National foreigners who are victims of assault or domestic cruelty can apply for asylum based on domestic violence in the United States if they demonstrate certain circumstances.
If you are looking for info on the asylum process in the USA, do not hesitate to contact our New Jersey immigration lawyers at Curbelo Law. With us, you will be in excellent hands to request this immigration relief.
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Can I Apply For Asylum based on Domestic Violence In The United States In 2023?
National foreigners may qualify for political asylum if they show that they have been or fear persecution in their country of origin by their government, by individuals or by a group of their government. As a result, they must prove one of the following 5 grounds for persecution:
- Belonged to a social group.
- Political beliefs.
Despite the fact that there are a large number of applicants who claim to have the right to asylum for domestic violence in the United States, the reality is different.
The Citizenship and Immigration Services (USCIS) and the Board of Immigration Appeals (BIA) have repeatedly clarified that being a victim of domestic violence does not belong to a social group. This can be seen in the Matter of R-A-.
Eligibility for Asylum based on domestic violence
In summary, victims of domestic violence may be eligible for asylum but under very limited circumstances. Therefore, you can apply for asylum if:
- The violence perpetrated against the victim is motivated by one of the 5 previously mentioned reasons, and
- The government of the victim’s home country is unwilling or unable to protect the victim from the abuser.
Considerations To Take Into Account
According to more recent cases, the US government appears to be reconsidering the position of the former government executive regarding asylum based on domestic violence. For example:
- In the SA- Matter, the BIA granted asylum to a young woman who suffered constant physical abuse from her father. The attacker did not agree with her Muslim religious beliefs.
- Although BIA relied on the grounds of religious persecution, the assault and abuse suffered by the young woman was domestic violence.
- In another case; Matter of SB- , a woman proved to be physically and psychologically mistreated by her husband for 15 years. In addition, she showed that the government did not want to protect her, since her husband had strong political connections.
- Because of this situation, the immigration judge granted her asylum based on her belonging to a social group.
Recommendation For Cases Of Domestic Violence
These cases show that both the BIA and the Immigration Court are beginning to look at domestic violence cases in a different way. Therefore, they begin to recognize that victims of domestic violence are often members of a social group.
For these reasons, it is critical that victims of domestic violence are represented by a good immigration attorney who can present the best possible case.
Our attorney Carolina T. Curbelo has extensive knowledge in matters related to domestic violence. Therefore, do not hesitate to contact us if you are facing this difficult situation.
Asylum And Related Protections Against Deportation
Asylum seekers have to prove persecution based on a well-founded fear. However, if you are not eligible for asylum by law (for example, if it is due to specific criminal activity) you can generally apply for a stay of deportation.
- This can lead to a greater burden to show that the national foreigner is persecuted for one of the 5 reasons presented.
- The national foreigner can also seek protection through the Convention Against Torture (CAT).
- However, unlike asylum; which gives the alien the opportunity for adjustment of status and get the Green Card, CAT only prevents deportation to the country where they face persecution.
How Does The United States Government Define A Particular Social Group?
A particular social group is defined as an immutable characteristic. This means that it is a characteristic that the asylum seeker cannot change or it is so fundamental to their identity that they should not be required to change it.
- It is considered that they are immutable to the fact that they cannot leave their social group.
- When in an abusive relationship, the decision to end the relationship does not rest with the victim, as they are often under the control of their abuser.
- In addition, asylum seekers who claim to be part of a social group are required to be able to demonstrate that their social group is “distinct and particular.”
Generally, the use of a category other than “particular social group” excludes a large number of individuals who cannot demonstrate a reason separate from their prescribed gender role within a relationship, in the home, or in society at large.
Why Is Gender Not A Protected Ground For Immigrant Asylum Seekers?
US asylum laws are based on the International Refugee Convention, which was drafted in 1951.
This law does not have a gender category, but in the early 2000s, the United Nations indicated that gender should be included within the “social group” instead of creating a sixth category.
Example On The Category “Gender” For An Asylum matter
The Tahirih Justice Center and other advocates have commented that gender should be a protected ground for political asylum. So, let’s take for example the following case:
- Aliens arrive at the border, does not speak English and have experienced acute trauma.
- A border officer in uniform and with a weapon asks the aliens what they are doing there.
- The aliens replie that they are seeking asylum.
- The officer gives you them list of reasons to apply for asylum. However, in this list does not appear “gender”, but there is a social group. The chances that the aliens will look at the latter and answer that this is their case is very low.
Typically, in a state of desperation, some individuals check off another protected ground such as religion or race, which complicates their adjudication process.
While many victims of domestic violence are women, kids and men can also experience violence. Likewise, LGBTQIA+ individuals must be recognized in discussions of domestic violence and gender.
