1. Representing Women from Central America: Leveraging International Law to Strengthen Asylum Claims
March 2017

2. Discussion Points Introduction of UNHCR, CGRS, and Tahirih;
Discussion of UNHCR and international law guidance on women’s asylum claims;
Current issues and strategies for representing women from Central America in U.S. asylum proceedings;
Hypothetical case example.

3. UNHCR in the United States

4. UNHCR: Protection of Women
UNHCR’s work on protection of women in the U.S.:
Identifying root causes of migration through research and public reports
Protecting access to territory and asylum through advocacy & confidential reporting
Identifying protection challenges in accessing territory/asylum through monitoring
Offering interpretive guidance on the refugee definition from a gender perspective through strategic litigation

5. Women on the Run
Purpose: To learn directly from women why they left their homes and to assess the severity of the international protection situation;
Scope: Based on160 interviews with women from NTCA countries and Mexico who were either recognized as refugees or who had been found to have a credible or reasonable fear of persecution;
Findings:
“64% percent” of the women interviewed described being the targets of direct threats and attacks by members of criminal armed groups;
For many of the women interviewed, the increasing violence from criminal armed groups occurred alongside repeated physical and sexual violence at home;
Of the 60% of women interviewed who reported incidents to police, all stated that they received inadequate protection or no protection at all.

6. International Refugee Law in the U.S. Context

7. International Treaties
U.S. Legal Framework
International Treaties
U.S. acceded to the 1967 Protocol in 1968
The Protocol incorporates the substantive provisions of the Convention
Domestic Legislation
Refugee Act of 1980: Enacted by Congress to bring the U.S. into conformance with the 1967 Protocol

8. How to Use UNHCR Interpretive Guidance
Courts look to UNHCR guidance and reports for:
Interpretation of the refugee definition
Guidance on interpreting specific legal questions
Evidence of country conditions in the asylum seekers country of origin
UNHCR Handbook
UNHCR Guidelines on International Protection
UNHCR Eligibility Guidelines
UNHCR reports
UNHCR Guidance Includes:

9. UNHCR Guidance on Women’s Asylum Claims
Guidelines on International Protection No. 1: Gender Related Persecution
Gender-related forms of persecution (FGM, domestic violence, sexual violence);
Gender-sensitive approach to interpreting the Convention grounds;
Interpreting PSG to encompass gender/sex;
Interpreting political opinion to encompass views on gender roles.

10. UNHCR Guidelines on Protection of Refugee Women
Adjudicators should be aware of the status and experiences of women in the country from which a refugee claimant has fled, including:
The position of women before the law;
The political rights of women;
The social and economic rights of women, including the right to marry the person of her choice, the right to an education, a career, and a job or remunerated activities, the status of a widow or divorcee, and freedom of dress;
The incidence of reported violence against women, the forms it takes, protection available to women and the sanctions or penalties on those who perpetrate the violence;
The consequences that may befall a woman on her return in light of the circumstances described in her claim.

11. UNHCR Eligibility Guidelines
Eligibility Guidelines for Honduras & El Salvador
“In the territories where the gangs operate, sexual and gender based violence against women and girls is reportedly widespread, as is the forcible recruitment of girls to carry out tasks for the gangs.”
“Women and girls may be seen by individual gang members as their partner even when a woman or girl has never consented to being in a couple. Women and girls in this situation are reported to be subjected to persistent violence, while being unable to seek protection due to the authority exercised by their “partner” in the area controlled by the gang.”
“Domestic violence against women and girls in Honduras is reported to be widespread, as is impunity for the perpetrators.”
“Domestic violence is reportedly considered the leading form of violence against women and girls in El Salvador, followed closely by violence perpetrated by gang members.”

12. UNHCR Eligibility Guidelines
Identified Risk Profile for El Salvador and Honduras
“Depending on the particular circumstances of the case, UNHCR considers that women and girls, in particular but not limited to women and girls from areas where gangs operate or those from social milieus where sexual and gender-based violence against women and girls is practised, may be in need of international refugee protection on the basis of their membership of a particular social group, and/or their (imputed) political opinion, or on the basis of other Convention grounds.”

13. UNHCR Guidance on Women’s Asylum Claims, cont.
Additional guidance and reports:
Women on the Run;
Guidelines on International Protection No. 1: Gender-Related Persecution
Eligibility Guidelines for El Salvador and Honduras
Guidelines on the Protection of Refugee Women;
UNHCR’s amicus briefs in:
Matter of A-R-C-G et al;
Matter of Alvarado Peña.

