Last week, Attorney General Merrick Garland issued two decisions reversing Trump-era cases that limited asylum eligibility. Here, we’ll discuss those cases and how the AG’s decision will affect asylum seekers.
The first case, Matter of A-B-, 28 I&N 307 (AG 2021), involves asylum for victims of domestic violence. There is a long history here, but the basic story is that victims of domestic violence have traditionally had a hard time qualifying for asylum. Through a series of cases between 2004 and 2014, the government created a (convoluted) path for victims of DV to receive asylum by classifying them as a “particular social group” (to qualify for asylum, an applicant must show that the feared harm is “on account of” race, religion, nationality, political opinion or particular social group). While this was an important step for DV asylum seekers, presenting a successful case was still very difficult, especially for people without a lawyer (probably the majority of applicants). The Trump Administration re-visited DV asylum starting in 2018, and essentially erased the gains made during the prior decade and a half. Now, the pendulum has swung once again, and the Biden Administration has reversed the Trump-era reversal. In other words, we are back to the not-so-great place where we were in 2017. This means that victims of domestic violence can once again obtain asylum, assuming they can satisfy the narrow definition created prior to President Trump. (more…)
In a recent posting on the Department of Homeland Security blog, January Contreras, the DHS Ombudsman, describes the Department’s efforts to help protect women and girls. Some highlights:
In 2010, U.S. Citizenship and Immigration Services (USCIS) administered the full statutory allotment of 10,000 visas for victims of domestic crimes who participated in the investigation and prosecution of their perpetrators – for the first time.
Through U.S. Immigration and Customs Enforcement (ICE)’s Victim Assistance Program, 18 new full-time victim assistance specialists have been deployed to 17 ICE offices, in addition to 250 collateral duty Victim Assistance Coordinators, to provide continued guidance and support for victims of violent crimes.
The Federal Law Enforcement Training Center has deployed programs that train officers on protecting women and girls, including a web-based human trafficking training course and training on violence against women.
January Contreras: DHS Ombudsman
Ms. Contreras concludes, “While we are extremely proud of our accomplishments in the protection of women and girls, we know there is always the opportunity to do more.” “As a Department, we are committed to dedicating even more of our efforts to the security of women and girls in the years to come.”
DHS should be commended for its efforts and accomplishments to protect women and girls. As Ms. Contreras notes, there is more to be done. Some suggestions:
DHS recently expanded the unit that adjudicates VAWA, T and U visas (victims of domestic violence, victims of human trafficking and victims of certain crimes, respectively) to approximately 100 officers. Previously, officers elected to join the “VAWA unit,” but it seems this practice has changed and officers are often rotated through the unit. The results of this change have been mixed. On the one hand, processing times have been reduced, which is certainly good news. But on the other hand, expertise has gone down and the number of RFEs (Requests for Evidence) issued by the unit has increased as new officers learn the new areas of law. These superfluous RFEs cause delay and reflect the lack of specialization of officers rotated through the unit. One solution would be to go back to the previous model where the staff of the VAWA unit were permanent, chose to be in the unit, and were well-trained prior to starting in domestic violence and VAWA. Such officers would be more specialized and would increase the quality of the work product.
The Victims Assistance Program is an excellent program that assists victims, including victims of human trafficking many of whom are eligible for T and/or U visas. However, very few U visas certifications seem to be signed by ICE agents. DHS needs to do a better job of informing ICE agents about their ability to sign U visa certifications and the process for doing so. DHS should do more to help ICE agents understand their role in the certification process.
Also, on the subject of U visas and certification, many local law enforcement officers do not understand the visa and how it was designed to help them investigate crimes. DHS should do more to inform local law enforcement about U visa certifications and how to assist crime victims with their U visa applications.
Finally, with the rise of ICE detention in the United States, it is important that DHS put in place a framework to identify victims of domestic violence, sexual assault, human trafficking, and other violent crimes who may be eligible for immigration relief. A system should exist so that such people can be connected with appropriate resources. Ideally, this screening would occur prior to the issuance of an ICE detainer
While DHS’s efforts to assist women and girls has been laudable, there are estimated to be about 100,000 children (under age 18) in the sex trade each year in the United States (it is not known how many are immigrants and how many are U.S. citizens). In addition, there are likely several hundred thousand adults. All of these people may not be victims of human trafficking, but many are. Others may be victims of domestic violence, sexual assault, and other violent crimes for which there may be immigration relief available. Given the large numbers of victims, DHS and Congress should devote more resources to helping those in need.
Human trafficking – as well as forced marriage, often a form of trafficking – is indisputably recognized around the world as an egregious human rights abuse, and many victims of this abuse fear that they cannot safely return to their home countries after escaping. Increasingly, courts around the world are concluding that victims of trafficking and forced marriage are eligible for refugee protection. While some U.S. immigration judges and asylum officers have also recognized this principle, there is not a large body of binding U.S. precedent specifically addressing trafficking or forced marriage. But with a targeted litigation strategy, attorneys can convince more and more adjudicators to recognize what is becoming firmly established in international law.
The guide is designed to assist attorneys in crafting arguments and writing briefs to support their clients’ asylum applications based on trafficking and/or forced marriage.
I’ve litigated a few cases like this, and they can be tough. Although both human trafficking and forced marriage are types of persecution, they do not easily fit into the protected grounds set forth in asylum law. I suppose that was once true for persecution based on female genital mutilation and sexual orientation, but now, persecution based on those grounds may form the basis for an asylum claim. Hopefully, the new guide will help establish trafficking and domestic violence as basis for asylum, so that people fleeing such persecution can gain protection in the United States.
The New York Times reports that an Immigration Judge in California has granted asylum to a Mexican woman–referred to as L.R.–who was the victim of severe domestic violence. Her common-law husband repeatedly raped her, threatened her with a gun and a machete, and tried to burn her to death. In April 2009, the Department of Homeland Security filed a brief that paved the way for last week’s decision. That brief, which represented a reversal of DHS’s position during the Bush administration, concluded that “it is possible” that the Mexican woman “and other applicants who have experienced domestic violence could qualify for asylum.” According to the brief:
DHS suggests that the particular social group in asylum and withholding of removal claims based on domestic violence is best defined based on the evidence about how the respondent’s abuser and her society perceive her role within the domestic relationship…. A group defined in light of this evidence might be articulated as “Mexican women in domestic relationships who are unable to leave” or as “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.” DHS believes that groups understood in these ways, if adequately established in the record in any given case, would meet the requirements for a particular social group…
DHS also notes that the applicant must show that she cannot relocate within the country and that the government is unable or unwilling to protect her. These factors will be determinative in most domestic violence asylum cases.
In L.R.’s case, experts testified that the police and government officials could not and would not protect her because of “the enormous social and cultural tolerance of this abuse, resulting in the virtual complicity of authorities who should prevent and punish these violent acts.” L.R. herself testified that she went to the authorities for help, and one “judge had offered to help her if she would have sex with him.” Thus, there was compelling evidence that the government would not protect her. There was also compelling evidence and expert testimony that she could not relocate within Mexico.
The extreme facts of this case combined with documentary evidence and expert witness testimony led to an asylum grant. It is doubtful that many abused women will have the same resources and support that were available to L.R. and that were the keys to success in her case. However, L.R.’s case has established a framework for asylum based on domestic violence. Now, at least, such women have a chance to gain protection in the United States.
The World Organization for Human Rights USA has recently published a