SCATTERGORIES: Winning Asylum Claims Based on Particular Social Group

Speakers: Dree Collopy, Benach Ragland LLP

Jason Dzubow, Dzubow & Pilcher, PLLCPatricia Minikon, Minikon Law, LLC

Moderator: Jumoke Oladapo, Ivylaw Law Office, LLC

AILA D.C. 2014 CONFERENCE

IntroductionWhat is a Particular Social Group

(PSG)?

Evolution of PSG Legal StandardMatter of Acosta: common immutable

characteristic

Matter of C-A-; Matter of A-M-E-& J-G-U-: particularity and social visibility (new

prongs of PSG analysis)

Evolution of PSG Legal StandardMatter of S-E-G & Matter of

E-A-G-: Social visibility and particularity now

required

Evolution of PSG Legal StandardCircuit Courts Respond

1st, 2nd, 5th, 10th, 11th: Defer in whole or partAhmed v. Holder, 611 F.3d 90 (1st Cir. 2010)

Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007)Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012)

Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2011)Velasquez-Otero v. U.S. Atty. Gen., 456 Fed. Appx. 822 (11th Cir. 2012) (unpublished)

Evolution of PSG Legal StandardCircuit Courts Respond

3rd, 7th, & 9th: Reject Social Visibility and Particularity in whole or part

Valdiviezo-Galdamez v. Atty. Gen., 663 F.3d 582 (3d Cir. 2011)

Evolution of PSG Legal StandardCircuit Courts Respond

3rd, 7th, & 9th: Reject Social Visibility and Particularity in whole or part

Gatimi v Holder, 578 F.3d 611 (7th Cir. 2009)Benitez-Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009)

Cece v. Holder, 733 F.3d 662 (7th Cir. 2013)

Evolution of PSG Legal StandardCircuit Courts Respond

3rd, 7th, & 9th: Reject Social Visibility and Particularity in whole or part

Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013)

Evolution of PSG Legal StandardMatter of M-E-V-G- &

Matter of W-G-R-Social Visibility now Social Distinction

Reaffirmed 3-part test

Evolution of PSG Legal Standard

3-Part Test for PSG Analysis (2014)1. Common, immutable characteristic

2. Social distinction3. Particularity

Current Trends in PSG Claims

Analysis for a PSG Claim1. Identify a cognizable group under 3-

part test2. Prove membership in the group

3. Establish nexus between persecution and membership in group

Analysis for a PSG ClaimIdentify a cognizable group under 3-part test

Challenges:1. Increased Evidentiary Burden

2. PSG no longer parallel with other 4 grounds3. Troubling particularity dicta

Analysis for a PSG ClaimIdentify a cognizable group under 3-part test

Challenges Cont’d:4. Homogeneity of groups

5. Size of groups6. Is meeting both social distinction and

particularity possible?

Analysis for a PSG ClaimProve membership in the group

Analysis for a PSG ClaimNexus: establish past persecution

or a well-founded fear of persecution on account of that

membership

Analysis for a PSG ClaimNexus

“One Central Reason”Direct or Circumstantial Evidence

PSG “Hot Topics”

Gang-based PSG ClaimsTypes of Gang-based claims – What has worked and what

hasn’t?

Types of Gang-based claims:Resistance to Recruitment

Witness or informantFamily membership

GenderFormer Gang membership

Gang-based PSG claims: Other Challenges

NexusInternal Relocation

Gender-based PSG claimsWhat has worked and what

hasn’t?

Types of Gender-based PSG claimsFGM/FGC

Matter of KasingaForced Marriage

Repressive social norms/Honor KillingsSex trafficking and forced prostitution

Rape and sexual violenceFemicide

Types of Gender-based PSG claimsDomestic Violence

Matter of R-A- & Matter of L-R-Matter of A-R-C-G-

Gender-based PSG claimsOther Challenges

NexusGovernment unable/unwilling to

protectInternal Relocation

Practice Pointers for PSG Claims

Practice PointersClient should understand basis of

claimOther bases: FGM, DV, Prior harm as basis for “other serious harm” claim (8 CFR 208.13(b)(1)(iii)(B) or

humanitarian asylum claim8 C.F.R. 208.13(b)(1)(iii)(A)

Practice PointersClient should understand basis of

claimAsk about FGM, DV at beginningExplain why you are asking about

sensitive issues

Practice PointersArgue for case-by-case

determination based on:- specific facts

- evidence of recordBe creative in formulating PSG

Practice PointersArgue for case-by-case determination

Matter of E-F-H-L-: Alien entitled to present his case even if IJ/AO believes

proposed PSG does not qualify

Practice Pointers

Matter of Fefe: IJ cannot rely exclusively on I-589 to make decisionUse a PSG that has been used before

Practice PointersUse published decisions

Use decisions from your Circuit/other Circuits

Use unpublished decisions from list serves or Lexis/Westlaw

Practice PointersPresent multiple PSGs

1. Acosta Group2. M-E-V-G- and W-G-R- Group

Tip: Inclusion of weak claim with strong one may weaken strong claim

Practice PointersEstablish your record with Evidence

Practice PointersEstablishing your record

1. Testimony and Affidavits2. Use Experts for context3. Documentary Evidence

Practice PointersTestimony and Affidavits

Get to the point!The Goal: win asylum (not tell entire life story)Evidence supportive of claim: prove applicant’s

statements

Practice PointersUsing Experts

Essential to provide proper context for PSG when claim cannot be documented with

internet research/precedentWritten report or in-person testimony

Practice PointersUse Experts to Establish- Socio-political context

-Social distinction and particularity-Nexus

-Ability/willingness of state to protect-Relocation options

Practice PointersOther Documentary Evidence (background information)Passport; marriage certificates; photos; School and work

records & evidence of missed work or school;Birth certificates of children;

awards & certificates

Practice Pointers- Don’t forget other protected grounds

- Don’t forget about CAT – explain pros/cons-Brief it!! Remember IJs and AOs know basics

Practice PointersLitigate like you may have to appeal

-Challenge BIA’s additional requirements to preserve issue-Attempt to meet additional requirements

Practice Pointers On Appeal- Challenge the BIA

-Get help from the experts!-Don’t go it alone!

-Coordinate with other litigators: AILA, AIC, NGOs, law schools

Thanks for Attending!!