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Articulating Challenging PSGs in Asylum Cases Articulating Challenging PSGs in Asylum Cases

Articulating Challenging PSGs in Asylum Cases - PowerPoint Presentation

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Articulating Challenging PSGs in Asylum Cases - PPT Presentation

Developments in Immigration Law Crimmigration and Asylum April 1 2016 Introduction owing to a wellfounded fear of being persecuted for reasons of race religion nationality membership of a particular social group ID: 701057

matter psg group relationship psg matter relationship group social persecution women bia gang members political membership petitioner cir leave

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Slide1

Articulating Challenging PSGs in Asylum Cases

Developments in Immigration Law:

Crimmigration

and Asylum

April 1, 2016Slide2

Introduction

“owing

to a well-founded fear of being persecuted for reasons of race, religion, nationality,

membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.”

1951 Refugee ConventionSlide3

Membership in a Particular Social Group (PSG)

To demonstrate persecution based on membership in a PSG, an applicant should:

Identify the group;

Prove membership or perceived membership in that group; and

Establish that the past or feared persecution is based on membership or perceived membership in that group.Slide4

Defining a PSG

A PSG must exist independently of the persecution that has been suffered or that is feared.

It CANNOT be defined by the harm itself.

Acceptable PSG:

“Married Women in Guatemala who are Unable to Leave Their Relationship.”

Unacceptable PSG:

“Married Women in Guatemala who are victims of Domestic Violence”Slide5

Persecution and Nexus

Persecution

can be established by showing:

Past persecution; or

A Well-Founded Fear of future persecution.

Nexus

The

persecution must be “on account of” the applicant’s race, religion, nationality, membership in a PSG, or political opinion.Slide6

Test: Is a Group a PSG?

A PSG must:

Consist of members who share a common,

immutable characteristic;

Be defined with particularity

; and

Be

socially distinct

within the society in question.

Some overlap between particularity and social distinction.

Matter of A-R-C-G-

(citing Matter

of M-E-V-G-

; Matter

of W-G-R-

). Slide7

Immutability

Immutable Characteristic

:

Something that cannot be changed; or Something that group members should not be required to change in order to avoid persecution.

Example: Gender

Matter of A-R-C-G-

;

Matter of W-G-R-Slide8

Particularity and Social Distinction

Particularity

Discrete class of persons with definable boundaries.

Cannot be too broad, too diffuse, too amorphous, or too subjective. Terms used to define the group – commonly accepted definitions in the society in question?

Social Distinction

Is the group perceived and recognized as a distinct entity by society?

Does NOT mean literal or ocular visibility

.

Is based on society’s perception, NOT the persecutor’s perception.

Matter of A-R-C-G-

; Matter

of M-E-V-G-

;

Matter of W-G-R-Slide9

Domestic Abuse

Asylum

Appeal, Eighth Circuit Court of Appeals Slide10

Facts

Young woman began relationship with an older man while she was a minor.

Became pregnant with his child.

After being informed about the pregnancy, man began to rape and beat petitioner (at the time the sexual abuse began, she was a minor)

Emotional, physical and sexual abuse continued after birth of sonAfter two attempts, petitioner fled the relationship

Lived in country for five years, moving from place to place out of fear abuser would find her. Slide11
Slide12
Slide13

“Suffers the same flaw as the first PSG”Slide14

IJ and BIA found that Petitioner was

not a member

of her proposed social group because she “left” her relationship

OIL made the same argument in its answering brief

Our response

: The IJ and BIA failed to analyze the record evidence that

A-R-C-G-

says is most important to determining whether Petitioner was “able to leave” her domestic relationship.

Here is where we emphasize the contextualized approached mandated by

A-R-C-G-

and DHS.

Record evidence the agency failed to consider:

Abuser’s beliefs

Cultural, religious, and legal norms

Expert testimony

Petitioner’s testimony

Physical separation = able to leave

In the context of past persecution, the relevant question becomes whether “economic, social, physical, or other constraints made it impossible for the applicant to leave the relationship” at the time of the past persecution.

See

Department of Homeland Security Supplemental Brief,

Matter of L-R-Slide15

IJ and BIA found that Petitioner was

not a member

of her proposed social group because she “left” her relationship

OIL made the same argument in its answering brief

Our response

: The IJ and BIA failed to analyze the record evidence that

A-R-C-G-

says is most important to determining whether Petitioner was “able to leave” her domestic relationship.

Here is where we emphasize the contextualized approached mandated by

A-R-C-G-

and DHS.

Record evidence the agency failed to consider:

Abuser’s beliefs

Cultural, religious, and legal norms

Expert testimony

Petitioner’s testimony

The agency committed reversible legal error

: Petitioner’s physical separation from her abuser is not determinative of her “ability to leave” the relationship. Slide16

IJ and BIA found that Petitioner was

not a member

of her proposed social group because she “left” her relationship

OIL made the same argument in its answering brief

Our response

: The IJ and BIA failed to analyze the record evidence that

A-R-C-G-

says is most important to determining whether Petitioner was “able to leave” her domestic relationship.

