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The DHS Brief Of April 2009 On "Particular Social Groups"

by David L. Cleveland

Every asylum lawyer should read the brief the Department of Homeland Security [DHS] submitted to the Board of Immigration Appeals on April 13, 2009 in Matter of L-R-.

The 31-page brief, by David A. Martin, Principal Deputy General Counsel of the DHS, supports, in large part, the asylum application of a woman from Mexico who was abused by her domestic partner. The brief states at page 14 that the following could well be a "particular social group" that entitles one to asylum: "Mexican women in domestic relationships who are unable to leave."

Facts

The female respondent, Ms. L-R-, lived in a small town in Mexico with Mr. "X" and had three children with him, They were not married.

When she was pregnant with her first son, she attempted to escape but X found her at a bus stop, hit her, and forced her back into the house. Respondent showed the police her bruises and injuries, "but the police told her that her problems were private and that her life was not in danger." [Brief at 17, quoting from decision of IJ]. X told her that "he could do anything he wanted to her because she belonged to him." [Brief at 15, quoting from decision of IJ].

Her pleas for assistance "were rebuffed by two judges," but a court did grant her custody of two of her children, and a court awarded her use of a home owned by X. [Brief at 26]

Respondent entered the United States in 2004. She did not apply for asylum within one year of her arrival. She testified she learned about asylum in June 2005, and applied for asylum "within months" thereafter.

Respondent argued to the IJ that her particular social group was "Mexican women in an abusive domestic relationship who are unable to leave." [Brief at 5].

Decision of the IJ

The IJ found respondent credible, but denied asylum because she had not applied for asylum within one year of arrival.

The IJ noted that a United Nations Special Rapporteur found that "police and prosecutors are reluctant to take action when they receive a domestic violence complaint." [Brief at 17]. The Department of State found that among the 31 states in Mexico, seven states had not yet criminalized domestic violence, 15 states sanction family violence only when it is a repeated offense, and that "actual sentences are normally lenient.' [Brief at 17-18]

The IJ found that "non-marital relationships do not entail an inability to leave." [Brief at 18, footnote 12]. This suggests that the IJ found that respondent did have the ability to leave X. However, other statements of the IJ indicate respondent was unable to leave. [Brief at 20, footnote 14].

In a decision dated October 15, 2007, the IJ denied respondent's applications for protection, but granted voluntary departure.

Proceedings before the BIA

The parties filed briefs in early 2008. The BIA then requested supplemental briefing, in view of the Attorney General's recent decision in Matter of R-A-, 24 I&N Dec. 629 (A.G. September 28, 2008). The DHS then filed its "Supplemental Brief" on April 13, 2009.

The DHS Supplemental Brief

The respondent in this case, Ms. L-R-, is from Mexico. However, to understand her case, we should look at the case of Ms. Rodi Alvarado, [Ms. "R-A-"], a victim of domestic violence in Guatemala.

An IJ granted the claim of Ms. R-A-, but the BIA denied relief in Matter of R-A-, 22 I&N Dec. 906 (BIA 1999). Attorney General Ashcroft requested additional briefing; the DHS filed a brief positing that a cognizable social group could be defined as "married women in Guatemala who are unable to leave the relationship." [Brief at 4, quoting from the 2004 DHS brief at 26]

Ms. L-R- argued that her particular social group was "Mexican women in an abusive domestic relationship who are unable to leave." [Brief at 5] This group, however, is "impermissibly circular." [Brief at 6]. A particular social group cannot be significantly defined by the persecution suffered. It is wrong to say that "individuals are targeted for persecution because they belong to a group of individuals who are targeted for persecution." [Brief at 6]

The seminal decision is Matter of Acosta, 19 I&N Dec. 211, 232 (BIA 1985), where the BIA stated a particular social group was a group of persons "all of whom share a common, immutable characteristic…[the characteristic] must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences." [Brief at 7-8]

In Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), the BIA "clarified" Matter of Acosta by holding that not all groups sharing an immutable or fundamental characteristic are cognizable; rather, the group must also have "social visibility." [Brief at 8]. Groups must be "generally easily recognizable and understood by others to constitute social groups." [Brief at 8].

In Matter of C-A-, a group of "confidential informants" was deemed to lack visibility. The informant engages in conduct "that is generally out of the public view..[the informant] intends to remain unknown and undiscovered." [Brief at 9]. In contrast, the group "Cameroonian widows" satisfies the social visibility requirement. Ngengwe v. Mukasey, 543 F.3d 1029, 1034 (8th Cir. 2008) [Brief at 9].

The BIA built upon the concepts of "immutability" and "visibility" and explained in Matter of S-E-G-, 24 I&N Dec. 579, 584 (BIA 2008) that a group must have "particularity." [Brief at 9]. "Particularity" means the group must be recognized in society as a "discrete class" of persons. A group that is too "amorphous" lacks particularity. Therefore, male children who lack stable families who refuse recruitment by gangs is a group that is amorphous.

