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TRENDS IN SOCIAL GROUP
ASYLUM Presented by: Christina Wilkes, Esq.,
Grossman Law, LLC September 24, 2015
• Past persecution or a well-founded fear of future persecution;
– By the gov’t or by individual(s) the gov’t is unable/unwilling to control.
– Country-wide.
• On account of (Nexus); – Mixed Motives permissible
• Five enumerated grounds: Race, Religion, Nationality, Political Opinion, or Membership in a Particular Social Group (PSG).
8 U.S.C. Sec. 1101(a)(42)(A).
ELEMENTS OF AN
ASYLUM CLAIM
• Common, immutable characteristic.
– Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).
• Social distinction
– The group must be perceived as a group by applicant’s society
– The group’s shared characteristics should be recognizable by others in the community, although literal/ocular visibility is not required.
– Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec, 208 (BIA 2014)
• Particularity. – Definable boundaries – Must not be too overbroad, diffuse,
amorphous, or subjective – Not be comprised of a potentially
large & diffuse segment of society. – In re A-M-E & J-G-U, 24 I&N Dec. 69
(BIA 2007); Matter of S-E-G-, 24 I&N Dec. 579 (2008).
ELEMENTS OF A PSG
• PSGs – Resisters to Recruitment – Former Gang Members – Witnesses & Informants – Family
• Other Grounds – Political Opinion – Religion
GANG BASED CLAIMS
• Routinely denied for: – Lack of social distinction – Lack of particularity – Lack of nexus: Gang’s objectives are unrelated
to applicant’s characteristics • See:
– Matter of S-E-G, 24 I&N Dec. 579 (BIA 2008). – Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014). – Zelaya v. Holder, 668 F.3d 159 (4th 2012)
• Tips: – What type of recruitment? – Why did the applicant resist? – Applicant’s resistance should be evidence of
the claim, not the claim itself.
RESISTERS TO
RECRUITMENT
• Former membership in a Central American gang is an immutable shared past experience that can unite a PSG.
– Impossible to change the fact of having been a member, except by rejoining.
• Distinct from current membership, which isn’t immutable, or fundamental to identity or conscience.
• See – Benitez Ramos v. Holder, 589 F.3d 426 (7th
2009) – Urbina-Mejia v. Holder, 597 F.3d 360 (6th
Cir. 2010) – Martinez v. Holder, 740 F.3d 902 (4th Cir.
2014)
FORMER GANG
MEMBERS
• BUT W-G-R: – Categorical rule against all PSGs
composed of former gang members due to policy concerns.
– Currently on appeal to the 9th Circuit.
FORMER GANG
MEMBERS, CONT. . .
• Matter of C-A-, 23 I&N Dec. 951 (BIA 2006): PSG: Former, non-criminal drug informants
– Lacks particularity: Diverse group – Lacks social visibility: Confidential
informants are outside public view – Lacks immutable characteristic: group
members chose to become informants & knew of risks
– See Zelaya v. Holder, 668 F.3d 159 (4th 2012) • BUT. . . Matter of M-E-V-G- held that social
distinction requires that a group be perceived within a society. Ocular visibility not req’d.
• Argue: – Cohesiveness & homogeneity not req’d – Focus on shared past experience – Document social distinction & particularity
WITNESSES &
INFORMANTS
FAMILY
BIA
• Family bonds are innate and unchangeable.
– In re C-A-, I&N Dec. 951 (2006)
• Family relationships are “generally easily recognizable and understood by others to constitute social groups.”
– Matter of M-E-V-G- • Family is discrete and has
definable boundaries. – Matter of W-G-R-
4th Circuit
• Lopez-Soto v. Ashcroft, 383 F.3d 228 (2004) (holding that family constitutes a PSG);
• Crespin-Valladares v. Holder, 632 F.3d 117 (2011) (affirming the PSG of “family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses.”);
• Cordova v. Holder, 759 F.3d 332 (2014)(Remand to BIA to determine whether Respondent was persecuted b/c of his familial ties to his uncle and cousin.)
• The family relationship itself is the nexus. NOT the targeting of the family member.
– Crespin-Valladares : Nephew of witness/informant
– Cordova v. Holder: gang threatened & attacked applicant b/c it believed his uncle & cousin belonged to rival gang
– Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir 2015): Gang threatened mother if she refused to allow her son to join the gang.
FAMILY =
NEXUS
GENDER: DOMESTIC VIOLENCE
• Matter of L-R- – 2009: DHS argues in
favor of two alternate PSGs:
– (1) “Mexican women in domestic relationships who are unable to leave,” or
– (2) “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.”
• Matter of R-A- – 2004: DHS argues in
favor of the PSG of “married women in Guatemala who are unable to leave the relationship.”
