Applying for asylum is one of the main forms of relief in immigration proceedings. In order to be granted asylum in the United States you must be able to demonstrate that you have a “well-founded fear of persecution” in your home country. The persecution you fear can be from the government of your country or from a group that the government is unable or unwilling to control.
However, the persecution you fear must be based on one of five categories. You fear of persecution in your home country must be on account of or due to your religious beliefs, political opinion, nationality, race or your membership in a particular social group. This article focuses solely on the last category, membership in a particular social group
Your social group must be based on an immutable characteristic, be socially visible, and particularly defined meaning that the group is defined in a manner sufficiently distinct and that the group would be recognized in society as a discrete class of persons.
There are a broad range of characteristics that groups of people share, and many are so fundamental to their individual identities that one cannot be expected to change them. Broadly, a particular social group is composed of people with similar backgrounds, social statuses, lineages, experiences, or habits.
For example, tribes or ethnic groups, nuclear family units, social classes, members or former members of the police or military (who may be targeted for assassination), occupational groups, gender, and sexual orientation have been found to constitute particular social groups by the United States government in asylum cases.
In an asylum case, it is necessary to prove that the persecution that one has experienced or fears in the future is directly motivated by your actual or imputed membership in a particular social group. Since the law does not specify exactly what constitutes a particular social group, a United States Asylum Officer or Immigration Judge must often decide this on a case-by-case basis.
On June 11, 2018, US Attorney General Sessions issued a precedent decision limiting Immigration Judges from granting asylum to most applicants who are victims of domestic or gang violence. However, Immigration Judges were also instructed to continue to rule on asylum claims on a case-by-case basis. So, this decision did not to categorically eliminate these claims for asylum.
Since each asylum claim is evaluated on a case-by-case basis, it is important to point out that a recognized particular social group in one country may not be a particular social group in another country. Married women who are abused by their partners in El Salvador, who cannot leave those relationships and cannot obtain help from the police, have been found to be cognizable social group in the past, whereas married women, in say, Germany who are in abusive relationships may not be a particular social group. This is due to the different legal protections and different cultural expectations allowing for very different treatment of abused women in those two countries.
Another important note is that the legal definition and standards associated with the category of membership in a particular social group is so poorly defined that the category is amorphous and malleable. Therefore, an experienced immigration attorney might be able to craft new arguments of why you should be considered a member of a new particular social group.
The lack of clear legal standards in this area also gives Asylum Officers and Immigration Judges great latitude in deciding who can satisfy the definition of membership in a particular social group. Some groups, such as women victims of domestic violence, have recently been more widely recognized. In particular where the asylum applicant suffered a great degree of abuse.
If you apply for asylum, you must submit Form I-589 and all supporting documentation to the USCIS or to an Immigration Judge if you are in removal proceedings. Generally, you must submit your application within one year of your arrival to the United States. Though there are numerous exceptions to this rule.
If you are granted asylum based on membership in a particular social group, you may apply for a green card one year after your application is approved. This is done by filing Form I-485 Application to Register Permanent Residence or to Adjust Status.
The experienced attorneys at Wani and Associates have numerous years of success in pursuing asylum claims, whether before USCIS or Immigration Court. If you believe you qualify for asylum, please call (703) 556-6626 to make an appointment to consult with one of our attorneys.