Articulating Challenging PSGs in Asylum Cases Developments in Immigration Law: Crimmigration and Asylum April 1, 2016

Introduction “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.” 1951 Refugee Convention

Membership in a Particular Social Group (PSG) To demonstrate persecution based on membership in a PSG, an applicant should: 1.Identify the group; 2.Prove membership or perceived membership in that group; and 3.Establish that the past or feared persecution is based on membership or perceived membership in that group.

Defining a PSG A PSG must exist independently of the persecution that has been suffered or that is feared. It CANNOT be defined by the harm itself. Acceptable PSG: “Married Women in Guatemala who are Unable to Leave Their Relationship.” Unacceptable PSG: “Married Women in Guatemala who are victims of Domestic Violence”

Persecution and Nexus Persecution can be established by showing: 1.Past persecution; or 2.A Well-Founded Fear of future persecution. Nexus The persecution must be “on account of” the applicant’s race, religion, nationality, membership in a PSG, or political opinion.

Test: Is a Group a PSG? A PSG must: 1.Consist of members who share a common, immutable characteristic; 2.Be defined with particularity; and 3.Be socially distinct within the society in question. Some overlap between particularity and social distinction. Matter of A-R-C-G- (citing Matter of M-E-V-G-; Matter of W-G-R-).

Immutability Immutable Characteristic: 1.Something that cannot be changed; or 2.Something that group members should not be required to change in order to avoid persecution. Example: Gender Matter of A-R-C-G-; Matter of W-G-R-

Particularity and Social Distinction Particularity 1.Discrete class of persons with definable boundaries. 2.Cannot be too broad, too diffuse, too amorphous, or too subjective. 3. Terms used to define the group – commonly accepted definitions in the society in question? Social Distinction 1.Is the group perceived and recognized as a distinct entity by society? 2.Does NOT mean literal or ocular visibility. 3.Is based on society’s perception, NOT the persecutor’s perception. Matter of A-R-C-G-; Matter of M-E-V-G-; Matter of W-G-R-

Domestic Abuse Asylum Appeal, Eighth Circuit Court of Appeals

Facts  Young woman began relationship with an older man while she was a minor.  Became pregnant with his child.  After being informed about the pregnancy, man began to rape and beat petitioner (at the time the sexual abuse began, she was a minor)  Emotional, physical and sexual abuse continued after birth of son  After two attempts, petitioner fled the relationship  Lived in country for five years, moving from place to place out of fear abuser would find her.

PSG 1: “[country] women in domestic relationships who are unable to leave their relationships.”PSG 2: “[country] women unable to leave the father of their children.”

PSG 1: “[country] women in domestic relationships who are unable to leave their relationships.”PSG 2: “[country] women unable to leave the father of their children.”

PSG 1: “[country] women in domestic relationships who are unable to leave their relationships.”PSG 2: “[country] women unable to leave the father of their children.” “Suffers the same flaw as the first PSG”

PSG 1: “[country] women in domestic relationships who are unable to leave their relationships.” IJ and BIA found that Petitioner was not a member of her proposed social group because she “left” her relationship OIL made the same argument in its answering brief Our response: The IJ and BIA failed to analyze the record evidence that A-R-C-G- says is most important to determining whether Petitioner was “able to leave” her domestic relationship. Here is where we emphasize the contextualized approached mandated by A-R-C-G- and DHS. Record evidence the agency failed to consider: Abuser’s beliefs Cultural, religious, and legal norms Expert testimony Petitioner’s testimony Physical separation = able to leave In the context of past persecution, the relevant question becomes whether “economic, social, physical, or other constraints made it impossible for the applicant to leave the relationship” at the time of the past persecution. See Department of Homeland Security Supplemental Brief, Matter of L-R-

PSG 1: “[country] women in domestic relationships who are unable to leave their relationships.” IJ and BIA found that Petitioner was not a member of her proposed social group because she “left” her relationship OIL made the same argument in its answering brief Our response: The IJ and BIA failed to analyze the record evidence that A-R-C-G- says is most important to determining whether Petitioner was “able to leave” her domestic relationship. Here is where we emphasize the contextualized approached mandated by A-R-C-G- and DHS. Record evidence the agency failed to consider: Abuser’s beliefs Cultural, religious, and legal norms Expert testimony Petitioner’s testimony The agency committed reversible legal error: Petitioner’s physical separation from her abuser is not determinative of her “ability to leave” the relationship.

PSG 1: “[country] women in domestic relationships who are unable to leave their relationships.” IJ and BIA found that Petitioner was not a member of her proposed social group because she “left” her relationship OIL made the same argument in its answering brief Our response: The IJ and BIA failed to analyze the record evidence that A-R-C-G- says is most important to determining whether Petitioner was “able to leave” her domestic relationship. Here is where we emphasize the contextualized approached mandated by A-R-C-G- and DHS.