The DHS then repeated its earlier assertion: a particular social group "cannot be significantly defined by the persecution suffered or feared." [Brief at 10] The DHS quoted from a decision of the English House of Lords: Islam v. Secretary of State for the Home Department, and Regina v. Immigration Appeal Tribunal, ex parte Shah [1999] 2. A.C. 629, 640 (House of Lards) (Lord Steyn, noting that 'relying on persecution to prove the existence of the group would involve circular reasoning.')" [Brief at 10].

In the case at bar, the respondent proposed a flawed particular social group before the IJ: "Mexican women in an abusive domestic relationship who are unable to leave." (emphasis added by DHS). [Brief at 10] This proposal is flawed because the common characteristic [abuse] is also the claimed persecution. In Footnote 8 at page 11 of its brief, the DHS stated that such a group may also lack "particularity." The word "abusive" is subjective and thus amorphous.

An alternative formulation

The DHS believes "it is possible" that persons "who have experienced domestic violence could qualify for asylum…" [Brief at 11]. The group set forth before the IJ does not qualify as a particular social group.

"Nevertheless, DHS accepts that in some cases, a victim of domestic violence may be a member of a cognizable particular social group and may be able to show that her abuse was or would be persecution on account of such membership. This does not mean, however, that every victim of domestic violence would be eligible for asylum."

[Brief at 12].

Allowing such claims would not open the floodgates

In Footnote 10 at page 13, the DHS states that "most victims" of domestic violence would not have the resources or ability to get to the United States. Canada has recognized domestic violence claims since at least 1993. That country has not experienced a surge in such cases. In fact, there has been a downward trend. In 1995, there were 315 gender cases; in 1996, there were 270; in 1999, there were just 175.

Furthermore, the US-CIS has granted asylum to victims of domestic violence "under the DHS interpretation advanced in the DHS brief submitted to the Attorney General in Matter of R-A- in 2004… and this has not resulted in any notable increase in claims." [Brief at 13, footnote 10]. There were about 28, 000 asylum applications submitted in FY 2004 and less than 26,000 in FY 2008. The DHS says the overall number of asylum applications has "remained steady over the last five years;" [Id.].

What Mr. X, the persecutor, and society "believe" is important

"The evidence in this case at least raises the possibility that [X] believes that women should occupy a subordinate position within a domestic relationship and that, in his eyes, the female respondent remains in this subordinate position in the relationship even though she has physically separated from [X]. The evidence further suggests that [X] believes that abuse of women within such a relationship can therefore be tolerated, and that social expectations in Mexico reinforce this view."

[Brief at 14].

In light of this evidence, a proper group could be "Mexican women in domestic relationships who are unable to leave" or as "Mexican women who are viewed as property by virtue of their positions within a domestic relationship." [Brief at 14].

What is the specific characteristic that the persecutor targets in choosing his victim?

In this case, X abused respondent "because of his perception of the subordinate status she occupies within that domestic relationship." [Brief at 15]. X told respondent that "he could do anything he wanted to her because she belonged to him." [Brief at 15, quoting from the IJ].

X believes that he may abuse respondent "without interference or reprisal." [Brief at 15]. "Social expectations" in Mexico "bolster" that belief. [Brief at 15].

The nuclear family is a particular social group, says the DHS

The nuclear family can be a particular social group. "U.S. jurisprudence has interpreted the Board's holding in Matter of Acosta as recognizing family as a particular social group." [Brief at 16, Footnote 11]. The First, Seventh, and Ninth Circuits have so held: Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993); Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997); Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986). [Id.]

Other comments of the DHS

Members of a particular social group "must share a common immutable or fundamental trait, must be socially distinct or 'visible,' and must be defined with sufficient particularity to allow reliable determinations about who comes within the group definition." [Brief at 16]

There are circumstances in which an applicant's status within a domestic relationship is "immutable." There might be "economic, social, physical or other constraints [which] made it impossible for the applicant to leave the relationship during the period when the persecution was inflicted. It could also be the case in a claim that involves a fear of future persecution on return to the home country if the abuser would not recognize a divorce or separation as ending the abuser's right to abuse the victim." [Brief at 16]

A valid particular social group "must reflect social perceptions or distinctions (i.e. be 'visible"). [Brief at 17] A group "must be defined with sufficient particularity that it clearly delineates who is in the group." [Brief at 18].

The term "domestic relationship" could be defined using the individuals specified in § 237(a)(2)(E)(I) of the INA. This section defines "crime of domestic violence" to include offenses committed by a current or former spouse, a person with whom the person shares a child in common, or a person cohabitating with another as a spouse. [Brief at 19]

A victim's inability to leave a domestic relationship is not always easy to assess. However, this can be determined by a "fact-specific examination" of the particular case. [Brief at 20]. In some cases, "the persecutor's perception that his victim cannot leave the relationship can play a central role in that persecutor's choice of the domestic partner as his victim." [Brief at 21].

