United States: Circumstances under which victims of domestic violence and gang violence are granted protection; protection offered to claimants who do not meet Refugee Convention grounds, but instead claim a risk to their life or a risk of torture, or cruel and unusual treatment (2016-August 2018)
1. Asylum Process
On a webpage providing information on the asylum process in the US, the UNHCR explains that
[t]here are two paths to claim asylum in the U.S. The affirmative asylum process is for individuals who are not in removal proceedings and the defensive asylum process is for individuals who are in removal proceedings. Removal proceedings are when the United States government orders that you be removed (deported) from the United States …
- Affirmative Asylum: A person who is not in removal proceedings may proactively apply for asylum through [the] U.S. government, with the U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). If the USCIS asylum officer does not grant the asylum application, the applicant is referred to removal proceedings, where he or she may renew the request for asylum through the defensive process and appear before an immigration judge. …
- Defensive Asylum: A person who is in removal proceedings may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice. In other words, asylum is applied for "as a defence against removal from the U.S." (UN n.d.)
2. Victims of Domestic and Gang Violence
A report by the Center for Gender & Refugee Studies (CGRS)  indicates that there was a "long history [in the US] of cases routinely recognizing social groups defined by gender and other immutable characteristics in domestic violence cases and beyond" (CGRS 6 July 2018, 7). In correspondence with the Research Directorate, an assistant professor of law at the University of Detroit Mercy, whose areas of expertise include immigration law and asylum in the US and who is also a member of the Canadian Association of Refugee Lawyers, indicated that claims pertaining to domestic or gang violence in the US
would usually be articulated as persecution on account of membership in a "particular social group," an area where adjudications and precedents have been quite inconsistent, but where avenues of relief have tended to be construed very narrowly. (Assistant Professor 20 Sept. 2018)
In correspondence with the Research Directorate, an associate professor at the University of Massachusetts in Amherst, who specializes in comparative refugee status determination and who has been studying Canadian refugee policies and programs since 2005, explained the following:
The [US] did not historically grant refugee protection, or any other kind of protection to victims of domestic violence or gang violence with any consistency. There may have been some people who were granted refugee status on those grounds, but there was no official guidance instructing decision-makers, and no precedent-setting cases that allowed for protection on these grounds. This reality shifted briefly in 2014, when the Board of Immigration Appeals (BIA) issued a decision in a case called Matter of A-R-C-G-. In that case, the BIA decided for the first time that Guatemalan women who are trapped in physically abusive marriages could potentially qualify for refugee protection. (Associate Professor 10 Sept. 2018)
Similarly, in correspondence with the Research Directorate, a professor emeritus at the University of Victoria in Canada, who specializes in immigration and refugee law, provided the following information:
Immediately prior to [11 June 2018], one could state with a high level of confidence that victims of domestic violence or of gang violence would be granted asylum in the [US], if they were able to establish, according to the received tests, that they faced a well-founded fear of persecution based on membership of a particular social group. In cases of persecution by private individuals or agencies, individuals would have to show that the government was unable to protect them.
In [Matter of] A-R-C-G-, the BIA had examined and clarified many earlier precedents and had identified "married women in Guatemala who are unable to leave their relationship" as a particular social group. (Professor Emeritus 12 Sept. 2018)
Citing BIA decisions , the Assistant Professor indicated that "claims based on gang recruitment or persecution have previously been found to fail to qualify as a cognizable particular social group" (Assistant Professor 20 Sept. 2018). According to the same source, based on a 2018 BIA decision , the BIA
now requires that asylum applicants in removal proceedings clearly delineate on the record before the immigration judge, the "particular social group" in which they claim membership. The BIA further held that it would not consider newly proposed particular social groups on appeal that were not presented before the immigration judge. (Assistant Professor 20 Sept. 2018)
2.1 Attorney General Decision of 11 June 2018
The Associate Professor noted that
the standards of protection for victims of domestic violence and gang violence are widely different in the [US] and Canada. This area of law is the point of greatest divergence between the two countries, and the divergence has never been greater than it is in the current moment. (Associate Professor 10 Sept. 2018)
