Asylum relief is available to individuals who are unable or unwilling to return to their country of nationality because of fear that they will be harmed because of past persecution or a well-founded fear of future persecution on account of one or more protected grounds, including race, religion, nationality, political opinion, or membership in a particular social group. The person must be in the U.S. or at a port of entry and, while here, they must file a petition that indicates that they fear going back to their home country. Asylum leads to a green card.
Persecution must be connected to a protected ground
It is important to understand that being a victim of violence in a country considered to be unsafe because of general violent conditions, civil strife, or war will likely not be enough to succeed on an asylum claim. Instead, the persecution suffered or feared to be suffered must be on account of race, religion, nationality, membership in a particular social group, or political opinion. Usually, claims where there is evidence of substantial violence against a particular race, religion, nationality, or individuals that have manifested a certain political opinion are generally not difficult to prove since the group and the reason for the violent behavior or persecution are usually easy to identify. However, this reality has begun to change especially in claims based on persecution of a particular social group. This category requires more substantial efforts to clearly define the group as well as to explain that the persecution is specifically focused on members of the group and not against all or most citizens of a country.
Currently there are conflicting appellate court decisions addressing the issue of proving cases based on membership to a particular social group. For example, for years a claim based on an asylum applicant having suffered domestic violence would have likely resulted in an approval of the application. These types of claims had a high rate of success because it was thought that persecution against a certain gender had similar defining characteristics as a group composed of members of a particular race, religion, or nationality. However, recently, the Attorney General issued a decision indicating that such a claim should be scrutinized because the Attorney General believed that the gender-based group was actually defined not by the gender of the group, but by the persecution experienced by the victims.
The reasoning by the Attorney General is flawed because, like claims based on race, religion, or nationality, most gender-based claims are based on violent acts that can only be perpetrated against a certain group or gender. This decision now exists in contradiction to gender-based claims based on the unfortunate and atrocious cases of women who suffered female genital mutilation that is widespread in certain countries — cases that had, previously, generally been approved. Similar to claims based on race, religion, or nationality, gender-based claims allege the widespread, intentional violence against a certain gender instead of incidental acts of widespread violence in a country that happens to include members of a certain gender.
Because of this decision by the Attorney General, care should also be taken in cases based on race, religion, nationality, and political opinion to provide evidence defining the group, including evidence that the group exists, and that individuals in the group share characteristics that are unchangeable and are recognized as socially distinct in a relevant society. Furthermore, an applicant should provide evidence demonstrating that the persecution is focused on the shared characteristic within a protected ground. This will help to avoid a decision finding that members of a proposed group just happened to have been swept up in general, untargeted violence that occurs in a particular country, or that a particular group does not really exist or is not viewed within society as distinct from the general population. Examples of evidence that helps focus on demonstrating persecution focused on a claimed group may include:
- In gender-based claims, evidence of social norms that prevent group members with the same gender from severing legal or social ties with a spouse or partner.
- Evidence of the unwillingness of government institutions or families to protect members of a particular group through the police or court system.
- Evidence of the unwillingness of the government to provide assistance, including through relocation, of members of a particular group.
- Evidence of widespread and tolerated violence against certain groups.
These types of evidence potentially serve to prove that a group shares unchangeable characteristics that are recognized within the society the group lives within and whose shared characteristics form the basis of the persecution.
In contrast, generally unsuccessful claims include those based on high rates of violence in an applicant’s country where there is little to no evidence properly defining a group or showing that violence is focused on a particular group. Examples of such cases include those where an applicant has suffered persecution by criminal organizations such as drug cartels or gangs where it appears that the violence is based on revenge, extortion, or the widespread violence caused by the criminal organization while conducting its criminal activities. As a result, always remember that no asylum case is an automatic win and that the asylum case with the best chance of success provides evidence defining a group, it’s characteristics and distinction, that the violence or persecution is based on the group’s shared characteristics.