In The

Supreme Court of the United States

———————————————————

Carolina Abel, Petitioner,

v.

United States of America, Respondent.

———————————————

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Fourteenth Circuit

———————————————

PETITION FOR WRIT OF CERTIORARI

———————————————

BRIEF FOR PETITIONER

———————————————

Team 103

January 27, 2020.

i

REQUEST FOR ORAL ARGUMENT

Plaintiff-Appellee, Carolina Abel, respectfully requests oral argument. This appeal raises

important questions concerning the validity of a government regulation and whether an asylum

seeker had a well-founded fear of persecution. The Court must determine whether 8 C.F.R. §

208.13(c)(4) is substantially valid. The Court must also review the lower court’s determination

that there was not a well-founded fear of persecution. Accordingly, oral discussion of the facts

and the applicable precedent would benefit the court.

ii

TABLE OF CONTENTS

REQUEST FOR ORAL ARGUMENT ........................................................................................... I

TABLE OF CONTENTS ................................................................................................................ II

TABLE OF AUTHORITIES ........................................................................................................ III

STATEMENT OF JURISDICTION............................................................................................... 1

QUESTIONS PRESENTED ........................................................................................................... 1

STATEMENT OF THE CASE ....................................................................................................... 1

A. STATEMENT OF THE FACTS ................................................................................................... 1 B. PROCEDURAL HISTORY ......................................................................................................... 3

SUMMARY OF THE ARGUMENT ............................................................................................. 4

ARGUMENT .................................................................................................................................. 6

I. 8 C.F.R. § 208.13(C)(4) Is Substantially Invalid Because It Fails The Chevron Test. .... 6 A. Congress Spoke Directly To Whether An Asylum Seeker Can Be Denied Asylum Based On a Third Country, So 8 C.F.R. § 208.13(c)(4) Does Not Align With Congress’ Unambiguous Intent. ............................................................................................................ 6 B. Even If the Question Should Be More Narrowly Tailored And Congress Has Spoken To the Issue, C.F.R. § 208.13(C)(4) Is Not Based On A Permissible Interpretation Of the Statute As It Is Arbitrary, Capricious, And Manifestly Contrary To the Statute. ................ 9

II. Carolina Abel Has Suffered Past Persecution and Also Has A Well-Founded Fear of Future Persecution from Her Experiences in Sainte Michelle and Azteca. .......................... 15

A. The Physical Assaults Ms. Abel Experienced, Coupled with Imminent Death Threats, Constitutes Past Persecution .............................................................................................. 16 B. Ms. Abel also has a Well-Founded Fear of Future Persecution Because Threats Indicate a Well-Founded Fear of Future Persecution. ....................................................... 21

CONCLUSION ............................................................................................................................. 24

FOR THE FORGOING REASONS, THE PETITIONER, CAROLINA ABEL, RESPECTFULLY REQUESTS THAT THIS COURT REJECT THE DECISION MADE BY THE FOURTEENTH CIRCUIT COURT. ................................................................................... 24

RESPECTFULLY SUBMITTED, ................................................................................................ 24

_______________________......................................................................................................... 24

TEAM 103 .................................................................................................................................... 24

iii

Table of Authorities

Cases Altera Corp. & Subsidiaries v. Comm'r of Internal Revenue, 926 F.3d 1061 (9th Cir. 2019) 4,6 Baghdasaryan v. Holder, 592 F.3d 1018 (9th Cir. 2010) ...................................................... 18 Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) ........................................... 18 Cardoza-Fonseca v. U.S. I.N.S., 767 F.2d 1448 (9th Cir. 1985) .......................................... 22 Catskills Mts. v. EPA846 F.3d 492 ...................................................................................... 4,10 Chavarria v. Gonzalez, 446 F.3d 508 (3d Cir. 2006) ............................................................passim Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984) .passim Delgado-Sobalvarro v. AG of the United States, 625 F.3d 782 (3d Cir. 2010) .................... 8,9 Dhoumo v. Bd. of Immigration Appeals, 416 F.3d 172 (2d Cir. 2005) ...............................passim Gilca v. Holder, 680 F.3d 109 (1st Cir. 2012) ...................................................................... 5,22 Gulla v. Gonzales, 498 F.3d 911 (9th Cir., 2011) ................................................................. 3, 14 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ..................................................................... 3, 22 Kiem Hwa Tjoa v. Holder, 496 F. App'x 736 (9th Cir. 2012) .............................................. 23 Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2009) .......................................................... 23 La v. Holder, 701 F.3d 566–71 (8th Cir. 2012) .................................................................... 16, 17 Li v. Ashcroft, 356 F.3d 1153 (9th Cir.2004) (en banc) .......................................................passim Li v. Attorney Gen. Of U.S. 400 F.3d 157 (3d Cir. 2005) ....................................................passim Li v. Gonzales, 405 F.3d 171 (4th Cir. 2005) ....................................................................... 3 Mendoza-Pablo v. Holder, 667 F.3d 1308 (9th Cir. 2012) ................................................... 16 Mora-Moreno v. Keisler, 252 F. App'x 826 (9th Cir. 2007) ................................................. 23 Moreno v. Holder, 749 F.3d 40 (1st Cir. 2014) .................................................................... 19 Nikijuluw v. Gonzales, 427 F.3d 115 (1st Cir.2005) ............................................................ 17 Olmos-Colaj v. Sessions, 2018 WL 1542030 (1st Cir. 2018) ..............................................passim S.E.R.L. v. AG United States, 894 F.3d 535 ........................................................................ 7 Silva-Hernandez v. U.S. Bureau of Citizenship & Immigration Services 701 F.3d 356 (11th Cir. 2012) .....................................................................................................................................8 Singh v. INS 94 F.3d. 1353 (9th Cir 1996) ........................................................................... 20,21 Texas Dep't of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, (2015) ....................................................................................................................................21 U.S. v. Mead Corp., 533 U.S. 218 (2001) ............................................................................. 4,10

