It is sad that a circuit court feels compelled to remind the immigration courts to fairly analyze the evidence and legal arguments presented by non-citizens, but sadly, it is.
In Zometa-Orellana v. Garland, decided on November 2, 2021, the Sixth Circuit Court of Appeals became the first circuit court to re-establish the option of asylum for women escaping domestic violence in their native countries.
Ms. Zometa-Orellana arrived to the United States to escape her domestic partner in El Salvador who regularly beat and raped her. She applied for asylum and withholding of removal based on political opinion and membership in a particular social group (“PSG”). The PSG she proposed had to do with her status as a victim of domestic violence. The immigration judge and the Board of Immigration Appeals rejected such a group relying on the direction of Matter of A-B, which stated “claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” However, Matter of A-B was subsequently vacated in its entirety by the Attorney General, which means the BIA never properly evaluated Ms. Zometa-Orellana’s proposed PSG.
In remanding the case, the Sixth Circuit reminded the BIA and the immigration judge of their responsibility to provide protection where the asylum law requires it to be provided and to assess the application in its entirety. The court specifically instructed the immigration courts to consider the country conditions evidence submitted by Zometa-Orellana that the immigration courts previously failed to even acknowledge.
Ultimately, the Sixth Circuit did not grant Ms. Zometa-Orellana protection; it merely remanded the case to the immigration courts to properly consider all the evidence she submitted and to properly consider her legal arguments without disregarding them under the guise of instructions that have been vacated in their entirety. It is sad that a circuit court feels compelled to remind the immigration courts to fairly analyze the evidence and legal arguments presented by non-citizens, but sadly, it is. Thankfully, the circuit court did so in this case and will hopefully do so in other cases.
This decision does not mean Ms. Zometa-Orellana will be granted asylum. But hopefully it means she will be given a fair chance, which she was not before.
This case also shows us the importance of representation by a lawyer well-versed in asylum law and removal proceedings. Ms. Zometa-Orellana and her lawyer will need to articulate the details of her PSG, present evidence to establish her persecution was connected to the PSG and evidence of the country conditions that make it impossible for her to relocate within El Salvador or rely on the police for assistance.
At least she will hopefully be given a fair chance this time around.
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