Attorneys Argue for Continuance of Criminal Victim Asylum

Immigration attorneys argue for continuing asylum for those foreign nationals who are victims of crimes in their home countries where government fails to address criminal aggression. Through a filing submitted by the American Bar Association (ABA) in late April, attorneys say the Department of Justice (DOJ) should maintain the current standard for asylum-seeking individuals as falling into a “particular social group.”

Outlining socially acceptable criminal behaviors sometimes exhibited in countries with high rates of asylum-seeking individuals, according to the ABA Journal, the brief states, “Such cases include fact patterns involving very serious crimes, such as female genital mutilation, severe domestic violence (including repeated beatings and rape), and incest.”

Immigration attorneys with the ABA filed the friend-of-the-court brief in response to a DOJ review of a case centering around an El Salvadoran woman asking for asylum in the United States as a means of escaping ongoing rape and abuse from her husband.

Attorney General Jeff Sessions assigned the review of the case to himself. In doing so, he asked for briefs both from parties directly involved in the case as well as from other parties with interest in the central legal questions in terms of “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application of asylum or withholding of removal.’”

To this, the ABA response argues a reversal in the current standards around “persecution by private actors would further victimize those most in need of protection.” The “particular social group” standard requires victims to also show “persecution or a well-founded fear of persecution because of membership in one of those groups.”

The standard of “persecution” as it pertains to private criminal activity– as opposed to state-sponsored crime– comes into play when government demonstrates an inability or an unwillingness to stop it.

Previous cases granting asylum to individuals identified as members of a “particular social group” include individuals experiencing forced prostitution; female genital mutilation; paternal physical and sexual abuse, fear of an “honor killing,” and gang rape perpetrated by a non government militia.