TRENDS IN SOCIAL GROUP

ASYLUM Presented by: Christina Wilkes, Esq.,

Grossman Law, LLC September 24, 2015

• Past persecution or a well-founded fear of future persecution;

– By the gov’t or by individual(s) the gov’t is unable/unwilling to control.

– Country-wide.

• On account of (Nexus); – Mixed Motives permissible

• Five enumerated grounds: Race, Religion, Nationality, Political Opinion, or Membership in a Particular Social Group (PSG).

8 U.S.C. Sec. 1101(a)(42)(A).

ELEMENTS OF AN

ASYLUM CLAIM

• Common, immutable characteristic.

– Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).

• Social distinction

– The group must be perceived as a group by applicant’s society

– The group’s shared characteristics should be recognizable by others in the community, although literal/ocular visibility is not required.

– Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec, 208 (BIA 2014)

• Particularity. – Definable boundaries – Must not be too overbroad, diffuse,

amorphous, or subjective – Not be comprised of a potentially

large & diffuse segment of society. – In re A-M-E & J-G-U, 24 I&N Dec. 69

(BIA 2007); Matter of S-E-G-, 24 I&N Dec. 579 (2008).

ELEMENTS OF A PSG

• PSGs – Resisters to Recruitment – Former Gang Members – Witnesses & Informants – Family

• Other Grounds – Political Opinion – Religion

GANG BASED CLAIMS

• Routinely denied for: – Lack of social distinction – Lack of particularity – Lack of nexus: Gang’s objectives are unrelated

to applicant’s characteristics • See:

– Matter of S-E-G, 24 I&N Dec. 579 (BIA 2008). – Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014). – Zelaya v. Holder, 668 F.3d 159 (4th 2012)

• Tips: – What type of recruitment? – Why did the applicant resist? – Applicant’s resistance should be evidence of

the claim, not the claim itself.

RESISTERS TO

RECRUITMENT

• Former membership in a Central American gang is an immutable shared past experience that can unite a PSG.

– Impossible to change the fact of having been a member, except by rejoining.

• Distinct from current membership, which isn’t immutable, or fundamental to identity or conscience.

• See – Benitez Ramos v. Holder, 589 F.3d 426 (7th

2009) – Urbina-Mejia v. Holder, 597 F.3d 360 (6th

Cir. 2010) – Martinez v. Holder, 740 F.3d 902 (4th Cir.

2014)

FORMER GANG

MEMBERS

• BUT W-G-R: – Categorical rule against all PSGs

composed of former gang members due to policy concerns.

– Currently on appeal to the 9th Circuit.

FORMER GANG

MEMBERS, CONT. . .

• Matter of C-A-, 23 I&N Dec. 951 (BIA 2006): PSG: Former, non-criminal drug informants

– Lacks particularity: Diverse group – Lacks social visibility: Confidential

informants are outside public view – Lacks immutable characteristic: group

members chose to become informants & knew of risks

– See Zelaya v. Holder, 668 F.3d 159 (4th 2012) • BUT. . . Matter of M-E-V-G- held that social

distinction requires that a group be perceived within a society. Ocular visibility not req’d.

• Argue: – Cohesiveness & homogeneity not req’d – Focus on shared past experience – Document social distinction & particularity

WITNESSES &

INFORMANTS

FAMILY

BIA

• Family bonds are innate and unchangeable.

– In re C-A-, I&N Dec. 951 (2006)

• Family relationships are “generally easily recognizable and understood by others to constitute social groups.”

– Matter of M-E-V-G- • Family is discrete and has

definable boundaries. – Matter of W-G-R-

4th Circuit

• Lopez-Soto v. Ashcroft, 383 F.3d 228 (2004) (holding that family constitutes a PSG);

• Crespin-Valladares v. Holder, 632 F.3d 117 (2011) (affirming the PSG of “family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses.”);

• Cordova v. Holder, 759 F.3d 332 (2014)(Remand to BIA to determine whether Respondent was persecuted b/c of his familial ties to his uncle and cousin.)

• The family relationship itself is the nexus. NOT the targeting of the family member.

– Crespin-Valladares : Nephew of witness/informant

– Cordova v. Holder: gang threatened & attacked applicant b/c it believed his uncle & cousin belonged to rival gang

– Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir 2015): Gang threatened mother if she refused to allow her son to join the gang.

FAMILY =

NEXUS

GENDER: DOMESTIC VIOLENCE

• Matter of L-R- – 2009: DHS argues in

favor of two alternate PSGs:

– (1) “Mexican women in domestic relationships who are unable to leave,” or

– (2) “Mexican women who are viewed as property by virtue of their positions within a domestic relationship.”

• Matter of R-A- – 2004: DHS argues in

favor of the PSG of “married women in Guatemala who are unable to leave the relationship.”