Statutes 8 U.S.C. § 1158 .....................................................................................................................passim 8 U.S.C.A. § 1101 .................................................................................................................. 15, 21

iv

8 U.S.C.A. § 1158 ................................................................................................................. 15, 21 Other

8 C.F.R. § 208.13(c)(4) .........................................................................................................passim Asylum Eligibility and Procedural Modifications, 84 FR 33829 .......................................... 14 B. Shaw Drake & Elizabeth Gordon, Vanishing Protection: Access to Asylum at the Border, 21 CUNY L. Rev. 9, 92, 134 (2017). .......................................................................................... 12 Implementation of the Agreement Between the Government of the United States of America and the Government of Canada Regarding Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR 69479, Dec. 29, 2004. .................................................................................. 11 Protocol relating to the Status of Refugees, 606 U.N.T.S. 267 ............................................passim Scott Rempell, Defining Persecution, 2013 Utah L. Rev. 283 (2013) .................................. 21 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 U.N.T.S., 85 .........................................................................................passim United Nations Convention relating to the Status of Refugees, 189 U.N.T.S., 137 .............passim World Bank, Refugee population by country or territory of origin, https://data.worldbank.org/indicator/SM.POP.REFG.OR (last visited Jan. 1, 2020). ........... 11

1

STATEMENT OF JURISDICTION

A statement of jurisdiction has been omitted in accordance with the rules of the UC Davis School of Law Asylum and Refugee Law National Moot Court Competition.

QUESTIONS PRESENTED

1. When a government agency publishes regulations that conflict with unambiguous laws

already passed by Congress, is the regulation substantially valid?

2. When an asylum applicant faces death threats and physical harm, as a result of growing

tension between the local government and marginalized political groups, does the applicant

have a well-founded fear of persecution?

STATEMENT OF THE CASE

A. Statement of the Facts

Carolina Abel (Ms. Abel) is a native citizen of Sainte Michelle, a small island nation in

the Caribbean. (R. at 1). Sainte Michelle is home to a small, but growing, religious group named

Stars and Comets. (R. at 1). Ms. Abel is a lifelong member of the Stars and Comets group. (R. at

1). Stars and Comets has a strong presence in the region and is very active in politics and local

government. (R. at 1). Members are often criticized, and subsequently blamed for local problems

because of their loyalty to the group, and their outspokenness towards the Sainte Michelle

government. (R. at 1-2). The tension has grown over the last few years due, in part, to Stars and

Comets increased criticism of the local government and the group’s effort to expand its political

presence in Sainte Michelle. (R. at 1-2). The government’s distaste for Stars and Comets has

2

spurred negative propaganda about the group, and many citizens share the government’s views.

(R. at 1-2).

The hostility towards Stars and Comets reached its peak when a political candidate’s

platform prioritized removing all Stars and Comets members from Sainte Michelle. (R. at 1-

2). Stars and Comets critics used the candidate’s platform as an avenue to channel their distaste

for the group. (R. at 2). During the election, violence against Stars and Comets members greatly

increased, with about one member attacked every day. (R. at 2). In wake of the violence, a small

group of Stars and Comets members gathered at the Sainte Michelle Capitol. (R. at 2). At their

peaceful protest, Stars and Comets members were attacked by counter protesters. (R. at 2). While

members from both groups were injured, four times as many Stars and Comets members were

badly injured, and six Stars and Comets members were killed. Moreover, all the uninjured Stars

and Comets protesters were arrested. (R. at 2).

Ms. Abel also experienced physical harm while in Sainte Michelle. (R. at 2). She was

accosted, threatened, and hit across the face. (R. at 2). Whenever she reported these violent

crimes, the police did nothing and claimed Ms. Abel deserved the harsh treatment because of her

political affiliations. (R. at 2). As a result, Ms. Abel decided to flee her home country. (R. at 3).

To save some money, Ms. Abel had to stop in the bordering country, Azteca, before making her

way to the United States through the Azteca border. (R. at 3).

Azteca is physically, and politically, close to Sainte Michelle. (R. at 1). The countries

share a border and are close economic partners. (R. at 1). Moreover, Azteca generally supports

Sainte Michelle in its political interests. (R. at 1). Thus, when Ms. Abel entered Azteca, she

experienced similar tension from the locals due to her affiliations with Stars and Comets. (R. at

3

3). For instance, Ms. Abel was robbed, taunted and assaulted, and the place she was staying was

regularly vandalized with death threats. (R. at 3). Moreover, the local government was unwilling

to protect Ms. Abel during this time. (R. at 3). For example, when she reported the violent

incidents or called out for help, the police merely watched Ms. Abel suffer physical harm and

emotional distress. (R. at 3). Ms. Abel stayed with her friend for a month, at which point she

traveled to the United States Border and applied for asylum due to her past persecution and

member of a disfavored group. (R. at 3).

B. Procedural History

The United States Court of Appeals for the Fourteenth Circuit received this case on

appeal from the Board of Immigration Appeals (BIA). (R. at 4). On September 1, 2019, The

Fourteenth Circuit affirmed the Immigration Judge’s (IJ) decision and had the same two-fold

reasoning: First, the court held that the incidents in Azteca neither met the persecution nor the

fear of future persecution standard. (R. at 4-12). The court reasoned that because Ms. Abel did

not adequately prove she suffered physical harm she did not face persecution and, therefore, was

not entitled refugee status. (R. at 12). Second, Ms. Abel was ineligible for asylum under 8

C.F.R. § 208.13(c)(4), because she travelled through Azteca before arriving at the southern

border. (R. at 9). Therefore, the initial analysis did not involve her time in Sainte Michelle. (R.

at 9). On November 10, 2019, petitioner filed an appeal for this court to consider (1) whether 8

C.F.R. §208.13(c)(4) is substantially valid, and (2) whether Ms. Abel has a well-founded fear of

persecution.

