No IN THE SUPREME COURT OF UNITED STATES SPRING TERM VIVIANE SALA, Petitioner, United States of America Respondent.

Transcription

1 No IN THE SUPREME COURT OF UNITED STATES SPRING TERM 2017 VIVIANE SALA, Petitioner, v. United States of America Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR PETITIONER Team McAllister Street San Francisco, CA Counsel for PETITIONER i

2 QUESTIONS PRESENTED I. Whether a nexus exists between Sala s alleged persecution and a protected ground; and II. Whether substantial evidence supports a finding that the San Martino Government was unwilling or unable to protect Sala. Assuming a finding that the San Martino Government was unwilling or unable to protect Sala, does substantial evidence support a finding of reasonable relocation within San Martino? i

3 TABLE OF CONTENTS Page(s) QUESTIONS PRESENTED... TABLE OF CONTENTS... TABLE OF AUTHORITIES... i ii iv STATEMENT OF THE CASE... 1 Statement of Facts... 1 Procedural History... 3 SUMMARY OF ARGUMENT... 3 ARGUMENT... 5 I. A NEXUS EXISTS BETWEEN SALA S PERSECUTION AND HER STATUS AS TRANSGENDER, AND THE APPELLATE COURT ERRED AS A MATTER OF LAW IN WEIGHING SALA S TESTIMONY AS EVIDENCE TO ESTABLISH THE NEXUS... 5 A. The Appellate Court Erred as a Matter of Law When They Did Not Properly Weigh Sala s Testimony, Which Would Have Established a Nexus Between Her Persecution and Her Status as a Transgendered Individual B. Sala s Testimony Shows That She Has a Well-Founded Fear That She Will Face Persecution as a Transgendered Individual and Not as a Sex Worker, if Forced to Return to San Martino, Thus Establishing a Nexus In a mixed motive case such as this one, Sala only needs to show that her transgenderism was one central reason for her persecution to establish a nexus The three incidents combined with Sala s testimony is sufficient evidence to establish Sala s transgenderism was one central reason for her persecution, which establishes a nexus ii

4 TABLE OF CONTENTS (CONT.) II. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT A FINDING OF SAFE RELOCATION WITHIN SAN MARTINO A. The Source of the Persecution is ACCE, a Group that the Government Cannot Control There is substantial evidence that the ACCE was involved There is substantial evidence that the ACCE is a group that the San Martino Government is unable to control B. There Has Been a Finding of Past Persecution, Therefore Giving Rise to the Rebuttable Presumption That Sala s Life or Freedom Would be Threatened Upon Return to San Martino C. The San Martino Government has Failed to Rebut by the Preponderance of the Evidence the Presumption That Sala s Safety Would be Threatened Upon her Return to San Martino The 2013 San Martino report does not show that there has been a fundamental change in conditions in San Martino since Sala s persecution Sala s relocation, although reasonable, would likely be unsafe for her i. Potential for Sala s relocation is reasonable.... ii. Sala s failure to report the attacks does not show that the San Martino Government is able to protect her CONCLUSION iii

5 TABLE OF AUTHORITIES Cases Page(s) SUPREME COURT OF THE UNITED STATES INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)... 5, 8 I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992) UNITED STATES COURT OF APPEALS Archarya v. Holder, 761 F.3d 289 (2nd Cir. 2014)... 8 Afriyie v. Holder, 613 F.3d 924 (9th Cir. 2010) Avetovo-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000)... 15, 16, 17, 19 Baballah v. Ashcroft, 367 F. 3d 1067 (9th Cir. 2004)... 8, 12 Bi Xia Qu v. Holder, 618 F.3d 602 (6th Cir. 2010) Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005)... 22, 25, 26 Castellano-Chacon v. I.N.S., 341 F. 3d 533 (6th Cir. 2003)... 5 Dallakoti v. Holder, 619 F.3d 1264 (10th Cir. 2010) De La Rosa v. Holder, 598 F.3d 103 (2nd Cir. 2010) iv

