What if you did everything right?
Meet Pilar*. She's a young woman who crossed the border into the United States from Guatemala. She left to escape her abusive husband, who followed her from pueblo to pueblo after she reported him. Fearing for her safety, she crossed the border into Texas. When she was detained, she told Border Patrol what happened, and was given a credible fear interview. She came to Atlanta and was given less than a month to get an attorney. When she went to court without an attorney, the judge gave her an order of deportation. She reported her abusive husband in Guatemala. She sought the help of an attorney. She showed up for her court dates. She did everything right. And now, she may be sent back to where her abuser can find her again.
Sadly, this isn't uncommon. The Huffington Post released an article last week discussing how harsh Atlanta immigration judges can be. In the 2015 fiscal year, Atlanta immigration judges denied 98% of asylum cases. Compare that to approval rates of 29% in Salt Lake City, 63% in Arlington, VA, and 89% in New York City.
To make a case for asylum (or refugee status)1, an individual must show that they have been persecuted or have a credible fear of persecution on account of one of five protected grounds: race, nationality, religion, political opinion or membership in a particular social grop. A particular social group can take all kind sof forms: gay men in Cuba who are targeted because of their sexual orientation; young women who are members of a particular tribe that practices female genital mutiliation who are opposed to the practice themselves; or members of a particular clan in Somalia. Recent, groundbreaking precedent allows women escaping domestic violence to be considered a "particular social group."2 Aside from just showing one of these characteristics, an individual must show that they are being persecuted, or run the risk of persecution because the persecutor knows about this characteristic. This is known as the nexus- showing how this characteristic (race, religion, etc.) has led to or could lead to persecution. Proving this is no small task. For example, the gay men in Cuba would have to be "out of the closet." They couldn't just be persecuted or treated differently because they seem "different." These five protected grounds also show that generalized violence isn't enough to grant asylum- the case must be made that the individual was threatened for being who they are, not just for being in the wrong place at the wrong time.
So why can the same case go before a court in Arlington and have a 50/50 shot, but almost certainly be denied in Atlanta? One of the reasons is that asylum cases can be denied on credibility. A judge can deny asylum for someone just because they don't believe them. Simply put, if you have more skeptical judges, more cases will be denied. This amount of latitude is one of many factors that leads to radically different results across the country.
Even when the case is appealed, the result more consistent with other states isn't always achieved. The Boad of Immigration Appeals (BIA) will overturn cases from Atlanta, explain why the case is being remanded, and then return the case with seemingly clear instructions. GAIN worked on one case where, after the BIA overturned the judge's decision, the judge ruled how he ruled before. Certainly this isn't the case with every judge, but these results are unfair to asylum seekers, their attorneys, and the American public at large. Especially at a time when the political atmosphere is focused on who can and should be able to enter the United States, immigration judges across the spectrum- those that deny 98% of cases in Atlanta and those that approve 89% in New York City- should be held accountable for their decisions.
A domestic violence case like Pilar's may not be the strongest asylum case, but it's not the weakest. Momentum is out there in courts to support women like Pilar, but the likelihood of her success in Atlanta is slim. Now, she hopes to file a motion to reopen her case, which, if granted, would allow her story to be heard. Until then, all she can do is wait.
*Names and other identifying information have been changed for confidentiality and security.
1. When applying for refugee status, the individual is outside of the United States, applying to come. When applying for asylum, the individual is already in the United States, and is applying to be able to stay. The individual could have come to the United States in a number of ways- tourist visas, student visas, or crossing the border.
2. Matter of A-R-C-G- et al, 26 I&N Dec. 388 (BIA 2014). If you have the time, I highly recommend reading this case. It's a fascinating read!