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
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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. Slide11Slide12Slide13
“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