4

SUMMARY OF THE ARGUMENT

8 C.F.R. § 208.13(c)(4) is substantially invalid because it fails the Chevron test. The two-

step test requires the Court to establish whether Congress has spoken directly to the issue by

looking at its text and structure. Altera Corp. & Subsidiaries v. Comm'r of Internal Revenue, 926

F.3d 1061, 1075 (9th Cir. 2019). If Congress has spoken to the specific issue outlined in the

statute, then the Court must defer to the “unambiguously expressed intent of Congress.”

Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).

Congress spoke directly to this issue in 8 U.S.C. § 1158(a)(2)(A), which established that in order

to deny an asylum application based on a safe third country, the refugee must have stopped in a

country with which the United States has signed a bilateral or multilateral agreement. 8 U.S.C. §

1158 (2008). The second step of the Chevron test requires the court to examine if the statute is a

reasonable construction. Chevron, 467 U.S. at 843. If Congress has not spoken to the question at

issue, any reasonable, permissible construction of the statute will be upheld by the Court. U.S. v.

Mead Corp., 533 U.S. 218, 229 (2001). A reasonable construction is one that is not “arbitrary,

capricious, or manifestly contrary to the statute.” Catskills Mts. v. EPA 846 F.3d 492, 507 (citing

Chevron, 467 U.S. at 844) 8 U.S.C. § 1158(b)(2)(C) gives the Attorney General the power to

make additional limitations for asylum seekers, provided they are consistent with the rest of the

statute. 8 U.S.C. § 1158 (2008). As a result any construction that conflicts with the

Congressional statute, is impermissible. Ms. Abel contends that even if the question should be

more narrowly tailored and Congress has not spoken to the issue, C.F.R. § 208.13(c)(4) is not

based on a permissible interpretation of the statute as it is arbitrary, capricious, and manifestly

contrary to the statute.

5

Ms. Abel has a well-founded fear of persecution and is therefore a refugee and entitled to

asylum. Persecution is defined as “the infliction of suffering or harm . . . in a way regarded as

offensive.” Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.2004) (en banc) (internal quotation

marks omitted). Threats can be considered persecution if they are concrete and imminent in

nature. Chavarria v. Gonzalez, 446 F.3d 508 (3d Cir. 2006). For example, death threats coupled

with robberies, or repeated violent threats can rise to the level of persecution. Id. Physical harm

is not required to establish an applicant has suffered past persecution. As such, the determination

of whether an applicant has suffered persecution is a fact specific inquiry, and the decision must

be made based on the totality of the circumstances surrounding the application. Id.

However, if an applicant does not adequately prove they have suffered past persecution,

they may still obtain refugee status if they have a well-founded fear of future

persecution. Gilca v. Holder, 680 F.3d 109, 116 (1st Cir. 2012). To demonstrate a well-founded

fear of future persecution, the applicant must show both a subjective and an objective fear of

future persecution. The subjective component involves a genuine fear of persecution, while the

objective component requires that a reasonable person in the applicant’s position would also fear

future persecution. Circuit courts have found that violent threats are objectively reasonable

because threats are often an indication of future persecution.

Ms. Abel is entitled to refugee status. First, the violent, reoccurring, threats that were

imminent in nature are considered persecution. (R. at 2). For example, in Sainte Michelle, Ms.

Abel was physically harmed and regularly threatened. (R. at 2). Moreover, in Azteca, Ms. Abel’s

residence was vandalized with death threats and she was harassed and assaulted by locals. (R. at

3). In both Sainte Michelle and Azteca, the local governments condoned this mistreatment. (R. at

6

2-3). Second, Ms. Abel also has a well-founded fear of future persecution. Ms. Abel satisfied the

subjective component because she genuinely fears for her safety if she were to return to either

Sainte Michelle, or Azteca. Moreover, the repeated threats, assaults, and harassment coupled

with the longstanding political tension in the region would cause a reasonable person to fear for

their safety. (R. at 1-3). Therefore, Ms. Abel is entitled to refugee status, and must be granted

asylum.

ARGUMENT

I. 8 C.F.R. § 208.13(C)(4) Is Substantially Invalid Because It Fails The Chevron Test.

A. Congress Spoke Directly To Whether An Asylum Seeker Can Be Denied

Asylum Based On a Third Country, So 8 C.F.R. § 208.13(c)(4) Does Not

Align With Congress’ Unambiguous Intent.

Congress directly established whether an asylum seeker can be denied asylum based on a

third country, so 8 C.F.R. § 208.13(c)(4) does not align with Congress’ unambiguous intent. In

order to determine whether a regulation is valid, the court applies the two-step framework used

in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc.. 467 U.S. 837 (1984). The

Court first looks to establish if “Congress has directly spoken to the precise question at issue.”

Chevron, 467 U.S. at 842. Next, the Court interprets the regulation based on its text and

structure. Altera Corp. & Subsidiaries v. Comm'r of Internal Revenue, 926 F.3d 1061, 1075 (9th

Cir. 2019). If Congress has spoken to the specific issue outlined in the statute, then the Court

must defer to the “unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842.

According to 8 U.S.C. § 1158(a)(2)(A), asylum seekers traveling through a safe third country are

barred from applying for asylum in the United States provided that there is a “bilateral or

7

multilateral agreement, to a country [. . .] in which the alien's life or freedom would not be

threatened on account of race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1158 (2008). A safe third country within the meaning of this

statute is deemed such “by virtue of having negotiated a bilateral or multilateral treaty

establishing that status.” Dhoumo v. Bd. of Immigration Appeals, 416 F.3d 172, 175 (2d Cir.

2005). An asylum seeker is ineligible if they arrive in the United States via the southern land

border if they travel through at least one country outside of their country of citizenship or

nationality unless the can show that they applied for and were denied asylum in a country they

traveled through or if they only traveled through countries that were not parties to the 1951

United Nations Convention relating to the Status of Refugees (hereinafter UNCSR), the 1967

Protocol Relating to the Status of Refugees (hereinafter PRSR), or the United Nations

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(hereinafter CAT). 8 CF.R. § 208.13 (2019)

In reviewing whether a regulation is substantially valid subject to a Chevron challenge,

the court will “review de novo any legal challenge to the application of that interpretation.”