Here is where we emphasize the contextualized approached mandated by

A-R-C-G-

and DHS.Slide17

Marriage is NOT required for a cognizable domestic violence

based PSG

The A-R-C-G- PSG articulation: “

married

women in Guatemala who are unable to leave their relationship.”

”[O]ur decision in Matter of A-R-C-G-, does not necessarily require that an applicant seeking asylum or withholding of removal based on domestic violence have been married to his or her abuser. Rather, we look to the characteristics of the relationship to determine its nature.”

-Matter of D-M-R-

“[T]he absence of a legal marriage is not ipso facto a distinguishing factor that precludes otherwise analogous claims under the particular social group rationale set forth in Matter of A-R-C-G-.”

-Matter of E-M-Slide18

Northern Triangle Gang Girlfriend

Defensive Asylum, Immigration CourtSlide19

Facts

Client was teenager when first targeted in El Salvador

Gang members approached her daily

One member demanded she be his girlfriendThreatened and harmed family membersSlide20

PSGs and Political Opinion

Young Salvadoran women who are viewed as property by gang

members

Young Salvadoran women who are unable to leave a relationship with a gang memberYoung Salvadoran women Gang members and men in general do not have a right to dominate and possess women Slide21

Women as property PSG

Immutability

Gender/ age

Viewed as property by gangs—machismo impactsParticularityWomen viewed as property v. those who are not

Social DistinctionLaws in E.S.—reference subordination of womenSlide22

Unable to leave relationship PSG

Immutability

Gender / age

“unable to leave a relationship”—social & physical constraints; male dominance and powerParticularityWomen forced into these relationships are identifiableSocial Distinction

Commonly assumed reason in murder casesAgain, the laws—inequalities of power

** Ley Especial Integral Para

Una

Vida

Libre

de

Violencia

para

Las

Mujeres

[Comprehensive Special Law for a Life Free from Violence for Women] Slide23

Young Salvadoran women

PSG

Immutability

gender and ageParticularitydefinable group (joven)

Social DistinctionHeightened exposure to violence

And again, the laws

Political Opinion: Gang members and men in general do not have a right to dominate and possess women Slide24

Northern Triangle Police Officer

Affirmative Asylum, USCISSlide25

Delimiting PSGs

Based on Work

Witness PSG

Current Investigator PSG for Past PersecutionFormer Investigator PSG for Well-Founded Fear Slide26

Witness PSG

Common Immutable Characteristic: Past testimony

Particularity/Social Distinction: Utilizing country-of-origin’s witness protection law(s)

Helpful Caselaw: Garcia v. Att’y Gen., 665 F.3d 496 (3d Cir. 2011): witnesses “assisting law enforcement against violent gangs that threaten communities in Guatemala.” Gashi

v. Holder, 702 F.3d 130 (2d Cir. 2012): “persons who witnessed war crimes by the KLA and Haradinaj

and cooperated with authorities investigating those crimes.”

Henriquez-Rivas v. Holder

, 707 F.3d 1091 (9

th

Cir. 2013): Salvadorans “who had testified against M-18 gang members in open court” Slide27

Current Investigator PSG

Common Immutable Characteristic: Past investigatory work

Distinguishing from

Fuentes: “dangers faced by policemen as a result of that status alone” Police officers attacked for being “highly visible embodiments of the power of the state.” Investigators persecuted for specific investigatory, testimonial or prosecutorial work Slide28

Former Investigator PSG

Differentiating

PSGs

for past persecution and well-founded fear Common Immutable Characteristic: Status as former police officerPSGs of Former Police Officers or Soldiers Recognized as Cognizable By: Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988)Matter of M-E-V-G-, 26 I. & N. Dec. 227, 240 (BIA 2014)

Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014)Gathungu v. Holder

, 725 F.3d 900, 908 (8th Cir. 2013)

Madrigal v. Holder

, 716 F.3d 499, 505 (9th Cir. 2013)

Koudriachova

v. Gonzales

, 490 F.3d 255, 261 (2d Cir. 2007)

Altidor

v.

Att’y

Gen.

, 247 Fed.

App’x

342, 346 (3d Cir. 2007)Slide29

Imputed Political Opinion

Why not argue for an actual political opinion?

Rule of Law & Anti-Gang Opinions – Challenges

What is a political statement? Emerging Argument: Gangs as de facto governments.

Political and Historical ContextAnalogizing to DeBrenner

NexusSlide30

“Indeed

, it is because the United States has fostered Haiti’s unlivable conditions that it refuses to recognize Haitians’ claims. Acknowledging the status of thousands of Haitians as refugees would be tantamount to admitting that the United States supported cruel dictators who murdered and terrorized their own people, an admission that would tarnish the U.S. image as the world’s primary defender of freedom and

democracy.”

Testifying to Rightlessness: Haitian Refugees Speaking from Guantánamo by

A. Naomi Paik Slide31

Supporting PSGs with EvidenceSlide32

Questions