– Looking at Matter of Acosta, DHS argues that gender is an immutable trait, and that marital status may be an immutable trait, depending on the circs.

• Precedential decision on domestic violence-based asylum . 26 I&N Dec. 388. (BIA 2014)

• Holding: “Married women in Guatemala who are unable to leave their relationship” are a particular social group.

• DHS conceded the validity of this

social group in its BIA brief. • Reiterates that gender is an

immutable characteristic. Provides that marital status may be an immutable characteristic “where the individual is unable to leave the relationship.”

MATTER OF A-R-C-G

MATTER OF A-R-C-G-, CONT…

PARTICULARITY

• “Married,” “women,” and “unable to leave the relationship” all have commonly accepted definitions in Guatemala.

SOCIAL DISTINCTION

• Case-by-case analysis turning on facts & evidence in each case. Here:

– Culture of “machismo and family violence” in Guatemala

– Sexual assault, spousal rape, etc. remain problems in Guatemala

– Guatemala enacted laws to protect DV victims – these serve as evidence that DV is a problem in the country

POST A-R-C-G- DECISIONS

IJ GRANTS

• Teenagers “taken” as girlfriends/wives, subjected to physical, verbal, sexual violence

• Women raped by gang members & forced to pay conjugal visits to prison

IJ DENIALS

• A-R-C-G does not apply to unmarried partners.

• Lack of nexus: IJ held DV was not on account of Respondent’s gender, rather partner’s crim. nature & drug abuse

• Describe Persecution: freq & type of violence, level of harm/injuries

• Define the Relationship: Clearly stated in terms of immutable characteristics

• Demonstrate social distinction: Societal acceptance of DV? Anti-DV laws? Police enforcement of DV laws?

• Establish persecutor’s motive: What did he say? Do?

• Show Impossibility of Internal Relocation

PROVING A DV

ASYLUM CASE

• Argue PSGs that parallel A-R-C-G: – Honduran women in a relationship with

a gang that they are unable to leave – Salvadoran women who are viewed as

“gang property” because they were successfully victimized by gang members in the past

– Guatemalan girls targeted to be gang girlfriends.

• Present evidence of special/distinct

treatment of women – Highlight: Laws that exist to protect

women, failure of authorities to protect women, 2nd class status of women in society

– Highlight: Gendered nature of gang violence against women - sexual violence

– Expert testimony is crucial

INTERSECTION: GENDER &

GANGS

CHILD ABUSE CLAIMS: NORTHERN TRIANGLE

PARTICULARITY

• Within society, and within families, children are treated differently – different rules, policies, expectations

• Laws exist to define “child” • Laws exist to protect

children

SOCIAL DISTINCTION

• Country conditions docs establish increasing violence against children, sexual violence against girls, homicides of boys.

• Country conditions docs show that child abuse & forced labor is widespread.

• Laws exist to protect children

• Protected ground must be at least one central reason for the persecution:

– INA Sec. 208(b)(1)(B)(i) – Can’t be tangential,

superficial, or subordinate to another reason

• But mixed motives still OK • Matter of J-B-N- & S-M-, 24

I&N Dec. 208 (BIA 2007) • Establish by direct or

circumstantial evidence

NEXUS

• Gang violence predicated on: – Desire to increase ranks, wealth,

influence – Generalized violence – Personal animosities

• Denials often overlook:

– Direct & circumstantial evidence – Expressions of pol. op./religion – Fact that protected ground may

be one of several central reasons

NEXUS DENIALS

• Follow 3-Step Process

1. Identify Protected Ground 2. Prove that Applicant

Possesses the Characteristic / Belongs to the PSG

3. Establish Nexus

STRATEGIES FOR

SUCCESS

• Applicant’s Affidavit – Cover all 3 req’d el. for est. PSG – Incl. facts that distinguish from neg. precedent

• Letters – Discuss how soc’y perceives, treats, and describes

the group – Discuss how soc’y views applicant

• Supporting Evidence – Scholarly writings re. perception of grp. – Ev. of country’s laws, policies, etc. protecting the

group – Newspaper articles, etc. discussing group

• Country Conditions Documentation – Targeted to Applicant’s persecution (not reports re.

general gang violence) – Gov’t unable/unwilling

• Experts – Cover social distinction, particularity, nexus, gov’t

unwilling/unable, impossibility of internal relocation

BUILD A STRONG RECORD

• Tell a compelling story • Argue:

– Social Distinction • Perception of who? • How does soc’y view & treat group

differently?

– Particularity • Who is in the group? Who isn’t? • Evaluate the group as a whole. Don’t pick

apart ea. characteristic. • Argue size/homogeneity irrelevant.

• Analogize to accepted PSGs • Distinguish negative case law • Highlight your facts/evidence: These cases are

highly fact specific! • Argue NEXUS.

WRITE A

BRIEF