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Family ties and making an asylum case in immigration court

Seeking asylum

After an outburst of violence, horrific crimes and a gang war, the number of asylum claims filed by El Salvadorian nationals increased dramatically in the United States. Many of such cases involve claims related to violence or threats of violence by gang members, threats or attempts of forceful gang recruitment, and extortion by the gangs of those who they perceive as wealthy.

Most of such asylum claims are denied in the United States Immigration Courts. The reason is that the United States cannot protect all those who are suffering from general poor and dangerous conditions in their countries. The law simply does not provide for such a protection. (For the recent Board of Immigration Appeals cases on social group, see Matter of W-G-R, 26 I&N Dec. 208 (BIA 2014)  and Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014)).

However, one such case was recently granted by the Immigration Judge in New York. And here is why.

Mr. X (for the client’s privacy, I will not be using client’s real name) came from El Salvador. He passed his credible fear interview and promptly lodged his defensive asylum application with the immigration court. His claim involved gang threats, violence, and attempts to recruit his family members.

One may have concluded that Mr. X’s claim was no different from hundreds of those that get denied every day in courts and by asylum officers. However, there was one particular distinction in Mr. X’s case: He was able to demonstrate – and the immigration judge agreed with him – that the past persecution he suffered, and the future persecution he would suffer in El Salvador if he were to be removed there, would be caused, at least in part, by Mr. X’s membership in his own family.

The immigration judge followed precedent set forth in Celedon-Herrera v. Lynch, 627 Fed. Appx. 6, 7, 2015 U.S. App. LEXIS 16151, *1 (2d Cir. 2015), and concluded that a family may constitute a particular social group and Mr. X’s family was such a group. In the Celedon-Herrera case, the court emphasized:

[w]e have recognized that kinship ties or membership in a family “may form a cognizable shared characteristic for a particular social group.” Vumi v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007). And, “asylum may be granted where there is more than one motive for mistreatment, as long as at least one central reason for the mistreatment is on account of a protected ground.” Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014) (internal quotation marks omitted). Celedon-Herrera v. Lynch, 627 Fed. Appx. 6, 8, 2015 U.S. App. LEXIS 16151, *4 (2d Cir. 2015).

Like fingerprints on our hands that are all unique and different, so are the asylum cases – there are no two identical. However, the point made above should encourage the advocates to explore all possible angles of one’s asylum claim and help fighting bias towards applicants from certain regions.

Alena Shautsova Alena Shautsova is a New York immigration attorney focusing her practice on immigration waivers, asylum, family immigration, and removal defense. She graduated from Case Western Reserve University School of Law in 2006 with an LL.M. degree. She is a member of the ABA, AILA, and NYSBA.