S.E.R.L. v. AG United States, 894 F.3d 535, 543.

The first step of the Chevron test examines whether Congress has spoken to the question

at issue. As the dissent acknowledges, the question is whether Congress has directly decided if

an asylum seeker can be denied asylum based on a third country. (R. at 13). 8 U.S.C. §

1158(a)(2)(A) clearly establishes the safe third country exception, allowing an applicant to be

removed to the third country in question. 8 U.S.C. § 1158 (2008) However, an applicant can only

be removed if that country has negotiated a specific, bilateral or multilateral treaty with the

United States. See Dhoumo, 416 F.3d 172. As a result, Congress has directly addressed whether

8

an applicant may be denied entry based on a third country. The majority opinion in the

Fourteenth Circuit seeks to more narrowly define this question and address whether Congress

has decided whether an asylum seeker may be denied asylum when “they arrive at our southern

border after going through at least one other country outside of their home country.” (R. at 5).

However, this extremely narrow construction completely misses the true question at issue.

In Silva-Hernandez v. U.S. Bureau of Citizenship & Immigration Services., the Court

found that an immigration statute had clear, unambiguous language when reading the statute for

its text. 701 F.3d 356, 362 (11th Cir. 2012). The Silva-Hernandez Court read the Cuban

Adjustment Act to say that the attorney general has discretion to adjust immigrant status for the

children and spouses of certain Cuban immigrants, regardless of their citizenship. Id. at 363.

When the language is clear, the court does not need to consider legislative history. Id. at 363

citing Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002). As a result of the clear language,

the court overruled the Immigration Service Adjudicator’s manual because it conflicted with the

statute.

Here, Ms. Abel asserts that 8 U.S.C. § 1158(a)(2)(A) is clear in its plain language. Where

Congress says that an immigrant can be removed to a country with a “bilateral or multilateral

agreement” with the United States to ensure that they would not be persecuted, they could have

easily stated that they were referring to specific United Nations’ Agreements, or that such an

agreement could substitute for a specific agreement with the United States. 8 U.S.C. § 1158

(2008) As in Silva-Hernandez, there is no other reasonable way to interpret that statement.

Additionally, Courts have previously ruled that even when two concepts are similar, the

law can only explicitly be applied to Congress’ intended meaning. In Delgado-Sobalvarro v. AG

of the United States, the court ruled that while the law allowed for adjusted status of paroled

9

immigrants, parole and conditional parole are separate, and therefore conditional parole did not

meet the requirements for adjustment. Delgado-Sobalvarro v. AG of the United States, 625 F.3d

782, 786-787 (3d Cir. 2010). The Court felt that if Congress intended to extent the right to

Conditional parolees, they would have specified that in the law. Id. at 786.

Similarly, In Ms. Abel’s case, though both provisions intended to establish asylum via a

safe third country, Congress’ meaning is expressly different than what the Department of

Homeland Security (DHS) and the Department of Justice (DoJ) interpret. While there is only one

country currently that has a safe third country agreement under the congressional statute, the

DHS and DoJ regulation applies to nearly every United Nations member. UNCSR, supra 137;

PRSR supra 267; CAT supra 85. If that was Congress’ intent, the legislation would be useless.

While the provisions use similar terms of art, they have expressly different meanings, making the

DHS and DoJ regulation substantially invalid.

Congress directly established whether an asylum seeker can be denied asylum based on a

third country, so 8 C.F.R. § 208.13(c)(4) does not align with Congress’ unambiguous intent

because the plain language of the statute is clear.

B. Even If the Question Should Be More Narrowly Tailored And Congress Has

Spoken To the Issue, C.F.R. § 208.13(C)(4) Is Not Based On A Permissible

Interpretation Of the Statute As It Is Arbitrary, Capricious, And Manifestly

Contrary To the Statute.

8 C.F.R. § 208.13(c)(4) is not based on a permissible interpretation of the statute because

it is arbitrary, capricious, and manifestly contrary to the statute. If Congress has not spoken to the

question at issue, the Court must examine whether the regulation is a “permissible construction

10

of the statute.” Chevron, 467 U.S. at 842. Any reasonable, permissible construction of the statute

will be upheld by the Court. U.S. v. Mead Corp., 533 U.S. 218, 229 (2001). A reasonable

construction is one that is not “arbitrary, capricious, or manifestly contrary to the statute.”

Catskills, 846 F.3d at 507. 8 U.S.C. § 1158(b)(2)(C) provides the basis for creating 8 C.F.R. §

208.13(c)(4). 8 U.S.C. § 1158 (2008). 8 U.S.C. § 1158(b)(2)(C) gives the Attorney General

authority to “establish additional limitations and conditions, consistent with this section, under

which an alien shall be ineligible for asylum under paragraph (1).” 8 U.S.C. § 1158 (2008) Any

additional limitations would need to be consistent with 8 U.S.C. § 1158, which outlines the basis

for granting asylum. 8 U.S.C. § 1158 (2008). While any person who is present in the United

States or arrives at the border can seek asylum, there are a few exceptions. 8 U.S.C. § 1158

(2008) These exceptions, apply in circumstances where an asylum applicant might pose a danger

to United States citizens or if the applicant was safely settled in another country before seeking

asylum in the United States. 8 U.S.C. § 1158 (2008).

While the Circuit Court determined that nothing in the statute expressly prohibits a

regulation like 8 C.F.R. § 208.13(c)(4), the limitation the statute imposes places asylum seekers

in danger of continuing persecution because of the lower standard the statute creates. (R. at 8).

The safe third country exception found in 8 U.S.C. § 1158(a)(2)(A) allows an asylum applicant

to be removed to a safe third country, provided the US has a bilateral or multilateral treaty with

the country in question. 8 U.S.C. § 1158 (2008). In contrast, 8 C.F.R. § 208.13(c)(4) not only

expands the Congressional statute 8 U.S.C. § 1158(a)(2)(A) but provides an arbitrary and

impermissible interpretation of the Congressionally established definition of a safe third country.

