In court filings, the Department of Homeland Security (“DHS”) seems to be conceding the point that, under certain situations, a person who is a victim of domestic abuse may qualify for asylum in the U.S.   The identity of the woman in the case was not revealed in the court filings to protect her privacy and against possible retaliation by her husband.  The case involved a Mexican citizen and her two children who endured years of domestic abuse by her common law husband.  The woman’s husband beat her regularly.  He beat her whenever she defied him, or for no reason at all.  He also beat the couple’s children when they tried to stand up for their mother in defiance of him.  The woman attempted to escape from the abusive relationship many times, but he always managed to find her and force her back to their home.  She also sought help from the local Mexican police, but the police were not interested in getting involved with what they considered to be a private family matter.  Her appeal for police protection was usually in vain.  There was evidence presented at the asylum hearing that the social norms of Mexico tolerated abusive behavior of husbands against their spouses because a woman is considered to be property of her husband.  For this reason, the police and other authority figures did not take the woman’s complaints seriously.  Also, her husband appeared to be an influential and affluent person in the community, and was able to bribe the police or otherwise convince them to not get involved.  He even bragged to her that he owned the police.

The woman applied for asylum based upon persecution on account of her membership in a social group.  That is, “Mexican women in an abusive domestic relationship who are unable to leave.”  In applying for asylum, it is not enough to establish that the applicant suffered abuse.  Rather, the applicant must show that she suffered persecution on account of a protected characteristic.  Here, the woman claims that the protected characteristic is her membership in a social group as consisting of Mexican women in abusive domestic relationships who are unable to leave.

In the asylum arena, the definition of a social group is difficult to pull off because it requires a fine balance.  Taken to its logical conclusion, a social group could be comprised of any group of more than two persons.  The concept of a particular social group can be so amorphous as to make the restrictions imposed by asylum laws meaningless.  Asylum, after all, is meant to be a form of relief for certain individuals, not everyone.   There must be meaningful limitations; otherwise, the floodgates would be thrown completely open.  The U.S. Supreme Court, the Board of Immigration Appeals, and various other courts in the U.S. have grappled with the meaning of “particular social group” in cases which have spanned two decades.  The definition has been refined in a series of cases.  A person may be considered a member of a particular social group if she shared “immutable or fundamental characteristics” with other members of the group which she could not change or be forced to change.   “Social visibility” may also help determine whether a person belongs to a particular social group.  That is, do others within the same society see and discern the person in question as belonging a particular social group?  A social group must also have “particularity” in that the group would be recognized, in the society in question, as a discrete class of persons.

In its court filings, DHS criticized the woman’s conceptualization of her particular social group, arguing that it is too broad, and therefore, deficient for purposes of asylum.  However, DHS also took the extraordinary step of outlining the parameters of a reasonable application of the law based upon the facts of the woman’s case.  DHS discussed at length how a particular social group may be defined.  It offered alternative formulations of a particular social group which may qualify the woman for asylum, formulations which DHS acknowledged the woman did not articulate on her own.  DHS’s extensive line of reasoning is too lengthy to be discussed in detail here, but suffice to say it is a 180 degree turnaround from the position that it held in the past.  DHS’s court briefs also made it clear that the newly articulated position as set forth in the briefs  is the now the official government position on asylum cases involving victims of domestic abuse.   DHS’s newly developed position is a reversal of the position taken by the prior administration, who fought zealously in court proceedings that victims of sexual abuse do not qualify for asylum, and never came close to giving up this fight.

DHS also strongly suggested that the woman’s case be reconsidered by the immigration judge in order to give the woman the opportunity to develop facts which would allow her to establish that she qualifies for asylum based upon the guidance as set forth by DHS’s court filings.  Without sounding overly optimistic, this case is indeed a ray of hope to women who have been abused by their partners and who have been unable to receive assistance from the police in their countries.

In court filings, the Obama administration’s DHS lawyers seem to be lowering its defenses regarding the issue of whether a person who is a victim of sexual abuse may qualify for asylum in the U.S.   Senior government lawyers come close to conceding this point.  This is a reversal of the position taken by the Bush administration, who fought zealously in court proceedings that victims of sexual abuse do not qualify for asylum, and never came close to giving up this fight. 

