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Recent Change to the Processing of Asylum and Convention Against Torture Applications

Current immigration law allows foreign nationals to apply for asylum within one year of entering the United States if they have suffered, or have a credible fear of suffering, persecution on the basis of:

  • Race;
  • Religion;
  • Nationality;
  • Membership in a particular social group; or
  • Political opinion.

If a person is granted asylum, he/she is able to eventually adjust status to legal permanent resident (i.e., become a green card holder).

If a person does not qualify for asylum, he/she will also receive consideration under our regulations implementing the United Nations Convention against Torture, which prevents an individual that is more likely than not to be tortured in his/her home country from  being deported back to that country.  If an individual successfully pleads his/her case under the Convention Against Torture,  then he/she must be removed to a country different from his/her home country but will not be able to adjust status to become a green card holder in the United States.

In the past several years, there have been immigration cases in which the category “membership in a particular social group” has been interpreted to include victims of domestic and gang violence.  Social groups, such as “abused women who are unable to leave their domestic relationships where they have children in common” or “individuals that have been actively recruited by a street gang and refused to join,” have been recognized and in limited cases have been successful in obtaining asylum or withholding of removal under the Convention against Torture.

Victims of domestic violence (who more often than not are women) and victims that are persecuted for refusing to join dangerous street gangs, frequently receive little to no protection from their governments either because of cultural beliefs regarding domestic violence or because of the governments’ impotence against powerful gangs in countries where the rule of law is not as strong as it is in the United States.

On June 11, 2018, U.S. Attorney General Jeff Sessions issued Interim Decision #3929, which overturns prior case law that allowed “membership in a particular social group” to be interpreted in such a way as to protect these types of victims.  Sessions justified his decision by explaining that these are victims of “private criminal activity” which cannot be the basis for an asylum or withholding application because “the asylum statute does not provide redress for all misfortune.”  Further, he explained that: “[t]he mere fact that a country may have problems effectively policing certain crimes – such as domestic violence or gang violence – or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”  Sessions reasoned that victims of domestic and gang violence do not suffer violence or human rights violations to a greater or more meaningful degree than the general public in their countries and therefore are not specific segments of the population that can be identified with shared, immutable characteristics.

Sessions closed his Decision by stating that “the asylum statute is not a general hardship statute” and that the phrase “membership in a particular social group” was not meant “to be some omnibus catch-all for solving every heart-rending situation.”  He offered the suggestion that these immigrants instead seek entry into the United States through alternate, “existing channels… instead of illegally entering the United States and claiming asylum.”

This Decision takes effect immediately and will be used to analyze and decide all current and future cases pending in immigration courts across the country.  Overriding this Decision would require Congress to amend the existing immigration laws or would require a change in administration.

If you have questions as to how this will affect your pending asylum or withholding of removal application, contact an attorney.

This is not intended to be legal advice.  You should contact an attorney for advice regarding your specific situation.

Jennifer S. Echevarria is an Associate with the firm and practices Immigration and Employment Law including U-Visas and wage violations.  She is bilingual in Spanish and can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.

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