8 C.F.R. § 208.13 (2019). While it examines whether an asylum seeker can be denied entry to the

US based on a third country, it does so on the basis of treaties signed by the US with individual

11

countries and not the UNCSR or CAT as outlined in 8 CF.R. § 208.13(c)(4)(iii). 8 C.F.R. §

208.13 (2019); 8 U.S.C. § 1158 (2008). 169 countries are signatories to the CAT, while the

United States’ only has one 8 U.S.C. § 1158(a)(2)(A), compliant safe third country agreement.

Implementation of the Agreement Between the Government of the United States of America and

the Government of Canada Regarding Asylum Claims Made in Transit and at Land Border Ports-

of-Entry, 69 FR 69479, Dec. 29, 2004.

While the intent of both provisions is to ensure that asylum seekers eventually settle in

places that where they will not experience the kind of treatment they are fleeing, the implications

are different, as signing an individual treaty with the United States is a different standard than

signing on to resolutions passed by the United Nations. Additionally, while the UNCSR and

PRSR are largely similar, the US did not sign the UNCSR, and as a result, has no formal

understanding with countries that only signed that document. United Nations Convention

relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S, 137; Protocol Relating to the

Status of Refugees, Jan. 31, 1967, 606 U.N.T.S, 267.

Ms. Abel stopped in Azteca, where she continued to experience persecution as a result of

her Stars and Comets affiliation. Azteca does not have an independent bilateral agreement with

the US, but they are a party to the UNCSR, PRSR, and CAT. (R. at 1). Under Congress’

regulation and explanation of a safe third party, Ms. Abel could avoid persecution in Azteca and

apply for asylum in the US. Under 8 CF.R. § 208.13 (c) (4), Ms. Abel would need to apply for

asylum in Azteca, despite the fact that she would continue to be persecuted in Azteca the same

way she was persecuted in Sainte Michelle. 8 CF.R. § 208.13 (2008)

While the UNCSR, PRSR, and CAT provide guidance for the fair treatment of people,

the expansive list of signatories would be limiting for asylum seekers, as some of these countries,

12

as evidenced by the United States’ history of granting asylum to their citizens, would not be safer

for asylum seekers. See UNCSR, supra 189 U.N.T.S, 137; PRSR, supra 606 U.N.T.S, 267; CAT,

1465 U.N.T.S. 85. Even the US-Canada safe third country agreement is affected by the

differences in each countries’ asylum law. B. Shaw Drake & Elizabeth Gordon, Vanishing

Protection: Access to Asylum at the Border, 21 CUNY L. Rev. 9, 92, 134 (2017). These

differences mean that protections available in one country, would not be available in the other,

which could negatively impact asylum seekers. Id. at 134. According to the World Bank,

Afghanistan, Somalia, Sudan, and Congo were ranked among the top countries for producing

refugees in 2018. World Bank, Refugee population by country or territory of origin,

https://data.worldbank.org/indicator/SM.POP.REFG.OR (last visited Jan. 1, 2020).

All these countries are parties to the PRSR. PRSR, supra 606 U.N.T.S, 267. As written,

traveling through any of these countries, despite the persecution present in those countries,

would negate an application for asylum in the United States. In fact, of the United Nation’s 193

member countries, 169 signed CAT. CAT, supra, 1465 U.N.T.S. 85. The overwhelming majority

of countries that are now excluded for asylum seekers makes the legislation arbitrary, as the US

would essentially be denying asylum to anyone who crossed through another country to get the

United States if 8 C.F.R. § 208.13(c)(4)—this is manifestly contrary to the goals of the safe third

country exception laid out in U.S.C. § 1158(a)(2)(A).

In regard to safe third-country agreements, perhaps what is most telling is the way the

government has interpreted these rules. Guatemala, Honduras, and El Salvador are all parties to

the PRSR and CAT. PRSR, supra 606 U.N.T.S, 267; CAT, supra, 1465 U.N.T.S. 85. However,

in the summer of 2019, the United States began negotiating what appear to be safe third country

agreements with El Salvador and Guatemala. Asylum Eligibility and Procedural Modifications,

13

84 FR 33829, July. 16, 2019. If the executive branch interpreted U.S.C. § 1158(a)(2)(A) to

include United Nations’ agreements as bilateral or multilateral treaties, these agreements would

not be necessary, as both countries meet the requirement set forth by the C.F.R. § 208.13(c)(4).

These new individually negotiated treaties are necessary to establish safe third countries

however, because C.F.R. § 208.13(c)(4) is an impermissible limitation.

The Fourteenth Circuit reasons that a person would not travel to a country more

dangerous than their home country, and as a result, any country they travel through is one they

deem safe. (R. at 9). This faulty logic ignores the glaring likelihood that people might put

themselves in a more dangerous situation temporarily if there is the promise of safety in the

future. Additionally, how long the trip takes, whether they have other persecuted family

members living in the third country, or even associated costs are all factors that might impact a

person’s travel from their home country to the United States to seek asylum.

For example, in Gulla v. Gonzales, the Court rejected the notion that traveling through

another country was grounds for deny asylum. Gulla v. Gonzales, 498 F.3d 911 (9th Cir., 2011).

Mr. Gulla is a Catholic, Iraqi native. Id. at 913. He also is Chaldean, an ethnic minority in the

nation. Id. at 913. He fled the country after experiencing discrimination and abuse, and traveled

through Turkey, Greece, and Mexico before entering the United States at the southern border. Id.

at 913-14. The Immigration Judge, held that as a discretionary reason, traveling through three

other countries was, in part, grounds for denying an asylum application. Id. at 913. However,

when the court reviewed the evidence they realized that Turkey and Greece were not safe or

feasible options for the Gulla family and even acknowledged that there are other factors that

people consider when seeking asylum besides just settling in the first country they reach

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including whether they knew people in the country, felt safe around law enforcement or could

find work. Id. at 916-19.