Respondent has not demonstrated that the Mexican government is unwilling or unable to protect her

The police in one small town in Mexico ignored her complaints, but a court did grant her some relief. [Brief at 26] "No country, not even the United States, can provide complete protection to targets of violence at all times and in all cases." [Brief at 27] Remand is necessary for more evidence.

The evidence suggests that respondent could avoid future harm by relocating within Mexico

Mexico is a vast country composed of thirty-one states and a federal district. X may have friends of influence in his own small town, but maybe not elsewhere. Maybe X would not hunt respondent down if she moved to a remote place in Mexico. [Brief at 28]. Remand is necessary for more evidence.

Remand is warranted

Respondent has failed to articulate a cognizable particular social group. The evidence of record is insufficient in many areas. Nonetheless, "owing to the unique complexities in this area of law" a remand is warranted to allow respondent to refine her claims and evidence. [Brief at 29]

Comments of the author

1. DHS should be praised.

The DHS could have urged the Board to affirm the IJ and deport respondent. Instead, however, the DHS affirmatively offered friendly advice to respondent, and urged remand to give her a second chance. The DHS is seeking justice, not just deportation. The DHS should be thanked for recognizing that "immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removal at any cost. Rather, as has been said, the government wins when justice is done.' In re S-M-J-, 21 I&N Dec. 722, 727 (BIA 1997). Government counsel should only be interested in the law being observed, not in victory or defeat. Reid v. INS, 949 F.2d 287 (9th Cir. 1991).

Tell the Assistant Chief Counsel in court with you that she should emulate David A. Martin. She should seek justice, not just deportation at any cost.

I believe that many Assistant Chief Counsels who appear in our Immigration Courts have not read the DHS brief or do not care about it. Others do not consider themselves bound by it. Therefore, it is our job to educate them and the IJs. Photocopy the brief and give it to them. It is available as AILA document 09071664. On the homepage of the Center for Gender and Refugee Studies, click on "DHS brief on L-R-". It is available at http://cgrs.uchastings.edu/pdfs/Redacted%20DHS%20brief%20on%20PSG.pdf

2. Quote the words of the abuser.

The IJ and the DHS quoted the words of Mr. X. From those words, we can determine his beliefs. Ask your client, "What did the abuser say to you? What did he say to other people?"

3. Prove your client could not live elsewhere in the country.

4. Prove the government did not protect your client, after she complained.

5. Cite law from other countries.

The DHS cited a case from the House of Lords, as well as statistics from Canada. We as lawyers should also be "international" in our research. The Refugee Review Tribunal of Australia has useful cases.

6. Ms. L-R- is not really very "visible."

The DHS approves of "Mexican women in domestic relationships who are unable to leave" as a cognizable social group. What is a "domestic relationship" and how does society know if a woman is in one or not? What does "unable to leave" mean? How does society know if a woman can or cannot leave? The DHS does not clearly answer these issues.

7. Does size matter?

How many women are in the group "Mexican women in domestic relationships who are unable to leave"?

Mexico is about two million square kilometers, making it the 22nd largest country in the world. It is about three times the size of Texas. Population is about 110 million, making it the 12th most populous in the world. Mexico has more women than men. Perhaps there are 60 million females there. How many of them are in "domestic relationships"? The DHs brief is silent. How many of the women in domestic relationships are "unable" to leave? The DHs brief is silent.

Is Ms. L-R- in a particular social group which numbers several million? Or, is she in a group which numbers exactly one?

X abused Ms. L-R-. There is no evidence that he abused anyone else. If Mr. A abused Ms. B in Mexico City, far from the small town where X and Ms. L-R- lived, so what? To what extent does X know or care about that?

8. Ms. L-R- is also a member of another particular social group: "Mexican women who fled from a domestic relationship."

For a time, she was in a relationship she was "unable to leave." That is particular social group #1. Then, she did leave; she fled. So, now she is in particular social group #2: "women who have fled from a domestic relationship." She may fail in her claim that she deserves asylum as a result of her membership in group #1; regardless, she may assert an additional claim: "she has a well-founded fear of future persecution as a result of being a member of group #2."

The Third Circuit has recognized that a woman was a member of three different particular social groups: 1] women who dated police officers; 2] dental hygiene students; and 3] "women who escaped involuntary servitude after being abducted and confined." Gomez-Zuluaga v. Mukasey, 527 F.3d 330 (3rd Cir. 2008).

Ask your client if she is a member of more than one particular social group.


About The Author

David L. Cleveland a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 28 different countries.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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