of A-B- is not an absolute bar on asylum applications from victims of domestic or gang violence. However, in overturning Matter of A-C-R-G- and establishing the dicta above, the Attorney General’s order has effectively raised the bar for asylum applications.
In light of this fact, there are two things that an asylum seeker can do to improve their chances.
First, gather as much corroborating evidence as possible to demonstrate the credibility of the threat against you. In particular, focus on gathering evidence which specifically pertains to your gender, ethnicity, or other social group. Ideally, you want to prove that you suffered persecution due to this group identity.
Second, contact legal help as soon as you possibly can. If nothing else, the Attorney General’s ruling has certainly made asylum cases more difficult to prepare. By giving your lawyer as much time as you can, you can increase your chances of presenting a strong case.
For lawyers and asylum-seekers alike, Matter of A-B- presents a daunting, confusing obstacle in an already-complicated process. However, that should not discourage you from seeking asylum in the United States.
On the contrary, cases handled by experienced immigration attorneys can still result in aslyee status. The biggest difference comes in the way your lawyer argues your individual case to the court court.
For more information about how this decision affects your specific case, you should with your immigration attorney.