14. Representing Women from Central America

15. Center for Gender and Refugee Studies
The Center for Gender & Refugee Studies protects the fundamental human rights of refugee women, children, LGBTQ individuals, and others who flee persecution in their home countries. We provide legal expertise, training, research and publications; engage in appellate litigation and policy advocacy on asylum issues; and conduct human rights fact-finding on root causes of persecution and refugee flight. Much of our work centers on Central American women and children’s claims, including those involving gang violence.
We maintain:
An extensive library of litigation support materials, including model materials, sample briefs, and global expert declarations
A database of asylum records and decisions

16. Tahirih Justice Center
IVLP Visit
Tahirih Justice Center
Nearly 20,000 immigrant women and children served since 1997
Award-wining pro bono program, with a longstanding 99% litigation success rate and 65-70% of cases co-counseled
A cutting edge leader on public policy advocacy on issues affecting immigrant women and girls
Four offices: Greater Washington DC, Baltimore MD, Houston TX, and recently opened San Francisco Bay Area CA
Holistic Services Tahirih offers clients case management support for shelter, medical and other legal and non-legal needs.
LOCAL IMPACT
NATIONAL REACH
INDIVIDUALS TRANSFORM
SOCIETY TRANSFORMS

17. Case Example

18. Hypothetical: Clara
Clara, an 16-year-old Mam girl, was born and raised in a small town outside of Antigua, Guatemala. She attended school until the 6th grade and then began to help out in the fields. Her brothers received a full high school education.
At age 13, a 19-year-old ladino gang member in their town, Mauricio, raped Clara while she was working. Mauricio said that now she was now “his.” Clara felt that she had no choice but to then begin dating Mauricio. Her father had already told her that she had better find a man to take care of her because they would not feed and clothe her forever.  
Clara moved in with Mauricio and his family. While in Guatemala, Mauricio was controlling. He would get angry and demean her, calling her “stupid” or “useless,” and occasionally he would hit her, call her dirty and ”indio,” and force sex on her. Clara would try to stand up to him because she didn’t believe he should treat her that way. Mauricio decided to go to the U.S. after about a year. While in the U.S. other members of Mauricio’s gang kept watch over Clara. They followed her and reported to Mauricio everything she did. He would regularly call her and warn her that she still “belonged” to him. Eventually, Mauricio was deported and came looking for Clara, so she fled at age 15.
Analysis – DV Case, use ARCG
Is there PP?
Yes, Mauricio raped her when Clara was 13 before relationship began
After she moved in with M and his family, he called her “useless” “stupid” and hit her – explore whether any additional abuse there and from Mauricio’s family members esp. when he was away
Is there a WFF (1/10 chance) of future persecution?
Evidentiary presumption of WFF because of past persecution – 8 CFR (b)(1)
Objective facts establishing risk of future persecution
Clara singled out by Mauricio –
Look at similarly situated girls in Honduras to see if there’s systematic pattern/practice of persecution against the relevant PSGs – CCs, anecdotes from Aura or others about other girls being harmed/raped by gangs – if prevalent in her neighborhood/city, may narrow PSG that way, but could keep broader if countrywide
Able to leave? He left her, but then did come back. Also other gang members reported to him about her, so she was still within his control.
State unable/unwilling to protect:
Failure to respond to requests for help
Evidence of discrimination or adherence to prevailing cultural norms, e.g., when women report to authorities
Failure to implement protective laws
Inability/unwillingness to confront gangs, no real authority in gang territory
Unenforceability of laws
Low prosecution rates
Low reporting rates (lack of confidence in system)
System remains centralized
Children depend on adults to protect and access protection (Asylum Office Basic Training Course)
Internal Relocation
Can a woman or family be expected to relocate?
Generally unreasonable
Family not supportive of woman’s decision to leave abusive relationship and family attempts to reunite woman with abusive partner
Strong family/community bonds and need for family support to survive ensure woman maintains contact with family and they know her whereabouts
Corruption and bias against women compel government authorities, including police, to assist male friends/relatives find women who have left
Women lack economic resources to relocate
Limited number of shelters in country and shelter only temporary

19. Asylum: Quick Overview

20. Asylum Legal Elements
Past persecution OR well- founded fear of persecution
Nexus (“on account of”)Protected Ground
Race, Religion, Nationality, Membership in a particular social group (PSG), or Political opinion
Committed by government OR someone the government is unwilling or unable to control
Internal relocation in-country not reasonable
No bars to eligibility
Asylum is available to a “refugee” defined under U.S. law as: “Any person who is outside any country of such person’s nationality 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.” 8 U.S.C. § 1101(a)(42)
Broken down into elements: well founded fear, harm, nexus, group membership, state action, inability to relocate, and absence of bars
Bars: OYFD, safe third country (Mexico?), firm resettlement, SNPC, POO, terrorism
Each element presents challenges in claims involving gender-based violence.
Why historical resistance (important to understand context and what you’re up against)?
a. gender not listed and refugee regime seen historically through the lens of a male political dissident &
b. FLOODGATES

21. Proving the Case
Persecution – demonstrate harms grave enough to meet the definition
Protected Ground – establish the ground, then establish that ground applies to applicant or was imputed to her
Nexus – statements by the abuser such as “you are my woman” or “I can do whatever I want to you” as well as country conditions
Government unable or unwilling – show prevalence of violence and levels of impunity; applicant need not have sought protection if it would have been futile
Relocation: Inability of applicant to safely relocate within her country because the persecutor can track her down or relocation would not be reasonable due to factors such as age, gender, health issues, civil strife, or because other harm would result.
Domestic violence: frequency, level of harm, injuries – relevant to harm = persecution
Relationship status: A clearly defined relationship expressed in terms of immutable or fundamental characteristics (e.g., Guatemalan women in domestic relationships who are unable to leave)
Country conditions: whether there is broad societal acceptance of domestic violence in the country of origin; relevant to “social distinction”
Failure of the government to protect: necessary in cases of non-State persecutors to show “unable or unwilling”
Motive: Persecutor’s beliefs about the applicant, such as that she is his property, as shown by comments like “you are my woman” or “I can do whatever I want to you.”
Relocation: Inability of applicant to safely relocate within her country because the persecutor can track her down or relocation would not be reasonable due to factors such as age, gender, health issues, civil strife, or because other harm would result.