6 TABLE OF AUTHORITIES (CONT.) Page(s) Dieng v. Holder, 698 F.3d 866 (6th Cir. 2012) Faddoul v. I.N.S., 37 F.3d 185 (5th Cir. 1994)... 21, 22 Galin v. I.N.S., 213 F.3d 955 (7th Cir. 2000)... 23, 24 Hernandez-Barrera v. Ashcroft, 373 F.3d 9 (1st Cir. 2004) Manzoor v. United States DOJ, 254 F.3d 342 (1st Cir. 2001) Menghesha v. Gonzalez, 450 F.3d 142 (4th Cir. 2006) Mgoian v. INS, 184 F. 3d 1029 (9th Cir. 1999)... 7 Mohideen v. Gonzalez, 416 F.3d 567 (7th Cir. 2005) Nako v. Holder, 611 F.3d 45 (1st Cir. 2010) Ngengwe v. Mukasey, 543 F.3d 1029 (8th Cir. 2008) N.L.A. v. Holder, 744 F.3d 425 (7th Cir. 2014) Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009)... 9, 11 Rebollo-Jovel, 794 F.2d 441 (9th Cir. 1986)... 7 v

7 TABLE OF AUTHORITIES (CONT.) Page(s) Rodriguez-Rivera v. INS, 848 F.2d 998 (9th Cir. 1988)... 7 Salkeld v. Gonzales, 420 F.3d 804 (8th Cir. 2005)... 20, 21 Secaida-Rosales v. INS, 331 F.3d 297 (9th Cir. 1998)... 6 Velasquez-Velasquez v. INS, 53 F. App x 359 (6th Cir. 2002)... 9 Yang v. United States AG, 418 F. 3d 1198 (11th Cir. 2005)... 7 Zakirov v. Ashcroft, 384 F.3d 541 (8th Cir. 2004) Agency Decisions BOARD OF IMMIGRATION APPEALS CASES In re Tobaso-Alfondo, 20 I&N Dec. 819 (BIA 1990)... 9 In Re J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007) Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) Matter of Kasinga, 21 Int. Dec. 365 (BIA 1996) , 22 Federal Statutes 8 C.F.R (2017) C.F.R (2017)... 15, 22 vi

8 TABLE OF AUTHORITIES (CONT.) Page(s) 8 C.F.R (2017)... 15, 16, 22, 14 8 U.S.C.S 1101 (2017) U.S.C.S (2017)... 7, 11, 13, 14 8 U.S.C.S (2017) U.S.C. 1252(b)(4)(B) (2017)... 6, 16, 19 8 U.S.C.S. 1252(b)(4)(D) (2017)... 5 LAW JOURNALS Fatima Mohyuddin, United States Asylum Law in the Context of Sexual Orientation and Gender Identity: Justice for the Transgendered? 12 Hastings Women s L.J. 387 (2001)... 9 vii

9 No IN THE SUPREME COURT OF UNITED STATES MARCH TERM 2017 VIVIANE SALA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR PETITIONER viii

10 OPINION BELOW The opinion of the United States Court of Appeals for the Fourteenth Circuit is unreported but may be found on pages 5-23 of the Record. JURISDICTIONAL STATEMENT A statement of jurisdiction has been omitted in accordance with the rules of the U.C. Davis School of Law Asylum and Refugee National Moot Court Competition STATEMENT OF THE CASE Statement of the Facts San Martino is a small South American nation of approximately 50,000 square kilometers and home to around 5,000,000 people. (R. 5.) The nation s two largest cities are the Capital Paraisa and a slightly smaller city, Juarez. (R. 5.) Most of the population lives in these two cities with the rest living throughout the rural country side. (R. 5.) San Martino has some progressive policies such as the decriminalization of sex work and the renunciation of state sponsored religion. However, a white nationalist Christian identity group known as the Alianza de Colonos Cristianos Europeos (hereafter, ACCE ) arose. (R. 5.) The ACCE is backed by a growing conservative sentiment and the group believes that white culture is under assault and that multiculturalism leads to genocide of the white race. (R. 5.) The ACCE follows a strict sect of Christianity that believes in traditional gender, sexual, and familial norms. (R. 5.) For example, inter-racial marriage, homosexuality, women working outside the home, and intercourse before marriage are considered grave sins to the ACCE and the ACCE vowed to fight against such progressive policies that are counter to their beliefs. (R. 5.) The ACCE also holds anti-trans sentiment as a core tenet. (R. 9.) The ACCE grew in infamy as well as violence by murdering sex workers and trans gendered individuals. (R. 6.) The ACCE is notorious for 1

