Litigating Asylum Claims after Matter of AB

In Matter of AB, Attorney General Jeff Sessions reversed matter of ARCG which established the particular social group of Guatemalan women who are unable to leave their husbands. This particular social group paved the way for victims of domestic violence who are trapped in the culture of “machismo” in Latin America to seek and gain asylum in the United States. In the dicta of this case Sessions also questioned the viability of claims related to victims of gang violence from Latin America.

These stricter guidelines impact the majority of Zwaik, Gilbert, and Associates Asylum cases whose clients are from the northern triangle in Central America.Post AB our lawyers must become creative in defining both particular social group and demonstrating that the government is unable or unwilling to protect the asylum seeker.

First, a primary on Asylum law. To qualify for asylum an individual needs to have been persecuted or fear future persecution on account of their race, religion, nationality, political opinion or membership in a particular social group, and their government is unable and unwilling to protect them. The easiest way to understand Asylum is to break it down into five elements.

One: Persecution. Persecution is violence suffered in the past or the threat of violence in the future. Persecution does not need to be physical and in some cases death threats have been sufficient to establish persecution. The best evidence to establish persecution are any medical records or documentation showing injury, or proof of threatening messages.

Two: Nexus. Nexus means that the persecution is on account of the third element the group that you are claiming to be a member of. There needs to be a connection between the violence or persecution you suffered and the membership in a particular social group. For example, if you happen to be a member of an indigenous population but are robbed at gunpoint and can’t demonstrate they robbed you because of your ethnic background you would have failed the nexus requirement.

Three: is your group membership. Race, nationality, religion, and political opinion are pretty self-explanatory. Particular social group has always been the hardest to define and it has only grown harder since AB. Generally, a particular social group requires that three criteria must be met.

  • First, the social group must be focused on an immutable trait. Immutable in this context means that it is something that you are either unable to change or it is fundamental to your individual identity and you shouldn’t be required to change. For example, religion and marital status.
  • Second, your social group must be particular. The social group must have definite boundaries and cannot encompass every person.
  • Third, the group must be socially visible in society. It is not necessary for it to be a physical difference; visibility can be something that is obvious to the members in your society that sets you apart from others.

Four: the government must be unable or unwilling to be able to protect you.
If the person targeting you is a governmental official then we must prove that they are working in their official capacity.
If it is a private actor, such as a gang member or an abusive husband, who is persecuting you then it becomes necessary to demonstrate that the government is unable or unwilling to help you. This can be done through proving that the crimes were reported to the police and went unanswered or that there is a pattern of the government ignoring and not prosecuting similar crimes.

Zwaik, Gilbert, and Associates is exploring a possible definition of “particular social groups” as membership in a group because you violate social norms. In Cece v. Holder, a young woman living alone in Albania was found to be a particular social group. Cece feared being targeted by sex traffickers in Albania. An expert on Albania testified that it was anomalous for single women to live alone and that her circumstances would make her an ideal victim for traffickers. Cece has no access to family to protect her and the problem in Albania was widespread. Additionally, the court found that Albania is one of the worst countries for trafficking and that the government is not effective against the problem. This approach was also approved of in cases such as Azar Saraie v. INS, where she sought asylum based on her membership in a group which opposed the government and its treatment of women by refusing to wear traditional clothing and smoking. Alsoin cases such as In re Kasinga, where women sought asylum because they opposed the practice of female genital mutilation.

Creativity and attention to the circumstances surrounding an individual’s past and the culture in which they come from will play key roles in defining Particular Social Groups moving forward.