According to sources, the US Attorney General issued a binding decision [on 11 June 2018] that overrules the decision of the BIA in Matter of A-R-C-G- (Professor Emeritus 12 Sept. 2018; Associate Professor 10 Sept. 2018; Assistant Professor 20 Sept. 2018). Other sources indicate that the Attorney General's decision is binding for US immigration judges (CNN 12 July 2018; The Independent 11 June 2018). In his 11 June 2018 decision on a Salvadorian domestic violence case (Matter of A-B-), the US Attorney General expressed the following opinion:
Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address. The mere fact that a country may have problems effectively policing certain crimes - such as domestic violence or gang violence - or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim. (US 11 June 2018, 320)
The Professor Emeritus further explained that "[a]lthough [the Attorney General] does not rule out the possibility that a victim of domestic violence or gang violence may be granted asylum, he emphasizes that such cases will be highly exceptional" (Professor Emeritus 12 Sept. 2018). The same source noted that "[d]ecision makers will likely adopt the general statements that victims of domestic and gang violence will rarely be granted asylum" (Professor Emeritus 12 Sept. 2018). According to the Associate Professor, the Attorney General's
opinion states that people who are victims of "private criminal activity" will only be eligible for refugee protection in "exceptional circumstances." Victims must also demonstrate that the government of their home country either "condoned the behavior or demonstrated a complete helplessness to protect the victim." This decision was effective immediately and binding on all Immigration Judges and US[CIS] officers. In other words, the decision affects all applications for refugee status, affirmative and defensive. This new precedent also applies to officers conducting "credible fear interviews" at ports of entry. These interviews are designed to determine whether asylum seekers are eligible to be scheduled for a refugee status determination hearing, or whether they can be summarily excluded from the [US]. (Associate Professor 10 Sept. 2018)
The Professor Emeritus similarly explained that
we may now say that it will probably only be in highly exceptional circumstances that asylum will be granted to victims of domestic violence or of gang violence. It is very unclear what these circumstances might be. Victims of domestic violence or gang violence are likely to meet either the response that there is no particular social group to which they belong, or the response that the evidence does not show that the government condones or is completely helpless in addressing the violence that they face, or a response that is a confused amalgam of these two responses. (Professor Emeritus 12 Sept. 2018)
A USCIS policy memorandum, providing guidance to USCIS officers "for determining whether a petitioner is eligible for asylum or refugee status," issued in accordance with Matter of A-B-, states that
[o]fficers should be alert that under the standards clarified in Matter of A-B-, few gang-based or domestic-violence claims involving particular social groups defined by the members’ vulnerability to harm may merit a grant of asylum or refugee status - or pass the "significant possibility" test in credible fear screenings, … or the "reasonable possibility" test in reasonable fear screenings. … [T]he home government must either condone the behavior or demonstrate a complete helplessness to protect victims of such alleged persecution. (US 11 July 2018, 10)
The Associate Professor explained that
the anecdotal evidence from attorneys who represent asylum seekers who are victims of gang violence and domestic violence suggests that since it was issued in June, the Matter of A-B- decision has had a sweeping and chilling effect on these types of claims. According to the decision and subsequent guidance issues by the Justice Department, it will be close to impossible for people to make successful claims on these grounds moving forward. … Many claims are not even being allowed, as they are dismissed at the credible fear interview stage, upon arrival, and these claimants are subject to expedited removal. Many other claims are being summarily dismissed. (Associate Professor 10 Sept. 2018)
3. Withholding and Deferral of Removal Under the Convention Against Torture (CAT)
According to sources, in the US, withholding of removal under the CAT is a form of protection (UN n.d.; Immigration Equality 21 Oct. 2014, 37; Associate Professor 10 Sept. 2018) that people fearing "'a clear probability of persecution'" can seek (Associate Professor 10 Sept. 2018). The UNHCR states that in order to qualify for relief under the CAT, applicants in the US "must prove that [they] are more likely than not to be tortured either directly by the government or with the 'acquiescence' of the government if returned to [their] country of origin" (UN n.d.). The Law Offices of Grinberg & Segal, a New York-based immigration law firm (The Law Offices of Grinberg & Segal n.d.a), indicates that "[w]ithout an element of the risk of prospective torture, an alien who was previously tortured would not be able to obtain either withholding of removal or deferral of removal under the [CAT]" (The Law Offices of Grinberg & Segal n.d.b).