Check our section on LGBTQ+ immigration lawyer in New Jersey for more accurate information on this group.
Domestic Violence As A Cause For Persecution
Although “domestic violence” does not have a legal definition, this and related terms are often understood as:
- A threat, or
- The physical damage produced by an individual to another in their family, in their intimate relationship or in their home.
Common examples of this violence include:
- A husband beating his wife.
- Parents who threaten to hit their children.
- Adoptive parents sexually abusing their adoptive child.
- Mother-in-law hitting her daughter-in-law.
Women And Belonging To A Social Group
Women are often more likely than men to be victims of domestic violence.
- Societies dominated by men often try to limit the social roles that women have.
- Also, women may be forced to stay in a place where their abuse will be tolerated and rarely punished.
- Therefore, the vulnerability that women have to be victims of domestic violence does not constitute by itself a basis for belonging to a social group.
Eligibility To Qualify For A Social Group
Qualifying for a social group can be complex and requires a good definition for the social group.
In the case of asylum based on domestic violence, this could mean the inability of women to leave the domestic relationship they have. In addition, they must describe in detail the specific obstacles that would prevent you from leaving. This includes:
- Specific acts or threats of the persecutor, and
- The specific ways in which the country’s laws amplify this problem.
Therefore, in terms of asylum, applicants could be defined as “married women who cannot abandon their domestic relationship” and not as “women who are victims of domestic violence”.
Does The United States Provide Assistance To Asylum Seekers?
Generally, an asylum officer working for USCIS must ask all individuals at the border if they are seeking asylum. However, this is not always the case, so applicants can be detained by immigration.
- If applicants state their need for asylum, then they would go to a credible fear interview.
- This scenario can be somewhat traumatic for applicants, as it happens within hours or days of entering the US.
- Immigrants waiting for this interview often must wait in immigration detention until a judge reviews the Form I-589, Application for Asylum and Withholding of Removal.
This is usually the asylum process that most immigrants have to go through when they are detained at the border. Furthermore, many of the asylum seekers cannot afford a lawyer, which makes the process more complex.
Why Do Victims Of Domestic Violence Have A Chance To Get Asylum Again?
During the Donald Trump administration, women fleeing domestic violence were removed from one of the qualifying categories in 2018. While this decision was reversed, it may not be permanent.
- United States Attorney General Merrick Garland rescinded the decision set by the Trump administration on domestic violence asylum.
- This decision made it difficult for victims of gang violence and domestic violence to obtain political asylum.
- Asylum Seeker Advocacy Project (ASAP) Senior Policy and Immigration Adviser Leidy Perez-Davis commented that many national foreigners were likely deported back upon death.
- This is because they were deported to their countries where they had been severely abused and victimized.
- In 2019, the US denied the application for asylum or other forms of relief to 69% of national foreigners.
- In addition, the Syracuse University Transactional Records Access Information Center indicated that the number of aliens denied asylum increased from 9,716 in 2014 to 46,735 in 2019.
- Of course, this leads to a huge backlog in asylum cases. However, it is hoped that individuals who have made meritorious allegations of domestic violence may be granted asylum.
How Did The Failure Of The Decision Increase The Chances Of Asylum For Victims Of Domestic Violence?
The measure announced by the US Attorney General is based on President Joe Biden’s decision to create a more humane immigration system.
- The prosecutor indicated that the decision made during the Trump administration threatens to create confusion and discourage case-by-case asylum applications.
- President Biden has reversed a host of restrictive immigration policies by former President Trump.
- That being said, US immigration officials have expanded access to work permits and relief from deportation to certain immigrant victims of crime. This is while your visa cases are on hold.
- The director of government relations for the American Immigration Lawyers Association (AILA), commented that Trump had used the legal guide to close the doors to the US to those fleeing persecution.
- The prosecutor’s decision applies to both the immigration courts and the Board of Appeals overseen by the attorney general.
How Can We Help You In Your Domestic Violence Asylum Scenario In The United States?
As we have seen, being eligible for asylum based on domestic violence in the United States can be difficult to prove. In addition, it must also be proven who abused the victim and if they did it for one of the 5 reasons already explained.
- These processes can be complex and lengthy, so they should be addressed by an experienced attorney who cares about you.
- Therefore, the Curbelo Law Firm is the help you are looking for.
- Our firm specializes in asylum cases, domestic violence, and any type of immigration relief available to victims.
Violence against women specially, sadly, are cases that are not fully covered by the law due to how it is written. However, our attorney will fight hard to help you with your immigration status.
Call us today so we can figure out the best solution for you in the United States.