While Ms. Abel was marginally safer in Azteca than she was in Sainte Michelle, she still

experienced persecution. (R. at 3.) She risked persecution in Azteca understanding that it was

closer to the safety she could experience in the United States. As in Gulla, Abel still experienced

persecution while traveling through a third country. Similar to the petitioner in Gulla, her stay in

Azteca was brief, and she had friends who were also members of the Stars and Comets living

safely in the United States. (R. at 2-3.) Having friends in Azteca made it convenient to stop there,

but still not safe. Additionally, as part of her persecution, Abel was stopped for jaywalking seven

times in Azteca and when she was attacked with rocks and bottles, police refused to help her. (R.

at 2-3.) It was neither safe nor feasible for Ms. Abel to stay in Azteca, and the DHS and DoJ

regulation further subjects her to persecution.

In Dhoumo, the Second Circuit granted the petitioner’s claim for asylum after the BIA

affirmed an IJ’s decision to reject those claims without properly exploring his nationality. 416

F.3d 172 at 176. Before the court could determine whether firm resettlement or safe third country

exceptions applied, they would need to establish a well-founded fear of persecution in China, the

country of his nationality. Id. at 176. In its explanation, however, the court expressed that no

safe third country agreements were in place (at the time), so this would not apply. Id. at 175.

In Ms. Abel’s case, as in Dhoumo, currently, there are no enacted safe-third party country

treaties that apply. (R. at 1). Ms. Abel traveled from Sainte Michelle to Azteca where she briefly

stayed and continued to experience persecution. (R. at 2-3). Though Azteca is a party to the

relevant United Nations resolutions, they do not have a specifically negotiated treaty with the

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United States. (R. at 1). As 8 U.S.C. § 1158(a)(2)(A) is specific in its requirements, 8 C.F.R. §

208.13(c)(4) is substantially invalid because it improperly limits the rights of asylum seekers.

The United States is a destination for asylum seekers because the country has a reputation

for protecting and preserving civil liberties and human rights. The rule as written, does nothing

to help those in danger, something the United States has always prided itself on. Allowing the

lower standard established by 8 C.F.R. § 208.13(c)(4) to persist, would be to abandon refugees

who must travel through any country outside of the United States—which, for many, would be

logistically impossible. 8 C.F.R. § 208.13(c)(4) fails the Chevron test in both steps and does not

connect to the purpose of the legislation, the regulation is unconstitutional and should be struck

down because it does not comply with 8 U.S.C. § 1158(a)(2)(A).

Congress has directly addressed the question of whether a person may be denied entry

based on a third country, so the court must defer to their interpretation. Nowhere has Congress

determined that the limitation imposed by the DHS and DoJ acceptable. Additionally, the DHS

and DoJ regulation is an arbitrary and impermissible construction that violates the spirit of the

Congressional statute.

II. Carolina Abel Has Suffered Past Persecution and Also Has A Well-Founded Fear of Future Persecution from Her Experiences in Sainte Michelle and Azteca.

An asylum applicant is eligible for asylum if the applicant is a refugee within the

meaning of Section 1101(a)(42)(A) of the Immigration and Nationality Act (INA). 8 U.S.C.A. §

1158. A refugee is defined as a person who is unwilling or unable to return to their home country

because of “persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.” 8 U.S.C.A. §

1101(a)(42)(A). Persecution is considered, for example, the infliction of harm, imminent death

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threats, and repeated harassment. Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.2004) (en banc)

(internal quotation marks omitted). A well-founded fear of future persecution is an applicant’s

subjective fear of future persecution, and whether a similarly situated applicant would have a

reasonable fear of future persecution. Chavarria v. Gonzalez, 446 F.3d 508, 520 (3d Cir. 2006).

Ms. Abel has experienced past persecution and has a well-founded fear of future

persecution in Sainte Michelle and Azteca. The physical assaults, imminent death threats, and the

local government’s unwillingness to protect Ms. Abel after she reported the incidents constitutes

past persecution. Furthermore, Ms. Abel has a genuine fear of future persecution in both Sainte

Michelle and Azteca, and a reasonable person would share Ms. Abel’s objective fears of future

persecution. Therefore, Ms. Abel has reached the burden of proof in establishing refugee status

and should be granted asylum. The standard of review for asylum cases is de novo. Chavarria v.

Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006).

A. The Physical Assaults Ms. Abel Experienced, Coupled with Imminent Death

Threats, Constitutes Past Persecution

The INA does not give a working definition of “persecution.” However, circuit courts

have defined it as “the infliction of suffering or harm . . . in a way regarded as offensive.” Li v.

Ashcroft, 356 F.3d 1153, 1158 (9th Cir.2004) (en banc) (internal quotation marks omitted); see

also Mendoza-Pablo v. Holder, 667 F.3d 1308, 1313 (9th Cir. 2012). Moreover, courts have

explained that persecution is an “extreme concept that involves the infliction or threat of death,

torture, or injury to one’s personal freedom on account of a protected characteristic.” La v.

Holder, 701 F.3d 566, 570–71 (8th Cir. 2012) (internal citations omitted).

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As such, persecution can come in many forms, but not every unpleasant incident is

considered persecution. Indeed, “[t]he totality of the circumstances must add up to more than

mere discomfiture, unpleasantness, harassment or unfair treatment.” Moreno v. Holder, 749 F.3d

40, 44 (1st Cir. 2014); See also Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005). For

example, in Li v. Attorney Gen. Of U.S., the Third Circuit held that a petitioner did not suffer

past persecution after a series of threats of physical violence. 400 F.3d 157, 164 (3d Cir. 2005).

There, the Court explained that the threats of “physical mistreatment, detention, and sterilization,

were not sufficiently imminent or concrete for the threats themselves to be considered past

persecution” because the petitioner, nor his family members were harmed as a result of the

threats. Id. At 164- 65. Therefore, “unfulfilled threats must be of a highly imminent and

menacing nature in order to rise to the level of persecution.” Id. (citing Boykov v. INS, 109 F.3d

413, 416-17 (7th Cir. 1997)).