22. Other Protected Grounds
Statutory Grounds- U.S. Law
Political opinion (e.g. feminism)
Fatin v. INS, 12 F.3d 1233, 1242 (3d Cir. 1993) (“we have little doubt that feminism qualifies as a political opinion”); cf. Fisher v. INS, 79 F.3d 955 (9th Cir. 1996)
Religion (e.g. resisting assigned gender roles)
Matter of S-A-, 22 I&N Dec (BIA 2000)
Race/Ethnicity (e.g. indigenous)
Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000)
In addition to PSG, there may be other applicable grounds in a DV Case
PO: BUT, need to show nexus
Political opinion may be “one central reason” for domestic violence.
P.O. may be applicable in a case where a woman has expressed her feminist views, or opposition to male domination, and been targeted as a result. Might also be applicable in cases of girls, for example, who have views on gender norms that girls should be able to marry who they choose and have a belief in women’s rights, which may be deemed a P.O. regardless of whether she sees her views as political.
Religion may be “one central reason” for domestic violence
Resisting religion-assigned gender roles or norms, for example, can be viewed as rejecting the religion itself (or one interpretation of the religion), and lead to persecution. Matter of S-A-, 22 I&N Dec (BIA 2000) (recognizing physical abuse of a daughter who resists religion-assigned gender roles as persecution based on religion). Harmful practices directed at a specific gender believed to be based on religion including female genital cutting and other harmful coming of age practices.
Indigenous women may be especially susceptible to certain types of abuse and lack of state protection.
Persecution based on race may be by individual of the same race.
Case example: How would each of these grounds be formulated in Clara’s case?

23. Particular Social Group – U.S. law
(1) Immutable or fundamental characteristic
Matter of Acosta, 19 I&N Dec. 211 (BIA 1985)
(2) Socially distinct*
Perceived as a group by society (persecutor’s view not determinative)
Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of C-A-, 23 I&N Dec. 951 (BIA 2006)
(3) Particularity*
Terms commonly understood/accepted in society; discrete and definable boundaries
Matter of W-G-R-; Matter of M-E-V-G-; Matter of S-E-G-, 24 I&N Dec (BIA 2008)
Social distinction = formerly social visibility
An immutable characteristic is one “that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership.”
Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985).
“Our precedents have collectively focused on the extent to which the group is understood to exist as a recognized component of the society in question.” W-G-R-, 26 I.&N. Dec. 208, 217 (BIA 2014).
Recognized as a discrete group in the society in question
Does not require “on sight” visibility
Evidenced by:
Higher incidence of violence against group members
Discrimination and harassment of group members
Laws enacted that address the group in some way
“A particular social group must be defined by characteristics that provide a clear benchmark for determining who falls within the group.” M-E-V-G-, 26 I.&N. Dec. 228, 239 (BIA 2014).
Group must be discrete
Group must have definable boundaries so it’s clear who belongs
Group must not be amorphous, overbroad, diffuse or subjective
Does not refer to the “size” of the group nor should it be interpreted to require homogeneity, but limiting the internal diversity of the group may be helpful
Commonly accepted definitions of terms
Social, cultural, and legal constructs of the group
Police refusal to intervene because of group status
Case example: How would PSG be formulated in Clara’s case?
* Note these requirements depart from UNHCR approach and have been called into question by at least some courts

24. Gender-Based Asylum in U.S. Courts

25. Evolution of the law: BIA and federal courts
Sex as immutable: Matter of Acosta, 19 I&N Dec. 211 (BIA 1985)
Repressive social mores: Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993); Yadegar Sargis v. INS, 297 F.3d 596 (7th Cir. 2002)
Female genital cutting: Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996); Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004); Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005); Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005); Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007); Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008)
Rape and sexual violence: Matter of D-V- (BIA 1993); Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330 (3d Cir. 2008)
Bride price customs: Ngengwe v. Mukasey, 543 F.3d 1029 (8th Cir. 2009)
Forced marriage: Bi Xia Qu v. Holder, 618 F.3d 602 (6th Cir. 2010)
Femicide: Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010)
“Honor” killing: Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011)
Sex trafficking: Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (en banc)
So, how have women fleeing these various forms of gender harm fared in their claims for asylum?
Going back to the BIA’s seminal decision in Acosta, there has been a recognition that persecution on the basis of sex (an immutable characteristic) can be a basis for asylum
Following Acosta there has been a growing recognition of gender-based persecution as worthy of asylum in U.S. law as well as internationally (with UNHCR first issuing guidelines in 1991)
It has been recognized by the BIA and the federal courts as well as U.S. guidelines issues in 1995
The first BIA case recognizing a gender-defined social group and a gender-based persecution was Kasinga for women (and even earlier recognized sexual orientation =based persecution in Toboso Alfonso in 1990)
Since then federal courts consistently recognized various gender-based harms as persecution, gender-defined PSGs as cognizable, and harms inflicted for gender-based motives