A court filing or argument alone doesn’t create immigration policy, but the precedential nature of court decisions will bind future cases to the results of this case.  If the person in the case at hand prevails, her victory will surely open the flood gates for future asylum applications with similar circumstances.

More analysis to come when I fully review the filings.  For now, here’s a link to the story: http://www.nytimes.com/2009/07/16/us/16asylum.html?_r=1&hp

Ramos v. Holder (9th Cir.)

Twelve years after it was enacted, the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) is one of components of immigration law which is beginning to lose its usefulness with the passage of time, mostly because as each year passes fewer and fewer people qualify for its benefits.   This is not to say it is irrelevant, because it still offers a great deal of relief to the great number of people who are eligible for NACARA benefits, but it has little to offer for newer immigrants.  NACARA’s requirement that the applicant must have been physically present in the United States for at least seven years prior to applying for benefits is a severe barrier for most people.  The Ramos case has made the physical presence requirement even more burdensome, especially for children of NACARA beneficiaries.    

The Ninth Circuit found that minor children of NACARA applicants must personally meet the NACARA requirements, specifically the physical presence requirement, and not be able to rely on their parents’ status.  Ramos, the petitioner in this case, entered the U.S. from his home country of Guatemala in 2001.  The government immediately placed him in removal proceedings.  Among other forms of relief, he applied for NACARA benefits.  Ramos’ father had previously been granted permanent resident status pursuant to NACARA.  The immigration judge denied his application, finding that Ramos (1) did not meet the seven-year physical presence requirements for NACARA, and (2) his father’s physical presence cannot be imputed to him to satisfy this requirement.  On appeal, the Ninth Circuit agreed with the immigration judge, despite agreeing that Ramos met every other requirement.

Those who follow Ninth Circuit cases may be puzzled with this ruling because it seems inconsistent with its other rulings in similar cases.  For instance, in the Lepe-Guitron v. INS case, the court found that children of immigrants derive “domicile” status through their parents.  In the Cuevas-Gaspar v. Gonzales case, the court found that a parent’s “residency” may be imputed to a minor child in order for the child to qualify for the seven-year continuous residency requirement  for cancellation of removal.  In the Vang v. INS case, the court determined that a child of a refugee or asylee is generally entitled to the same legal status as her parent.  And recently in the Escobar v. Holder case, the court reaffirmed the holding of Cuevas-Gaspar and found that for purposes of satisfying the five years of lawful permanent residence required cancellation of removal, a parent’s status as a lawful permanent resident is imputed to the unemancipated minor children residing with that parent.

What’s the difference between the Ramos case, where he is claiming derivative status of his father’s physical presence, and the other similar cases where the applicant claimed derivative status of their parents’ residency?  According to the Ninth Circuit, the difference is between the state of mind and state of being.  Residency is a state of mind, or intent, because one can be a resident of a place without actually living in it.  For instance, a person could be a “resident” of one state while living in another if that person can establish that he or she does intend to relinquish or abandon his or her residence in the home state.  Out of state university students are the classic example of this concept.  On the other hand, physical presence is just that—being in a place.  You cannot intend to be somewhere.  Either you are, or you’re not.  Along these lines, the court found that it is acceptable to impute a parent’s residency to a minor child because it is legally impossible for such child to form an independent intent from his or her parents.  A child cannot intend to reside in another state because minor children do not have the means to live apart from their parents.  Therefore, a minor child’s state of mind has no consequence.  Physical presence is another matter because a child may indeed be physically separated from his or parent.   Subjective intent is not at issue because physical presence is purely objective, a corporeal matter, so to speak.  A parent’s physical presence cannot be imputed to a child for this reason.  To illustrate this point, the court noted that Ramos, prior to his coming to the U.S., had lived in Guatemala apart from his father (who lived in the U.S.) for almost ten years.

For all the above reasons, Ramos did not qualify for NACARA benefits because he could not meet the seven-year physical presence requirement.   Minor children must independently establish eligibility for NACARA benefits, even if their parents qualify.