– Looking at Matter of Acosta, DHS argues that gender is an immutable trait, and that marital status may be an immutable trait, depending on the circs.
• Precedential decision on domestic violence-based asylum . 26 I&N Dec. 388. (BIA 2014)
• Holding: “Married women in Guatemala who are unable to leave their relationship” are a particular social group.
• DHS conceded the validity of this
social group in its BIA brief. • Reiterates that gender is an
immutable characteristic. Provides that marital status may be an immutable characteristic “where the individual is unable to leave the relationship.”
MATTER OF A-R-C-G
MATTER OF A-R-C-G-, CONT…
PARTICULARITY
• “Married,” “women,” and “unable to leave the relationship” all have commonly accepted definitions in Guatemala.
SOCIAL DISTINCTION
• Case-by-case analysis turning on facts & evidence in each case. Here:
– Culture of “machismo and family violence” in Guatemala
– Sexual assault, spousal rape, etc. remain problems in Guatemala
– Guatemala enacted laws to protect DV victims – these serve as evidence that DV is a problem in the country
POST A-R-C-G- DECISIONS
IJ GRANTS
• Teenagers “taken” as girlfriends/wives, subjected to physical, verbal, sexual violence
• Women raped by gang members & forced to pay conjugal visits to prison
IJ DENIALS
• A-R-C-G does not apply to unmarried partners.
• Lack of nexus: IJ held DV was not on account of Respondent’s gender, rather partner’s crim. nature & drug abuse
• Describe Persecution: freq & type of violence, level of harm/injuries
• Define the Relationship: Clearly stated in terms of immutable characteristics
• Demonstrate social distinction: Societal acceptance of DV? Anti-DV laws? Police enforcement of DV laws?
• Establish persecutor’s motive: What did he say? Do?
• Show Impossibility of Internal Relocation
PROVING A DV
ASYLUM CASE
• Argue PSGs that parallel A-R-C-G: – Honduran women in a relationship with
a gang that they are unable to leave – Salvadoran women who are viewed as
“gang property” because they were successfully victimized by gang members in the past
– Guatemalan girls targeted to be gang girlfriends.
• Present evidence of special/distinct
treatment of women – Highlight: Laws that exist to protect
women, failure of authorities to protect women, 2nd class status of women in society
– Highlight: Gendered nature of gang violence against women - sexual violence
– Expert testimony is crucial
INTERSECTION: GENDER &
GANGS
CHILD ABUSE CLAIMS: NORTHERN TRIANGLE
PARTICULARITY
• Within society, and within families, children are treated differently – different rules, policies, expectations
• Laws exist to define “child” • Laws exist to protect
children
SOCIAL DISTINCTION
• Country conditions docs establish increasing violence against children, sexual violence against girls, homicides of boys.
• Country conditions docs show that child abuse & forced labor is widespread.
• Laws exist to protect children
• Protected ground must be at least one central reason for the persecution:
– INA Sec. 208(b)(1)(B)(i) – Can’t be tangential,
superficial, or subordinate to another reason
• But mixed motives still OK • Matter of J-B-N- & S-M-, 24
I&N Dec. 208 (BIA 2007) • Establish by direct or
circumstantial evidence
NEXUS
• Gang violence predicated on: – Desire to increase ranks, wealth,
influence – Generalized violence – Personal animosities
• Denials often overlook:
– Direct & circumstantial evidence – Expressions of pol. op./religion – Fact that protected ground may
be one of several central reasons
NEXUS DENIALS
• Follow 3-Step Process
1. Identify Protected Ground 2. Prove that Applicant
Possesses the Characteristic / Belongs to the PSG
3. Establish Nexus
STRATEGIES FOR
SUCCESS
• Applicant’s Affidavit – Cover all 3 req’d el. for est. PSG – Incl. facts that distinguish from neg. precedent
• Letters – Discuss how soc’y perceives, treats, and describes
the group – Discuss how soc’y views applicant
• Supporting Evidence – Scholarly writings re. perception of grp. – Ev. of country’s laws, policies, etc. protecting the
group – Newspaper articles, etc. discussing group
• Country Conditions Documentation – Targeted to Applicant’s persecution (not reports re.
general gang violence) – Gov’t unable/unwilling
• Experts – Cover social distinction, particularity, nexus, gov’t
unwilling/unable, impossibility of internal relocation
BUILD A STRONG RECORD
• Tell a compelling story • Argue:
– Social Distinction • Perception of who? • How does soc’y view & treat group
differently?
– Particularity • Who is in the group? Who isn’t? • Evaluate the group as a whole. Don’t pick
apart ea. characteristic. • Argue size/homogeneity irrelevant.
• Analogize to accepted PSGs • Distinguish negative case law • Highlight your facts/evidence: These cases are
highly fact specific! • Argue NEXUS.
WRITE A
BRIEF