26. Proposed Asylum Regulations (2000)
Contentious history of DV asylum in the U.S.
Matter of R-A- (1999)
Matter of R-A- (2009)
Matter of A-R-C-G- (2014)
1995
2005
2015
Matter of Kasinga (1996)
Matter of L-R- (2010)
While the law has developed for other forms of gender-based persecution, domestic violence-based claims (those involving intimate partner violence) have been met with resistance in the courts.
Asylum granted to Rody Alvarado was overturned by BIA in 1999 (walking back from Kasinga). But, the BIA soon forced to retract its decision given outcry. That left void in the law that was not filled for fifteen years. During that time, women legal limbo – some IJs granting and some IJs denying.
But, NO cases moving past the BIA because there was a hold on deciding those cases until the gov’t issued regulations – which never happened.
Then, finally, in 2014 BIA issued precedential opinion recognizing DV as basis for asylum.
Proposed Asylum Regulations (2000)

27. Facts Holding Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)
Married Guatemalan woman suffered extreme violence and death threats from her husband
Attempted to leave him, but he found her and threatened to kill her
Sought protection of the police who refused to get involved in a “marital relationship”
“[M]arried women in Guatemala who are unable to leave their relationship” constitutes a cognizable social group
Immutability
Social distinction
Particularity
ARCG involved a Guatemalan woman who experienced extreme violence at the hands of her husband (broken nose, paint thinner, etc.). She reported to the police, but they refused to help her and he threatened to kill her if she told anyone, so fled to the U.S.
The IJ denied asylum saying she was not a member of a PSG.
BIA reversed denial of asylum and held that a social group defined by “gender, nationality, and domestic relationship status may be cognizable under the BIA’s 3-part test for cognizability of a PSG
Immutability: gender/nationality a given; relationship status (there marriage) where a woman “unable to leave” (e.g. unable to legally terminate OR abuser unwilling)
Social distinction: including high rates of violence against group members, the enactment of laws designed to protect victims or punish perpetrators, and lack of effective enforcement of those laws
Particularity: little analysis – but point looking to whether terms (women/Guatemala/married) have sufficiently clear definitions

28. Post A-R-C-G- interpretive issues
Does A-R-C-G- extend to women fleeing domestic violence in countries other than Guatemala?
Does A-R-C-G- extend to women who were not formally married to their abusers?
What does it mean for a woman to be “unable to leave” such that her domestic relationship is immutable?
Is domestic violence on account of a woman’s gender or just “personal”?
If there are laws on the books, can a woman establish her government is unable or unwilling to protect her?
Decision incredibly important, but only addressed PSG and leaves other issues like nexus/state action
Some key issues have arisen in the jurisprudence following ARCG
a. What about countries other than Guatemala? Yes, has been extended to other countries with patriarchal cultures that have social/legal norms that tolerate and encourage this violence. Even seen cases from countries like Spain.
b. What about women who were not married to their abusers? ARCG does not make marriage a requirement and the BIA has held as much in several decisions following ARCG, but they’re unpublished so there is some confusion. Federal courts have remanded and OIL has agreed to remands in cases where unmarried and the BIA held that marriage required given the BIA’s inconsistent positions. In those cases, other sorts of relationships like “domestic partnerships” are recognized in the society and can be equally immutable.
c. Another area that has caused confusion in when a relationship is “immutable” such that a woman be deemed “unable to leave” – by definition people coming to the U.S. But, what about women who have moved out of the shared home for some period of time? What if they obtain a divorce? But, the men continue to control. Some good decisions out of the BIA and fed courts (next slide)
d. And, how is nexus established in these cases? There is a misconception among adjudicators that DV is just “personal” dispute between male and female partners, e.g. he didn’t like her food, which fails to understand/recognize that DV is about power and control and experts have found that gender (i.e. being female) is the single biggest factor. Moreover, considered in context of patriarchal society where women subordinated and considered property (circumstantial evidence)
e. Finally, misconception among adjudicators that gov’t’s able/willing to protect where there are strong laws on the books and each NT country has progressive laws on violence against women. Discount evidence that laws not enforced. – look to whether reported and the response, but also to whether would have been futile
Case example: How do these issues impact the analysis in Clara’s case?

29. Post A-R-C-G-: BIA
Partners need not be married in order to have a cognizable social group.
Multiple unpublished BIA decisions hold that non-marriage relationships can be the basis of a DV asylum claim:
Matter of E-M- (BIA Feb. 18, 2015) “[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-.” BIA remand.
Matter of D-M-R- (BIA June 9, 2015): “[O]ur decision in Matter of A-R-C-G-…does not necessarily require that an applicant seeking asylum or withholding…based on domestic violence have been married to his or her abuser.” BIA grant of withholding.

