Asylum Claims After Matter of A-B-

          On June 11, 2018, Attorney General Jefferson Sessions issued an opinion which struck a devastating blow to thousands of asylum seekers. In the Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), AG Sessions ruled that women seeking asylum based on being ‘El Salvadoran women who are unable to leave their domestic relationships where they have children in common’ with their perpetrators are not a ‘particular social group’, thus ineligible for asylum.  AG Sessions reiterated that private criminal activity – however vile and violent – is not a basis for asylum unless it meets legal threshold. He went further in ruling that a cognizable, particular social group must exist independently of the harm asserted in order to qualify for asylum. This means asylum claims based on general domestic abuse will not stand. Rather, women (and men) must show they were harmed for non-personal reasons.

            A few important rules were reaffirmed or clarified with the decision, including:

• General victims of domestic violence and gang violence cannot serve as a basis for asylum.
• Social groups vulnerable to private criminal activity likely lack particularity because many social groups are vulnerable to victimization.
• If an asylum applicant cannot show abuse based on being a member of a particular social group – rather than abuse based on being a wife or partner – an asylum claim will fail.
• If the abuse or persecution involves a private actor (such as a husband or partner), an asylum applicant must show the government condoned the action or was helpless in controlling the private actor and in protecting the victim.

          The ruling seemingly affects not only thousands of women seeking asylum from their abusive spouses and partners, but every  alleged particular social group. For an un-established particular social group argument to succeed, it must meet each and every legal standard. At a minimum, this means the group is composed of members who share a common immutable characteristic, defined with particularity, and socially distinct within the society in question. These are legally complex burdens to meet.

What Happens To Pending Asylum Claims Based on Domestic Violence?

          The bottom line in this decision is that asylum claims based on domestic abuse will face incredibly high scrutiny if the perpetrator is a husband, partner or other domestic figure. We can expect trial attorneys and asylum officers to critique each and every piece of evidence and to question each and every sentence from an asylum applicant. We can expect arguments about ‘personal’ versus other reasons for abuse. Finally, we can expect a rise in asylum denial rates and appeals.

Planning is Key

        In the future, asylum applicants should be prepared as much as possible. It will be very important to have expert testimony on country conditions, including testimony on society, culture, police activities, and country-specific norms. If possible, it is important now more than ever to have actual, physical evidence of their claims. An asylum applicant must also carefully craft his or her asylum declarations and prepare again and again for questioning. 

         Immigration under the Trump Administration will continue to change. If you or a loved one has an asylum claim, please contact me to review your chances of success.