Asylum : Representing victims of DV & Procedural Updates

Asylum : Representing victims of DV & Procedural Updates

Christina Brown & Rebecca Kitson

What we will cover What we will cover

Latest changes in the law Representing victims of DVIssues with procedure

Lodging versus filing One year filing deadline Using expert witnesses

A quick asylum refresher A quick asylum refresher

Definition of a Refugee, INA 101(a)(42)(A) (Emphasis added) Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided,

and who is unable or unwilling to return to,

and is unable or unwilling to avail himself or herself of the protection of, that 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

A quick asylum refresher A quick asylum refresher

Accordingly, individuals may qualify for asylum if they can prove:

a well-founded fearof persecutionperpetuated by the government or an entity the government cannot or will not controlon account ofone of the five protected grounds

DV and asylum: BackgroundDV and asylum: Background

Background on the meaning of particular “social group” protected ground (PSG) Matter of Acosta, 19 I&N Dec 211 (BIA 1985):

Established the rule that a social group should encompass shared characteristics that members cannot change or should not be required to change, i.e., “immutable characteristics”

DV and asylum: BackgroundDV and asylum: Background

Matter of Kasinga, 21 I&N Dec 357 (BIA 1996) Involved a Togolese woman fleeing female genital cuttingRecognized that social group could be defined in reference to gender• “young women of the Tchamba-Kunsuntu Tribe who have

not had FGM, as practiced by the tribe, and who oppose the practice”

Found nexus between persecution and social group by taking societal context into consideration

DV and asylum: BackgroundDV and asylum: Background

In 2000, regulations were proposed by AG Reno that recognize gender as an immutable characteristic and that marital status can be under some circumstances. The Obama Administration indicated its intention to issue the proposed regulations in 2010, but it never happened.

The Regulatory Plan, 74 Fed. Reg. 64137, 64220-21 (Dec 7, 2009)

To date, no regulations have been promulgated

DV and asylum: BackgroundDV and asylum: Background

Matter of R-A- IJ initially granted asylum based on social group defined as “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination.” 10 year procedural nightmare resulted in stipulated grant in 2009New post-Acosta social group requirements of “social visibility” and “particularity” arose out of battle

In re R-A-, 22 I&N Dec 906 (BIA 1999); 23 I&N Dec 694 (AG 2005) Matter of R-A-, 24 I&N Dec 629 (AG 2008)

Case law update: 2014 – present Case law update: 2014 – present

Matter of M-E-V-G, 26 I&N Dec 227 (BIA 2014) 1) Clarifies “social visibility” element required to establish PSG does not mean ocular visibility but “social distinction” 2) An asylum or withholding applicant seeking relief based on PSG must establish that the group is 1) composed of members who share a common immutable characteristic; 2) defined with particularity; and 3) socially distinct within the society 3) Whether a social group is recognized is determined by the society’s perception, not by the persecutor. • See also Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014)

Case law update: 2014 – present Case law update: 2014 – present

Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)Depending on facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.

The view from the front lines: Case examples from Artesia

The view from the front lines: Case examples from Artesia

Case 1: El SalvadorCase 2: GuatemalaCase 3: Honduras

El SalvadorEl Salvador

Asylum claim Husband rapes her daily and beats herShe doesn’t report to police because she is told by police officer not toShe escapes to mother’s home, where husband stalks her with machete and threatens her

Loss – “El Salvadoran women in a domestic relationship who are unable to leave”

GuatemalaGuatemala

Asylum claim Husband rapes her daily and beats herBeats her children severely, breaking bonesTries to hack down a door with a machete to get to her

Win: “Guatemalan women in a common law marriage who are unable to leave the relationship or are viewed as property by virtue of the relationship”

HondurasHonduras

Asylum claim Woman kidnapped, raped, forced to marryHeld captive for years in family homeRaped repeatedly resulting in two childrenHusband tracked her down at parents and threatened to kill her

Win: “Married women in Honduras who cannot leave the relationship”

Life after Detention Life after Detention

Practice tips : DV claims Practice tips : DV claims

Issues in Artesia claims“Unable to leave” Marital relationship Domestic abuse from family Women’s shelters and police protection

Practice tips: DV claims Practice tips: DV claims

Use of humanitarian asylum Arguing extension of one year for PTSD etc Alternative forms of relief (withholding, CAT, admin closure / pros discretion, etc)

Recent procedural challenges: One year deadline compliance

Recent procedural challenges: One year deadline compliance Lodging versus filing

Immigration Court Practice Manual

One year filing deadlineWhat to do when your NTA hasn’t been lodged? What to do when your first MCH is beyond the one year filing deadline?

Using expert witnesses Using expert witnesses

“Expert” Witness: Has specialized knowledge by virtue of skill, experience, training, education, that will help trier of fact understand an issue/fact. Matter of D-R-, 25 I&N Dec. 445 (BIA 2011); Kholyavskiy v. Mukasey, 540 F.3d 555 (2008); see also Fed. Rules of Evidence 702.

Can provide conclusions and inferences drawn from facts that lay persons are not qualified to make. United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994).

Using expert witnessesUsing expert witnesses

Qualifying the Expert CV/Resume - preferably tailored to your issue Written Declaration

Explain relevant background, scholarship, experience Background materials reviewed for testimony Direct contact with respondent? Describe. Documents (record excerpts) reviewed

Using expert witnessesUsing expert witnesses

Preparing the Expert Anticipate challenges, such as bias, no expertise on the specific matter at issue, and lack of recent travel Avoid OES “Overeager Expert Syndrome”

Using expert witnesses: Telephonic testimony Using expert witnesses: Telephonic testimony

Motion Requirements: ICPM § 4.15(o)(iii) State why the witness cannot personally appear Telephone number & location of witness Caveats

Cellphones disfavored Telephonic witness should be available during the entire hearing time slotICPM: Bring a prepaid international calling card for out of U.S. witness testimony.

Problems with telephonic testimonyProblems with telephonic testimony

Potential problems for telephonic testimony No way to verify ID of witness absent testifying from an US government office The appearance of a witness at an U.S. government office may be problematic in some countries, hours of business, not priority, and cost. 22 USC § 22.1. Alternatives: Neutral, third party-NGO office, other country consulate

Questions?? Questions??

Email addresses of presenters:

Rebecca Kitson, rk@rkitsonlaw.com Christina Brown, CBrown@immcouncil.org