30. Positive (unpublished)
Post A-R-C-G-: Circuit Courts
Negative (published)
Positive (unpublished)
Vega-Ayala v. Lynch, 833 F.3d 34 (1st Cir. 2016) (distinguishes ARCG finding “Salvadoran women in intimate relationships with partners who view them as property” not immutable or socially distinct)
Marikasi v. Lynch, 840 F.3d 281 (6th Cir. 2016) (distinguishes ARCG finding applicant failed to prove that she could not leave relationship or not relocate)
Alvarado‐Garcia v. Lynch, No. 15‐71138 (9th Cir. Nov. 16, 2016) (reversed BIA determination woman was able to leave relationship where even after she attempted to leave he continued to abuse and control her)
Alonzo-Rivera v. Att’y Gen., No (11th Cir. May 20, 2016) (reversing finding that Honduran government able and willing to control)
Following ARCG, many cases have been remanded back to IJs, but we are now starting to see more and more cases make it to the courts of appeals. Unfortunately, the only two published decisions following ARCG are negative.
In Vega-Ayala, First Circuit, upheld denial of asylum to a Salvadoran woman.
Facts: In that case, the applicant was in a relationship with her abuser for 18 months; didn’t live together; save 2x week; raped her/pregnant. Abuser incarcerated on unrelated kidnapping charge. She asked for assistance – he bought her a house for her and daughter live in, threatening her from jail. Left when he was still incarcerated. When he was released from jail, threatened her mother and her.
Holding: 1st Cir. Found case “far cry” from ARCG and found that “being in an intimate relationship with a partner who views you as property is not an immutable characteristic.” Also found proposed PSG (“Salvadoran women in intimate relationships with partners who view themas property”) didn’t have social distinction.
*possible first circuit decision coming down the pike
2. In Marikisi (6th Cir.) also upheld denial of asylum. Adverse credibility determination AND distinguished from ARCG:
went into hiding in Zimbabwe and had no contact with husband;
(2) stayed with friends and never returned to husband;
(3) substantial period of time passed since going into hiding and remained out of contact with husband;
(4) remained out of contact w/ husband after leaving Zimbabwe.
6th Cir notes that Marikisi able to “freely move” through country and avoid her husband and therefore failed to substantiate any religious, cultural, or legal constraints that prevented her from separated from the marital relationship in Zimbabwe or moving to a different part of the country.
BUT – this shouldn’t serve to deny future cases because (1) case-by-case; and (2) mischaracterization of facts to consider “living in hiding” as reasonable
POSITIVE
At the same time, here is some positive movement at the COAs albeit in unpublished opinions
Alvarado‐Garcia, No. 15‐71138 (9th Cir. Nov. 16, 2016): held BIA determination woman was able to leave relationship not supported by substantial evidence where – even after she attempted to leave her abuser’s home and resisted his attempts to reconcile – he “continued to abuse and control” her, beating her when he found out she had reported to the police, following her when she came home from work and demanding reconciliation, and enlisting his gang to threaten her into returning)
Alonzo Rivera: case involved a Honduran woman who had reported DV, but then later withdrew her complaint. Court found error where the agency failed to consider expert testimony in the record about failures of the system.

31. Post A-R-C-G- Approach
Gender + Nationality + Relationship Status
+ Other immutable characteristics
Married women in [country X] who are unable to leave their relationship
[Nationality] women in domestic relationships who are unable to leave
[Nationality] women who are viewed as property by virtue of their positions within a domestic relationship
Other: ethnicity, partner’s status as police officer or gang member, fundamental belief, etc.
Given this, following ARCG, how should claims involving intimate partner be argued? CGRS recommends
Gender + nationality + relationship status
Might also include other characteristics like ethnicity (indigenous Guatemalans) or partners status as police officer or gang member
Could also consider viewed as property (see Matter of LR brief)
Note: evidence of legal and social norms accepting DV and subordinate status of women, can be very important to show that the violence was on account of social group membership.

32. Successful cases: Intimate Partner Violence
An Omaha IJ granted asylum to an indigenous Guatemalan woman who suffered violence at the hands of her father and domestic partners, one of whom raped and kidnapped her. CGRS Case No
A Houston IJ granted asylum to a Salvadoran women who had suffered abuse by her gang member partner. CGRS Case No
A San Antonio IJ granted asylum to a Guatemalan woman whose partner went to prison following her reports of his abuse, but who was released after only two weeks when he intensified threats. CGRS Case No
A Portland IJ granted withholding to a 45-year-old Mexican woman who was forced to marry her first husband when she was 13, even though he was no longer alive because of her repeated victimization in subsequent relationships. CGRS Case No. 8226
Blaine - 1 minute, just to show that cases across country are prevailing!