However, unfulfilled threats can be enough in reaching the level of past persecution if

they are imminent in nature when considered with surrounding circumstances. For example, in

Chavarria v. Gonzales, the Third Circuit held that threats, coupled with concrete evidence of

harassment and discrimination, rose to the level of past persecution. See generally Chavarria v.

Gonzalez, 446 F.3d 508, 518- 20 (3d Cir. 2006). There, the petitioner experienced death threats

after being robbed and followed by his attackers on account of his political beliefs. Id. at 520.

There, the Court reasoned that, unlike in Li v. Attorney Gen. Of U.S., the BIA did not

sufficiently account for the totality of the circumstances surrounding the threats. Id. At 518-20;

See also Li v. Attorney Gen. of U.S., 400 F.3d 157, 164 (3d Cir. 2005). Consequently, the BIA

was incorrect in holding that death threats, coupled with the robbery did not count as past

persecution. Chavarria, 446 F.3d, at 518-20. The BIA incorrectly analyzed the robbery as if it

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were an isolated incident. Id. However, the Court explained that considering the circumstances

surrounding threats, it was clear that the robberies and repeated harassment were related to the

petitioner’s political views. Id. Therefore, the Court held that the petitioner did experience past

persecution because the threats were imminent, concrete, and ultimately led to physical harm. Id.

Moreover, an applicant alleging past persecution can establish refugee status by showing

that the persecution was committed by the government, or by forces the government was

unwilling or unable to control. Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010).

When an applicant claims that the persecution resulted from an acquiescent government, courts

look to “evidence of how the police responded to the [applicant’s] requests for protection.”

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1063 (9th Cir. 2017). For example, in Singh v.

INS, the Ninth Circuit held that police inactivity after the applicant reported a series of death

threats and assaults established the applicant suffered persecution. 94 F.3d. 1353, 1357-60 (9th

Cir 1996). There, the court reasoned that the home country could not, or would not, control the

persecutors because the applicant reported each assault, and the police failed to respond to the

reports or provide the applicant with additional protection. Id. at 1357-38. Therefore, when the

police, acting on behalf of the government, fail to address an applicant’s reports of

discrimination and harassment, the applicant has experienced persecution. Id.

Furthermore, a country’s history with discrimination, should also be considered when

determining if an applicant has suffered past persecution. For example, in Olmos-Colaj v.

Sessions, the First Circuit, in a concurring opinion, faulted the IJ for failing to consider how the

country treated similarly situated individuals throughout its history. 2018 WL 1542030 (1st Cir.

2018). The court explained that the home country’s “long and disturbing history” of

discrimination against the petitioner’s protected class indicates persecution. Id. Thus, a country’s

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political history is also relevant when determining whether a petitioner has suffered from past

persecution. Id.

Here, the reoccurring death threats, coupled with the physical harm Ms. Abel experienced

rises to the level of past persecution. (R. at 2-3). Like the petitioner in Chavarria, where death

threats and physical violence were considered past persecution, the repeated threats on Ms.

Abel’s temporary home, physical harm she suffered, and increasing political tension in the

region constitute persecution. 446 F.3d at 518-20; (R. at 2-3). Moreover, unlike Li, where the

BIA considered threats in isolation, here the threats, robbery, and physical harm Ms. Abel

suffered should be considered together. 400 F.3d at 164. In Sainte Michelle, Ms. Abel was

accosted, physically assaulted, and she lived in constant fear that she would face further

persecution for her political affiliations. (R. at 2). Furthermore, in Azteca, Ms. Abel was

physically assaulted, robbed, harassed, and threatened for her membership in Stars and Comets.

(R. at 3). Indeed, when the record is read in its entirety, the threats Ms. Abel faced were

imminent, concrete, and ultimately led to her being robbed and assaulted. (R. at 1-3). Therefore,

Ms. Abel’s overall experience is a form past persecution.

Moreover, Ms. Abel reported the harassment, threats, and assaults in both Azteca and

Sainte Michelle to the local authorities. (R. at 1-3). When Ms. Abel made these reports, the local

law enforcement failed to mitigate the ongoing persecution. (R. At 1-3). Like in Singh, where the

applicant reported the repeated threats and harassment to the acquiescent law-enforcement, the

police in both Azteca and Sainte Michelle did not respond to Ms. Abel’s reports about the

repeated harassment, death threats, and physical assaults. 94 F.3d. at 1357-60. Moreover, the

police in both counties were not passive in their discrimination, but instead actively victimized

members of the Stars and Comets. (R. at 1-3). For example, at the political protest in Sainte

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Michelle, Stars and Comets members were brutally attacked while peacefully protesting. (R. at

2). The Stars and Comets members were subsequently arrested at a staggeringly higher rate than

their attackers. (R. at 2). Also, in Azteca, Ms. Abel was targeted for her membership in Stars and

Comets and as a result she was fined for minor traffic violations. It is no coincidence that police

were consistently stopping Ms. Abel. (R. at 2). The police were actively targeting her for her

affiliation with Stars and Comets. (R. at 2). Thus, the negligence of the police in both countries

indicates that Ms. Abel suffered persecution, and the persecution stemmed from governments

who did not share Ms. Abel’s political opinions.

Additionally, when viewing the physical attacks in Sainte Michelle and Azteca

considering the rising political tension in the region, the physical attacks indicate Ms. Abel faced

persecution. (R. at 2). Like Olmos-Colaj, where the court argued that a country’s historical

mistreatment of individuals should be considered when determining persecution, the treatment of

Ms. Able should not be viewed as isolated incidents. 2018 WL 1542030 (1st Cir. 2018); (R. at

2). Azteca has a history of supporting Sainte Michelle politically. (R. at 1). Therefore, the

treatment that Ms. Abel experienced in Azteca is a direct reflection of the treatment she suffered

in Sainte Michelle, which is unequivocally persecution. (R. at 1-3).

