scattergories: winning asylum claims based on particular social group speakers: dree collopy, benach...
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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
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 Appx. 822 (11th Cir. 2012) (unpublished)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
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 ClaimNexus: establish past persecution
or a well-founded fear of persecution on account of that
membership
Types of Gang-based claims:Resistance to Recruitment
Witness or informantFamily membership
GenderFormer Gang membership
Types of Gender-based PSG claimsFGM/FGC
Matter of KasingaForced Marriage
Repressive social norms/Honor KillingsSex trafficking and forced prostitution
Rape and sexual violenceFemicide
Gender-based PSG claimsOther Challenges
NexusGovernment unable/unwilling to
protectInternal Relocation
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 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