33. Gender-based PSGS: other contexts
Femicide
Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010)(rejecting BIA’s determination that “Guatemalan women” was not a valid PSG and remanding for consideration)
Female Genital Cutting
Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005) (“females in the Tukulor Fulani tribe”)
Trafficking/Forced Prostitution
Cece v. Holder, 733 F.3d 662 (7th Cir. 2013)(“young Albanian women who live alone” constitute a PSG); Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014) (“young Albanian women” or “young Albanian women between the ages of 15 and 25”)
Sexual Slavery
Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330 (3d Cir. 2008) (“women who have escaped involuntary servitude after being abducted and confined by the FARC”)
Forced Marriage
Bi Xia Qu v. Holder, 618 F.3d 602 (6th Cir. 2010)(“women in China who have been subjected to forced marriage and involuntary servitude”)
Mohammed – recognizes girls/women of particular clan/nationality may constitute PSG; gender listed by BIA in Acosta as immutable characteristics; USCIS own Gender Guidelines state gender is immutable trait; UNHCR guidelines PSG – women may constitute PSG
Abay - found 9 y.o. daughter fears future FGM – helpful language re: v. young children not being capable of expressing fear in same way or with same detail as adult so apply liberal benefit of the doubt; mother experienced past FGC and parent of female children subjected to FGM
Niang – females in the Tukulor Fulani tribe
Hassan v. Gonzales (Somali females)
Bah v. Mukasey – BIA seemed to have found that petitioners underwent FGM, but assumed without deciding that persecuted on account of PSG. PSG seems to be gender combined with ethnicity, nationality or tribal membership, which satisfies PSG requirement)

34. Sexual Violence and Other Grounds
Matter of D-V-, 21 I&N Dec. 77 (BIA 1993) (activist member of pro- Aristide church group was gang-raped by soldiers on account of political opinion and religion)
Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000) (rape motivated by applicant’s Amharic ethnicity)
Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003) (remanding CAT claim based upon rape of soldiers and consideration of asylum based upon applicant’s tribal identity)
Uwais v. Atty. Gen., 478 F.3d 513 (2d Cir. 2007) (Sri Lankan police officer detained, sexually assaulted, beat and attempted to rape applicant because of Tamil ethnicity and imputed political opinion that she supported the Tamil Tigers)
Marynenka v. Holder, 592 F.3d 594 (4th Cir. 2010) (remanding due to IJ error – rape by 4 police officers for political opinion, membership in Belarusian youth organization opposing the government)
What about in cases where there is gender-based harm outside of context of intimate partner relationship? Or before an intimate partnership (consensual or not) has formed?
There are no published decisions recognizing a gender-defined PSG for purposes of sexual violence (outside of FGC context), but Perdomo does leave some opening for a gender-based claim involving sexual violence
In cases involving sexual violence, political opinion and race have been the most successful
BUT, it’s important to note that often a gender-based motivation may not have been argued or considered by the court
These are positive decisions, but there are also negative decisions - be sure to document existence of PSG
Castillo-Diaz v. Holder, 562 F.3d 23 (1st Cir. 2009)(rejecting “rape victims who have borne a child as a result of rape” and “child rape victims who are severely traumatized” with little analysis)
Kante v. Holder, 634 F.3d 321 (6th Cir. 2011)(rejecting “women subjected to rape as a method of government control” because PSG is “generalized and far-reaching” and “circularly defined by the fact it suffers persecution”)

35. Demonstrating Failure of State Protection
Failure to respond to requests for help
Evidence of discrimination or adherence to prevailing cultural norms, e.g., when women report to authorities
Failure to implement protective laws
Inability/unwillingness to confront gangs, no real authority in gang territory
Unenforceability of laws
Low prosecution rates
Low reporting rates (lack of confidence in system)
Touch on state unable/unwilling to protect here (less detail later)
Case example: How would this be demonstrated in Clara’s case?