From a policy perspective, the 14th Circuit’s assertion that a petitioner is required suffer

extreme physical harm is a slippery slope, and it demands that an applicant have a near death

experience to be considered a refugee. (R. at 11). However, this is problematic because there is

no way to predict whether violent threats will result in a tragic ending, or if they are meant to

intimidate individuals who have differing views. When considering the increase in violence in

Sainte Michelle and Azteca, these threats should not be considered meaningless. (R. at 2-3).

Indeed, death threats written on a person’s place of abode, along with robberies and physical

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harm because of that person’s personal opinions, would be considered persecution in the United

States. (R. at 3). From a human rights perspective it is proper to provide this standard of care to

all people. See Generally Scott Rempell, Defining Persecution, 2013 Utah L. Rev. 283, 287

(2013).

Moreover, the lack of a statutory definition indicates that the legislature is encouraging

courts to use their discretion in determining what is considered past persecution. The legislature

has had ample opportunity to amend the statutory definition of “persecution” and they have

refrained from defining such a fact specific inquiry. See generally Texas Dep't of Hous. & Cmty.

Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2512, (2015) (explaining that

when given ample opportunities to amend a statute, absence of legislative action is a form of

ratification). This discretion gives courts the authority and privilege to give applicants access to

better opportunities. Now, more than ever, due to the national focus on immigration and asylum,

courts have an opportunity to advocate for those who are being stripped of basic human rights.

Here, courts would advocate for Ms. Abel’s right to freedom of speech and having a political

opinion. If Ms. Abel’s experience is not considered persecution, then U.S. Courts have opted out

of advocating for world-wide human rights and are instead promoting politically homogenous

countries. See Generally Scott Rempell, Defining Persecution, 2013 Utah L. Rev. 283, 287

(2013). The United States purports itself as a country that values individuals’ opinions and

values, therefore, it is necessary for courts to extend these rights on a global scale.

B. Ms. Abel also has a Well-Founded Fear of Future Persecution Because

Threats Indicate a Well-Founded Fear of Future Persecution.

The 14th Circuit ignored the latter portion of Section 1101(a)(42)(A) of the INA, which

states that refugee can establish asylum through past persecution, or by having a well-founded

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fear of future persecution. 8 U.S.C.A. § 1158. Therefore, if an applicant failed to prove she

suffered past persecution, she can “make an independent showing that [s]he has a well-founded

fear of future persecution.” Gilca v. Holder, 680 F.3d 109, 116 (1st Cir. 2012). To show a well-

founded fear of future persecution, the applicant must demonstrate a subjective, genuine fear of

future persecution, and that a reasonable person in her shoes would share these fears. INS v.

Cardoza-Fonseca, 480 U.S. 421, 430-31, (1987). Most circuit courts acknowledge that a

subjective fear of future persecution is easily satisfied, therefore, the analysis ultimately depends

on whether Ms. Able’s fear is objectively reasonable. See Generally Cardoza-Fonseca v. U.S.

I.N.S., 767 F.2d 1448, 1453 (9th Cir. 1985), aff'd sub nom. I.N.S. v. Cardoza-Fonseca, 480 U.S.

421, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987) (“[i]t is only after objective evidence sufficient to

suggest a risk of persecution has been introduced that the alien’s subjective fears and desires to

avoid the risk-laden situation in his or her native land become relevant).Chavarria v. Gonzalez,

446 F.3d 508, 520 (3d Cir. 2006) (explaining that the applicant easily met the subjective

standard); Kiem Hwa Tjoa v. Holder, 496 F. App'x 736, 737 (9th Cir. 2012) (focusing the

analysis on the applicant’s objective fear of future persecution).

The objective element of a well-founded fear claim requires a showing of concrete

evidence that would lead a reasonable person in similar circumstances to fear future persecution.

Li v. Gonzales, 405 F.3d 171, 176 (4th Cir. 2005). Courts have held that “while threats may not

reach the level of past persecution, they are often quite indicative of a danger of future

persecution.” Chavarria 446 F.3d at 520. Moreover, “even a ten percent chance that the applicant

will be persecuted in the future is enough to establish a well-founded fear.” Knezevic v.

Ashcroft, 367 F.3d 1206, 1212 (9th Cir. 2009). Thus, “credible evidence of political threats will

23

still often trigger asylum eligibility by raising a well-founded fear of persecution in the future.”

Mora-Moreno v. Keisler, 252 F. App'x 826, 828 (9th Cir. 2007) (internal citations omitted).

In short, when threats do not rise to the level of past persecution, the applicant can still

obtain refugee status because threats are an indication of future persecution. For example, in

Mora-Moreno v. Keisler, the Ninth Circuit held that an applicant whose family was threatened

had an objectively reasonable fear of future persecution. Id. There, the applicant and his family

received mulitple anonymous threats on account of his political affiliations. Id. at 827. The Court

reasoned that when considering the threats in isolation, the applicant did not have an objectively

reasonable fear of future persecution. Id. However, the Court explained its duty to read the

record as a whole, which indicated a “reasonable possibility” of future persecution. Id.

Therefore, if the record in its entirety illustrates that there is a chance of future persecution, the

applicant is considered a refugee. Id.

Ms. Abel has an objective fear of future persecution. (R. at 3). Like the applicant in

Mora-Moreno, where threats viewed in aggregate demonstrated an objectively reasonable fear of

future persecution, the violent threats Ms. Abel faced, alongside the growing political turmoil in

the region establish an objective fear of future persecution. Mora-Moreno v. Keisler, 252 F.

App'x at 828; (R. at 1-3). As the 14th Circuit Court’s dissent suggests, these threats surely meets

the ten percent threshold of future persecution. (R. at 13). This is especially true when the record

is read in its entirety. Indeed, a reasonable person would fear future persecution if they were

regularly threated, physically harmed, harassed, and accosted without law enforcement

intervening. (R. at 1-3). The 14th Circuit suggests that because some of the harassments and

threats came from children, Ms. Abel has not suffered. (R. at 11). However, it is important to

recognize that children making such discriminatory statements indicates a pattern of