SCATTERGORIES: Winning Asylum Claims Based on Particular Social

Group

Speakers: Dree Collopy, Benach Ragland LLP

Jason Dzubow, Dzubow & Pilcher, PLLC Patricia Minikon, Minikon Law, LLC

Moderator: Jumoke Oladapo, Ivylaw Law Office, LLC

AILA D.C. 2014 CONFERENCE

Introduction What is a Particular Social Group

(PSG)?

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

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

required

Evolution of PSG Legal Standard Circuit Courts Respond

1st, 2nd, 5th, 10th, 11th: Defer in whole or part Ahmed 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822 (11th Cir. 2012) (unpublished)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 Standard Circuit 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 Standard Circuit 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 Standard Circuit 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 Standard Matter 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 distinction 3. Particularity

Current Trends in PSG Claims

Analysis for a PSG Claim

1. Identify a cognizable group under 3-part test

2. Prove membership in the group 3. Establish nexus between

persecution and membership in group

Analysis for a PSG Claim Identify a cognizable group under 3-

part test Challenges:

1. Increased Evidentiary Burden 2. PSG no longer parallel with other 4

grounds 3. Troubling particularity dicta

Analysis for a PSG Claim Identify a cognizable group under 3-

part test Challenges Cont’d:

4. Homogeneity of groups 5. Size of groups

6. Is meeting both social distinction and particularity possible?

Analysis for a PSG Claim Prove membership in the group

Analysis for a PSG Claim Nexus: establish past persecution

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

membership

Analysis for a PSG Claim Nexus

“One Central Reason” Direct or Circumstantial Evidence

PSG “Hot Topics”

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

hasn’t?

Types of Gang-based claims: Resistance to Recruitment

Witness or informant Family membership

Gender Former Gang membership

Gang-based PSG claims: Other Challenges

Nexus Internal Relocation

Gender-based PSG claims What has worked and what

hasn’t?

Types of Gender-based PSG claims FGM/FGC

Matter of Kasinga Forced Marriage

Repressive social norms/Honor Killings

Sex trafficking and forced prostitution Rape and sexual violence

Femicide

Types of Gender-based PSG claims Domestic Violence

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

Gender-based PSG claims Other Challenges

Nexus Government unable/unwilling to

protect Internal Relocation

Practice Pointers for PSG Claims

Practice Pointers Client should understand basis of

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

humanitarian asylum claim 8 C.F.R. 208.13(b)(1)(iii)(A)

Practice Pointers

Client should understand basis of claim

Ask about FGM, DV at beginning Explain why you are asking about

sensitive issues

Practice Pointers Argue for case-by-case determination

based on: - specific facts

- evidence of record Be creative in formulating PSG

Practice Pointers Argue 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 decision Use a PSG that has been used before

Practice Pointers Use published decisions

Use decisions from your Circuit/other Circuits

Use unpublished decisions from list serves or Lexis/Westlaw

Practice Pointers Present multiple PSGs

1. Acosta Group 2. M-E-V-G- and W-G-R- Group

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

Practice Pointers Establish your record with Evidence

Practice Pointers Establishing your record

1. Testimony and Affidavits 2. Use Experts for context 3. Documentary Evidence

Practice Pointers Testimony and Affidavits

Get to the point! The Goal: win asylum (not tell entire

life story) Evidence supportive of claim: prove

applicant’s statements

Practice Pointers Using Experts

Essential to provide proper context for PSG when claim cannot be

documented with internet research/precedent

Written report or in-person testimony

Practice Pointers Use Experts to Establish - Socio-political context

-Social distinction and particularity -Nexus

-Ability/willingness of state to protect -Relocation options

Practice Pointers Other 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 Pointers Litigate 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!!