36. Gender/Gang Claims

37. Gender-Based Central American Gang Cases
No positive, published case law
Granada-Rubio v. Lynch, 814 F.3d 35 (1st Cir )(finding “women with children whose husbands live and work in the US and it is known to society as a whole that the husbands live in the US” is not socially distinct – extortion context)
Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir ) (rejecting “women in El Salvador between the ages of 12 and 25 who resisted gang recruitment”)
Mendez Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010) (rejecting PSG “young women recruited by gang members who resist such recruitment” for lack of SD/P)
A-R-C-G- should be argued to apply even where a woman is forced into a relationship and even in shorter-term relationships
First, it is well-recognized at this point that gender/sex may be an immutable/fundamental characteristic that defines a social group.
Outside of the intimate partner context, there may be other gendered dimensions to gang violence
For example, rape survivors may carry a certain shame or stigma and this is recognized by the gang and is a shared past experience she cannot change
Moreover, single girls and single mothers, may be targeted by gangs as particularly vulnerable
Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010) (rejects PSG “young women recruited by gang members who resist such recruitment”)
Rivera Barrientos v. Holder, 658 F.3d 1222 (10th Cir. 2011) (held that El Salvadoran women between ages of 12 and 25 who resisted gang recruitment made up group that could be described with sufficient particularity to meet standard for “particular social group”, but lacks the visibility requirement. Applicant suffered gang rape for refusal to join. Persecution not on account of political opinion)
Caal-Tiul v. Holder, 582 F.3d 92 (1st Cir. 2009) (gang threats to indigenous Guatemalan woman whose daughter either refused to date a gang member or to join. Held: persecution not on account of social group “indigenous women”, but rather part of widespread criminal violence)
Gang violence should not be viewed in a vacuum – it occurs in patriarchal and machista societies that devalue women/girls and treat them as the property of men.
These patriarchal attitudes are reproduced and exacerbated in the gang context built on hierarchy and violence.
Gender-based motivations may also be relevant in cases of male children as (1) these machista attitudes also direct how society views children as subordinate; and (2) could also lead to persecution of LGBT or perceived to be LGBT children.
The is no positive published caselaw. However, the only cases to consider gender-defined PSGs were not taking into account the specific gender-based motivations.
Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012) (rejecting “women in El Salvador between the ages of 12 and 25 who resisted gang recruitment”)
Mendez Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010) (rejecting PSG “young women recruited by gang members who resist such recruitment” for lack of SD/P)
There may be instances when girls are in relationships with gang members when the ARCG framework will apply
It is worth noting that the BIA has issued several opinions rejecting that ARCG only applies to married women and that it may apply to other sorts of domestic relationships, including nonmarital unions – the court looks to the nature of the relationship (e.g. length/children/sharing home, etc.)
Moreover, the ARCG framework may apply even in cases where a woman/girl was forced into the relationship
Could have one PSG for initial targeting for rape
And, then another PSG once considered in the relationship/property of the gang member
Argue to the court that the “relationship” exists on the man’s terms whether the girl consents or not & that it has hallmarks of DV (e.g. control/jealousy/rape)
Castro-Perez (9th Cir.)
- Honduran woman dating a man who was member of local criminal gang. Man raped her multiple times and she became pregnant. 9th Cir. Doesn’t reach whether belonged to PSG, but says asylum claim fails b/c hasn’t shown government agent committed rapes or gov’t unable/unwilling to control rape in the country.

38. Gender/Gang Successes
However, there are unpublished or analogous cases to rely on:
CGRS Database Cases:
“Salvadoran women who are viewed as gang property by virtue of the fact that they were successfully victimized by gang members once before;”
“single Salvadoran women who are working professionals;”
“Salvadoran women”
“working class, single women in Michoacan”
Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330 (3d Cir. 2008) (women who escaped involuntary servitude after being abducted/confined by FARC)
First, it is well-recognized at this point that gender/sex may be an immutable/fundamental characteristic that defines a social group.
Outside of the intimate partner context, there may be other gendered dimensions to gang violence
For example, rape survivors may carry a certain shame or stigma and this is recognized by the gang and is a shared past experience she cannot change
Moreover, single girls and single mothers, may be targeted by gangs as particularly vulnerable
Gomez-Zuluaga v. Attorney General of US, 527 F.3d 220 (3d Cir. 2008) (held Columbian women who escaped involuntary servitude after being abducted and confined by a guerrilla group qualified as “particular social group”)
Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010) (rejects PSG “young women recruited by gang members who resist such recruitment”)
Rivera Barrientos v. Holder, 658 F.3d 1222 (10th Cir. 2011) (held that El Salvadoran women between ages of 12 and 25 who resisted gang recruitment made up group that could be described with sufficient particularity to meet standard for “particular social group”, but lacks the visibility requirement. Applicant suffered gang rape for refusal to join. Persecution not on account of political opinion)
Caal-Tiul v. Holder, 582 F.3d 92 (1st Cir. 2009) (gang threats to indigenous Guatemalan woman whose daughter either refused to date a gang member or to join. Held: persecution not on account of social group “indigenous women”, but rather part of widespread criminal violence)
Gang violence should not be viewed in a vacuum – it occurs in patriarchal and machista societies that devalue women/girls and treat them as the property of men.
These patriarchal attitudes are reproduced and exacerbated in the gang context built on hierarchy and violence.
Gender-based motivations may also be relevant in cases of male children as (1) these machista attitudes also direct how society views children as subordinate; and (2) could also lead to persecution of LGBT or perceived to be LGBT children.
The is no positive published caselaw. However, the only cases to consider gender-defined PSGs were not taking into account the specific gender-based motivations.
Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012) (rejecting “women in El Salvador between the ages of 12 and 25 who resisted gang recruitment”)
Mendez Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010) (rejecting PSG “young women recruited by gang members who resist such recruitment” for lack of SD/P)
There may be instances when girls are in relationships with gang members when the ARCG framework will apply
It is worth noting that the BIA has issued several opinions rejecting that ARCG only applies to married women and that it may apply to other sorts of domestic relationships, including nonmarital unions – the court looks to the nature of the relationship (e.g. length/children/sharing home, etc.)
Moreover, the ARCG framework may apply even in cases where a woman/girl was forced into the relationship
Could have one PSG for initial targeting for rape
And, then another PSG once considered in the relationship/property of the gang member
Argue to the court that the “relationship” exists on the man’s terms whether the girl consents or not & that it has hallmarks of DV (e.g. control/jealousy/rape)

