On August 9th, 2011, the National Immigrant Justice Center and pro bono attorneys from McDermott Will & Emery LLP obtained asylum for a woman from the Democratic Republic of the Congo (DRC) based on the harm that she suffered as a victim of sex trafficking.
This decision was unique in several ways. First, to establish asylum eligibility, an individual must demonstrate that she is unable to return to her "country of nationality" because of a well-founded fear of persecution there. In this case, the client's "country of nationality" was the DRC, but the majority of the harm that the client suffered occurred in Belgium, where the client was trafficked, and not in the DRC itself. However, the judge found that this harm was a direct and inevitable consequence of having been trafficked from the DRC and therefore constituted persecution of the client in the DRC.
Second, asylum applicants must establish that the persecution they suffered or feared was or will be on account of their race, religion, nationality, membership in a particular social group, or political opinion. In this case, the attorneys argued that the client suffered persecution on account of her membership in the particular social group of “young Congolese women who have participated in prostitution." While the Department of Homeland Security (DHS) argued that this social group was impermissibly circular because the client would be claiming that she was trafficked (her claimed form of persecution) because of her membership in the group of Congolese women who have been trafficked, the judge held that the government misunderstood the client's true claim: that she was trafficked because she was a young woman in the DRC who worked as a prostitute. The judge further held that this social group was viable under asylum law because age, gender, nationality, and former membership in a stigmatized profession such as prostitution all constitute immutable characteristics that can form the basis of a social group.
Finally, asylum applicants who establish past persecution on account of a protected ground are entitled to a rebuttable presumption of future persecution. If DHS rebuts that presumption by proving that there has been a fundamental change in circumstances or that the applicant could avoid future persecution by relocating to another part of her country of nationality, the applicant can still establish asylum eligibility by proving that she has a well-founded fear of persecution on another ground, that the past persecution was so severe that she is unwilling or unable to return to her country, or that she may suffer other serious harm if deported to her country of nationality. In this case, the judge found that even if DHS had rebutted the presumption of future persecution, the client was still eligible for asylum because she would suffer “other serious harm” if she were returned to the DRC. Specifically, the judge held that because the client is a young woman with no familial connections and limited income, and because a psychiatrist had determined that it would be "highly detrimental" for her to return to the DRC because of her traumatic experiences there, the client would be eligible for asylum under the "other serious harm" prong.