The Associate Professor indicated that "[w]ithholding of removal has a higher burden of proof, and does not result in a full legal status. Thus, it becomes relevant when it is used as a safety net for asylum seekers who do not meet the refugee definition but can show that they will be persecuted if deported" (Associate Professor 10 Sept. 2018). Sources state that, concerning the withholding of removal under the CAT, there is no requirement that the feared torture be related to a protected ground (Assistant Professor 20 Sept. 2018; FIRRP Oct. 2011, 3). According to the Professor Emeritus, individuals who seek protection in the US based on a fear of gang violence or criminality "may be considered" under the CAT, "but such claims would not be permitted unless there is evidence of government acquiescence" (Professor Emeritus 12 Sept. 2018). The same source further stated that
[w]hile [Section] 97(1) of the [Immigration and Refugee Protection Act (IRPA)] provides refugee protection not only to those who face torture but also to those who face a risk to their life or a risk of cruel and unusual treatment or punishment, the [US] does not extend remedies to these latter individuals, unless they fit within the definition of a refugee [according to the Refugee Convention]. Applications based on CAT focus solely upon the danger of torture. (Professor Emeritus 12 Sept. 2018)
The Associate Professor indicated that withholding of removal requests "are considered at the same time as an asylum claim in the same hearing, but they have split standards" (Associate Professor 10 Sept. 2018). According to the instructions of form I-589, used to apply for asylum in the US, the form can also be used to apply for "withholding of removal under the [CAT] if [the applicant] checked the [relevant] box at the top of [p]age 1 of the form, or if the evidence [they] present indicates that [they] may be tortured in the country of removal" (US 16 May 2017, 1, 3). According to the instructions, "[o]nly immigration judges and BIA may grant withholding of removal or deferral of removal under the CAT" (US 16 May 2017, 3). The Professor Emeritus explained that
the USCIS does not have jurisdiction to grant protection under CAT. Only an immigration judge has that jurisdiction. Where the asylum claim before USCIS is unsuccessful, the application for protection under CAT will be carried over to the Immigration judge. Thus an application for protection under CAT may be commenced as part of an affirmative claim but since it will be determined after removal has been ordered it will be a defensive claim. Where a person has not made an affirmative claim and is brought before an Immigration judge in removal proceedings, they may file a defensive claim relating to asylum and CAT protection. (Professor Emeritus 12 Sept. 2018)
The Assistant Professor similarly stated that withholding or deferral of removal under the CAT "is available only defensively in removal proceedings" (Assistant Professor 20 Sept. 2018).
According to the Associate Professor, individuals "who may not qualify for either refugee status or withholding (usually because they have a criminal record and thus are ineligible for other forms of relief)" can apply for a deferral of removal under the CAT, which "has some exceptions for those who have been involved in terrorist activities or persecution" (Associate Professor 10 Sept. 2018). Similarly, Immigration Equality  notes, in a manual on asylum, that deferral of removal under the CAT "is appropriate for individuals who would likely be subjected to torture, but who are ineligible for withholding of removal, such as persecutors, terrorists, and certain criminals" (Immigration Equality 21 Oct. 2014, 37).
Title 8 of the US Code of Federal Regulations (CFR) provides the following:
§ 208.16 Withholding of removal under section 241(b)(3)(B) of the Act and withholding of removal under the Convention Against Torture.
(c) Eligibility for withholding of removal under the Convention Against Torture.
- For purposes of regulations under Title II of the Act, "Convention Against Torture" shall refer to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention ... The definition of torture contained in § 208.18(a) of this part shall govern all decisions made under regulations under Title II of the Act about the applicability of Article 3 of the Convention Against Torture.
- The burden of proof is on the applicant for withholding of removal under this paragraph to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.
- In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered, including, but not limited to:
- Evidence of past torture inflicted upon the applicant;
- Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;
- Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and
- Other relevant information regarding conditions in the country of removal.
- In considering an application for withholding of removal under the Convention Against Torture, the immigration judge shall first determine whether the alien is more likely than not to be tortured in the country of removal. If the immigration judge determines that the alien is more likely than not to be tortured in the country of removal, the alien is entitled to protection under the Convention Against Torture. Protection under the Convention Against Torture will be granted either in the form of withholding of removal or in the form of deferral of removal. …
(d) Approval or denial of application -
(1) General. Subject to paragraphs (d)(2) and (d)(3) of this section, an application for withholding of deportation or removal to a country of proposed removal shall be granted if the applicant's eligibility for withholding is established pursuant to paragraphs (b) or (c) of this section.
(e) Reconsideration of discretionary denial of asylum. In the event that an applicant is denied asylum solely in the exercise of discretion, and the applicant is subsequently granted withholding of deportation or removal under this section, thereby effectively precluding admission of the applicant's spouse or minor children following to join him or her, the denial of asylum shall be reconsidered. Factors to be considered will include the reasons for the denial and reasonable alternatives available to the applicant such as reunification with his or her spouse or minor children in a third country.