39. PSG Approach for Gender/Gang Claims
Gangs target women & girls to be girlfriends and sometimes sex slaves.
Nationality + gender + childhood/youth should satisfy the PSG tests. (e.g., El Salvadoran girls/girl children).
Nationality + gender + childhood + lack of parental protection, living in female headed household, or living in a particular neighborhood
See Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010)
Gangs target LGBTQ individuals
Immutability of gender, nationality, childhood, sexual orientation/identity
Social distinction and particularity: look to articles, statistics, surveys about higher rates of violence or discrimination against LGBT and females; policies or programs directed at LGBTs/females
-The more specific the PSG the more likely that expert testimony will be needed to establish particularity. Lay testimony can also establish. E.g. lay testimony that girls who do not have parent caregivers are at particular risk, seen as especially vulnerable, people in the community know who they are, etc.
Case example: How would Clara’s PSG be formulated?

40. Other Grounds in Gang Context
Consider other PSGs:
Family membership
Witnesses
Opposition/refusal to join (but note mixed caselaw)
Consider other grounds:
Political Opinion
Religion
Ethnicity/Race
First, it has been pretty universally accepted that “family or kinship ties” may be an immutable characteristic that can form the basis of a social group. An issue might be around the edges – how attenuated may the family ties be?
Gangs often target nuclear or extended family units, so these claims can be supported by the country conditions.
Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015) (affirms validity of the nuclear family as a PSG and overturns the BIA’s finding that nexus was not proven)
Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir. 2014) (recognizes kinship ties alone may form PSG and expressly allows for mixed-motives, but denies on nexus grounds)
Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (holding “family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses" satisfies Acosta and has requisite SD/P)
See also CGRS Database cases recognizing PSGs of: “male siblings of those murdered by gangs who resist active recruitment efforts by same gang;” “family members of x who actively opposes gangs;” and “immediate relatives of Salvadoran police officers involved in anti-gang efforts”
Challenges remain:
Abarca v. Holder, 757 F.3d 334 (1st Cir. 2014) (rejecting “mothers of individuals who resisted gang membership” as overly broad)
Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (rejecting family members of Salvadoran youth who resist gang membership; just as a PSG based on resisting recruitment fails for being too broad, so too does a PSG based on relationships to those that resist)
Constanza v. Holder, 647 F.3d 749 (8th Cir. 2011) (rejecting “family that experienced gang violence”)
Nexus can also be issue, Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir. 2015) (no nexus to family, holding gang just wanted information given to applicant by brother)
Family member ability to safely remain in home country can defeat claim of WFF, Quinteros v. Holder, 707 F.3d 1006 (8th Cir. 2013), see also Ramirez-Mejia

41. Case Example

42. Hypothetical: Maria
Maria, a 24-year-old woman, was born and raised in a small town outside of Sonsonate, El Salvador. She never attended school and is illiterate; only Maria’s brother received an education.
At age 14, Maria’s neighbor Jose who belonged to the Mara-18 gang, kidnapped Maria, locked her in his sister’s home and raped her. When Maria became pregnant, Jose and her father, a devout Catholic, negotiated to have Maria live with Jose as his wife. Maria did not want to live with Jose but she felt she had no other choice.
From that point on, Jose controlled every aspect of Maria’s life. He treated her like a child and forced her to ask his permission to do even the simplest things such as watch television. Jose was also extremely verbally and physically abusive.
As time went on, Jose started forcing Maria to engage in sexual acts with his “friends” in exchange for money that he used to purchase drugs. At age 23, Maria left Jose and traveled to the U.S.
Despite Jose’s constant abuse, Maria never reported him to the police.
Analysis – DV Case, use ARCG (okay even though not legally married)
Potential shared past experience of being sex trafficked use Cece to frame future fears (can use this to demonstrate circularity pitfall)
Is there a religion angel if this is crafted as forced marriage and Catholic father is forcing her into the marriage?
Can she still succeed in a case even though she didn’t report to the police? Yes, highlight country conditions reports (UNHCR eligibility guidelines El Salvador +CGRS expert witness reports/database) and expert witness to overcome the fact that she didn’t report to the police

43. CGRS Resources

44. Individualized Mentoring
CGRS provides free expert consultation to attorneys and organizations representing asylum seekers in California, across the United States, and internationally – including legal technical assistance, country conditions evidence, expert witness affidavits, model pleadings, and review of briefs or other submissions.
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45. Request assistance and report outcomes in your cases at
CGRS Resources
Practice Advisories
Expert Declarations
Domestic violence
Country-specific on violence against women and children
Children’s asylum
Bars in children’s cases
Topic-specific on domestic violence and incest
Country Conditions Reports
Cover specific topics in individual countries (e.g. violence against women, children, LGBT, gang violence)
Sample Pleadings
Case documents: declarations, indexes, expert declarations
Legal briefs
Unpublished case law
Examination questions
IJ and BIA decisions
CGRS provides assistance and is tracking outcomes in these cases nationally
Have various resources available, request through website
Expert database coming!
Request assistance and report outcomes in your cases at