PSG 1: “[country] women in domestic relationships who are unable to leave their relationships.” Marriage is NOT required for a cognizable domestic violence based PSG The A-R-C-G- PSG articulation: “married women in Guatemala who are unable to leave their relationship.” ”[O]ur decision in Matter of A-R-C-G-, does not necessarily require that an applicant seeking asylum or withholding of removal based on domestic violence have been married to his or her abuser. Rather, we look to the characteristics of the relationship to determine its nature.” -Matter of D-M-R- “[T]he absence of a legal marriage is not ipso facto a distinguishing factor that precludes otherwise analogous claims under the particular social group rationale set forth in Matter of A-R-C-G-.” -Matter of E-M-

Northern Triangle Gang Girlfriend Defensive Asylum, Immigration Court

Facts  Client was teenager when first targeted in El Salvador  Gang members approached her daily  One member demanded she be his girlfriend  Threatened and harmed family members

PSGs and Political Opinion  Young Salvadoran women who are viewed as property by gang members  Young Salvadoran women who are unable to leave a relationship with a gang member  Young Salvadoran women  Gang members and men in general do not have a right to dominate and possess women

Women as property PSG  Immutability  Gender/ age  Viewed as property by gangs—machismo impacts  Particularity  Women viewed as property v. those who are not  Social Distinction  Laws in E.S.—reference subordination of women

Unable to leave relationship PSG  Immutability  Gender / age  “unable to leave a relationship”—social & physical constraints; male dominance and power  Particularity  Women forced into these relationships are identifiable  Social Distinction  Commonly assumed reason in murder cases  Again, the laws—inequalities of power ** Ley Especial Integral Para Una Vida Libre de Violencia para Las Mujeres [Comprehensive Special Law for a Life Free from Violence for Women]

Young Salvadoran women PSG  Immutability  gender and age  Particularity  definable group (joven)  Social Distinction  Heightened exposure to violence  And again, the laws Political Opinion: Gang members and men in general do not have a right to dominate and possess women

Northern Triangle Police Officer Affirmative Asylum, USCIS

Delimiting PSGs Based on Work  Witness PSG  Current Investigator PSG for Past Persecution  Former Investigator PSG for Well-Founded Fear

Witness PSG  Common Immutable Characteristic: Past testimony  Particularity/Social Distinction: Utilizing country-of- origin’s witness protection law(s)  Helpful Caselaw:  Garcia v. Att’y Gen., 665 F.3d 496 (3d Cir. 2011): witnesses “assisting law enforcement against violent gangs that threaten communities in Guatemala.”  Gashi v. Holder, 702 F.3d 130 (2d Cir. 2012): “persons who witnessed war crimes by the KLA and Haradinaj and cooperated with authorities investigating those crimes.”  Henriquez-Rivas v. Holder, 707 F.3d 1091 (9 th Cir. 2013): Salvadorans “who had testified against M-18 gang members in open court”

Current Investigator PSG  Common Immutable Characteristic: Past investigatory work  Distinguishing from Fuentes: “dangers faced by policemen as a result of that status alone”  Police officers attacked for being “highly visible embodiments of the power of the state.”  Investigators persecuted for specific investigatory, testimonial or prosecutorial work

Former Investigator PSG  Differentiating PSGs for past persecution and well- founded fear  Common Immutable Characteristic: Status as former police officer  PSGs of Former Police Officers or Soldiers Recognized as Cognizable By:  Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988)  Matter of M-E-V-G-, 26 I. & N. Dec. 227, 240 (BIA 2014)  Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014)  Gathungu v. Holder, 725 F.3d 900, 908 (8th Cir. 2013)  Madrigal v. Holder, 716 F.3d 499, 505 (9th Cir. 2013)  Koudriachova v. Gonzales, 490 F.3d 255, 261 (2d Cir. 2007)  Altidor v. Att’y Gen., 247 Fed. App’x 342, 346 (3d Cir. 2007)

Imputed Political Opinion Why not argue for an actual political opinion? Rule of Law & Anti-Gang Opinions – Challenges What is a political statement? Emerging Argument: Gangs as de facto governments. Political and Historical Context Analogizing to DeBrenner Nexus

“Indeed, it is because the United States has fostered Haiti’s unlivable conditions that it refuses to recognize Haitians’ claims. Acknowledging the status of thousands of Haitians as refugees would be tantamount to admitting that the United States supported cruel dictators who murdered and terrorized their own people, an admission that would tarnish the U.S. image as the world’s primary defender of freedom and democracy.” Testifying to Rightlessness: Haitian Refugees Speaking from Guantánamo by A. Naomi Paik

Supporting PSGs with Evidence

Questions