(f) Removal to third country. Nothing in this section or §208.17 shall prevent the Service from removing an alien to a third country other than the country to which removal has been withheld or deferred.
§ 208.17 Deferral of removal under the Convention Against Torture.
(a) Grant of deferral of removal. An alien who: has been ordered removed; has been found under § 208.16(c)(3) to be entitled to protection under the Convention Against Torture; and is subject to the provisions for mandatory denial of withholding of removal under § 208.16(d)(2) or (d)(3), shall be granted deferral of removal to the country where he or she is more likely than not to be tortured.
(b) Notice to alien.
- After an immigration judge orders an alien described in paragraph (a) of this section removed, the immigration judge shall inform the alien that his or her removal to the country where he or she is more likely than not to be tortured shall be deferred until such time as the deferral is terminated under this section. The immigration judge shall inform the alien that deferral of removal:
- Does not confer upon the alien any lawful or permanent immigration status in the United States;
- Will not necessarily result in the alien being released from the custody of the Service if the alien is subject to such custody;
- Is effective only until terminated; and
- Is subject to review and termination if the immigration judge determines that it is not likely that the alien would be tortured in the country to which removal has been deferred, or if the alien requests that deferral be terminated.
- The immigration judge shall also inform the alien that removal has been deferred only to the country in which it has been determined that the alien is likely to be tortured, and that the alien may be removed at any time to another country where he or she is not likely to be tortured.
(c) Detention of an alien granted deferral of removal under this section. Nothing in this section shall alter the authority of the Service to detain an alien whose removal has been deferred under this section and who is otherwise subject to detention. In the case of such an alien, decisions about the alien’s release shall be made according to part 241 of this chapter.
§ 208.18 Implementation of the Convention Against Torture.
- Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
- Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.
- Torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Lawful sanctions include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty, but do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture.
- In order to constitute torture, mental pain or suffering must be prolonged mental harm caused by or resulting from:
- The intentional infliction or threatened infliction of severe physical pain or suffering;
- The administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
- The threat of imminent death; or
- The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the sense or personality.
- In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. An act that results in unanticipated or unintended severity of pain and suffering is not torture.
- In order to constitute torture an act must be directed against a person in the offender’s custody or physical control.
- Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.
- Noncompliance with applicable legal procedural standards does not per se constitute torture.
(US 1 Jan. 2018, Sect. 208.16-18)
According to the instructions of form I-589,
[a]s implemented in [US] law, Article 3 of the [CAT] prohibits the [US] from removing you to a country in which it is more likely than not that you would be subject to torture. The [CAT] does not prohibit the [US] from returning you to any other country where you would not be tortured. This means that you may be removed to a third country where you would not be tortured. Withholding of removal under the [CAT] does not allow you to adjust to lawful permanent resident status or to petition to bring family members to come to, or remain in, the [US]. (US 16 May 2017, 4)
The Assistant Professor explained, regarding protection related to withholding or deferral of removal under the CAT, that "there are no derivative benefits for family members, no possibility for travel outside the US, and no pathway for permanent residency or citizenship" (Assistant Professor 20 Sept. 2018). Sources indicate that an applicant who is granted withholding of removal may be removed to a country other than the one to which withholding of removal applies (Assistant Professor 20 Sept. 2018; FIRRP Oct. 2011, 3; The Law Offices of Grinberg & Segal n.d.b) and that if conditions change in the applicant's country and the DHS believes it is safe for the applicant to return, the "DHS could start a new case in immigration court to try to convince a judge that [the applicant] should be sent back" (FIRRP Oct. 2011, 3). Immigration Equality similarly stated that the status associated with withholding of removal "can only be terminated if the individual's case is reopened and the DHS establishes that [they] are no longer likely to be tortured in [their] home country" (Immigration Equality 21 Oct. 2014, 37).
According to sources, deferral of removal under the CAT is a status that can be terminated (Immigration Equality 21 Oct. 2014, 37; Associate Professor 10 Sept. 2018; FIRRP Oct. 2011, 4) "more quickly and easily than withholding of removal if the individual is no longer likely to be tortured if forced to return to their home country" (Immigration Equality 21 Oct. 2014, 37). The Assistant Professor explained that it may be "terminated by the government through a process of diplomatic assurances against torture, or through reopening proceedings and presenting evidence relating to the likelihood of torture" (Assistant Professor 20 Sept. 2018). Sources note that applicants who have been granted deferral under the CAT can be detained (Assistant Professor 20 Sept. 2018; Immigration Equality 21 Oct. 2014, 37; Center for Immigrants' Rights Aug. 2014, 13) by the DHS if they are "deemed to be a threat to the community" (Immigration Equality 21 Oct. 2014, 37).
According to sources, applicants who have been granted withholding of removal under the CAT may obtain an employment authorization (Assistant Professor 20 Sept. 2018; Immigration Equality 21 Oct. 2014, 163; Center for Immigrants' Rights Aug. 2014, 13), "but [USCIS] is not required to issue [it]" (Immigration Equality 21 Oct. 2014, 163).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
 The Center for Gender and Refugee Studies (CGRS) provides "legal expertise, training, research and publications" and is based at the University of California Hastings College of the Law in San Francisco (CGRS n.d.).
 The Assistant Professor referred to Matter of S-E-G- of 2008, Matter of E-A-G- of 2008, Matter of M-E-V-G- of 2014, and Matter of W-G-R- of 2014 (Assistant Professor 20 Sept. 2018).
 The Assistant Professor referred to Matter of W-Y-C- & H-O-B- (Assistant Professor 20 Sept. 2018).
 Immigration Equality advocates for and represents LGBTQ immigrants in the US (Immigration Equality n.d.).
Assistant Professor, University of Detroit Mercy. 20 September 2018. Correspondence with the Research Directorate.
Associate Professor, University of Massachusetts, Amherst. 10 September 2018. Correspondence with the Research Directorate.
Cable News Network (CNN). 12 July 2018. Tal Kopan. "Trump Administration to Turn Away Far More Asylum Seekers at the Border Under New Guidance." [Accessed 21 Aug. 2018]
Center for Gender & Refugee Studies (CGRS). 6 July 2018. Matter of A-B-. CGRS Practice Advisory. [Accessed 13 Sept. 2018]
Center for Gender & Refugee Studies (CGRS). N.d. "About CGRS." [Accessed 13 Sept. 2018]
Center for Immigrants' Rights, Pennsylvania State University Dickinson School of Law. August 2014. Withholding-Only Proceedings: Toolkit. [Accessed 29 Aug. 2018]
Florence Immigrant and Refugee Rights Project (FIRRP). October 2011. How to Apply for Asylum, Withholding of Removal, and/or Protection Under Article 3 of the Convention Against Torture. [Accessed 21 Aug. 2018]
Immigration Equality. 21 October 2014. Immigration Equality Asylum Manual. [Accessed 28 Aug. 2018]
Immigration Equality. N.d. "About Us." [Accessed 28 Aug. 2018]
The Independent. 11 June 2018. Clark Mindock. "Trump Administration Blocks Victims of Domestic Abuse and Gang Violence from Claiming Asylum." [Accessed 24 Aug. 2018]
The Law Offices of Grinberg & Segal. N.d.a. "About Us." [Accessed 24 Aug. 2018]
The Law Offices of Grinberg & Segal. N.d.b. "Eligibility for Withholding of Removal and Deferral of Removal Under the Convention Against Torture." [Accessed 24 Aug. 2018]
Professor Emeritus, University of Victoria. 12 September 2018. Correspondence with the Research Directorate.
United Nations (UN). N.d. United Nations High Commissioner for Refugees (UNHCR). "Types of Asylum." [Accessed 21 Aug. 2018]
United States (US). 11 July 2018. Department of Homeland Security (DHS), United States Citizenship and Immigration Services (USCIS). Policy Memorandum. [Accessed 23 Aug. 2018]
United States (US). 11 June 2018. Department of Justice, Office of the Attorney General. Matter of A-B-, Respondent. [Accessed 23 Aug. 2018]
United States (US). 1 January 2018. Government Publishing Office (GPO). Code of Federal Regulations (CFR). [Accessed 28 May 2018]
United States (US). 16 May 2017. Department of Homeland Security (DHS) and Department of Justice. "I-589, Application for Asylum and for Withholding of Removal." [Accessed 21 Aug. 2018]
Additional Sources Consulted
Oral sources: Assistant professor of refugee and constitutional law; associate professor of immigration and refugee law; clinical professor of law whose areas of interest include immigration law and gender asylum; professor of law whose areas of interest include international refugee law; professor of law who has written on refugee law issues.
Internet sites, including: Daily Intelligencer; International Justice Resource Center; The New York Times; Organization of American States – Inter-American Commission on Human Rights; Reuters; Slate; Transactional Records Access Clearinghouse; Voice of America.