11 targeting trans women and the majority of the ACCE s victims are trans women. (R. 9.) The San Martino Government eventually responded to and criminalized the ACCE activity. (R. 6.) However, in recent years, the ACCE has undergone a resurgence. (R. 6.) Viviane Sala, ( Sala ) the Petitioner, fled from San Martino to the United States to find refuge from a society she no longer felt safe in. (R. 6.) Sala fled as a result of several acts that occurred to her within a four month period on account of her transgender identity. (R. 6-7.) Sala s persecution began in the summer of (R. 7.) During the first week of June, Sala was walking with other sex workers, when a man threw an improvised tear gas explosive at the group while yelling some male-gendered slurs. (R. 7.) The man was a middle-aged, Western European male. (R. 7.) Fortunately the women suffered only minimal injuries, but they did not report the crime as they felt the police would fail to catch the assailant and were afraid of potential retaliation. (R. 8.) A week after the attack, Televisión San Martino ( TVSM ) conducted an extensive expose on sex workers in the country to lead discussion on the possible ACCE reemergence. (R. 8.) The country tuned in en masse. (R. 8.) Sala was prominently featured in an interview that noted she was the only trans woman in her town. (R. 8.) Sala spoke openly of her transgender status during the interview. (R. 8.) Less than a week after the expose an unknown individual or unknown individuals vandalized Sala s home with graffiti, which included male-gendered slurs. (R. 8.) Fearing further retaliation, Sala s housemates cleaned the graffiti and refused to report. (R. 8.) Sala believed the TVSM expose may have led to the attack. (R. 8.) Roughly a month later a man assaulted Sala. (R. 8.) Sala initially believed the man was a customer, but once they were alone, the man beat Sala. (R. 8.) The man had a Celtic cross 2

12 tattoo on his forearm and yelled similar male-gendered slurs to those in the previous incidents. (R. 9.) Sala no longer felt safe in San Martino and believed that the worst was yet to come. (R. 9.) Sala again did not report these crimes because of fear of retaliation and her housemates reluctance to report the previous incidents. (R. 9.) Both Petitioner and Respondent in this case have stipulated that the cumulative effect of the harms from all three incidents were sufficiently serve to constitute persecution. (R. 10.) Procedural History Vivienne Sala ( Sala ) entered the U.S. illegally in early Local police in Sacramento, California detained her after she was involved in an immigration protest. In response to the Department of Homeland Security s attempt to charge her with removability, Sala requested Asylum. The Immigration Judge ( IJ ) denied Sala s application for Asylum. On appeal the Board of Immigration Appeals ( BIA ) summarily affirmed the IJ s decision without opinion, subjecting the decision to review in the United States Court of Appeals for the Fourteenth Circuit, who affirmed the BIA s decision. SUMMARY OF ARGUMENT Despite required deference to the Appellate court, which is decreased due to the fact that questions of law and fact arise here, this Court should reverse the Appellate court s decision. That court gave insufficient rationale for their legal conclusions and the facts in the Appellate court heavily support a finding of asylum. To establish asylum, Sala must show that a nexus existed between her transgender status and her persecution. Sala s attackers directed male-gendered slurs at a Sala who is both female identifying and passing. Furthermore, the latter attacks occurred after an exposé of Sala s trans identity. These among other facts strongly suggest that her trans identity was the nexus of the 3

13 attacks. For granting asylum it must also be shown that the foreign government or a group that the government cannot control was responsible for the persecution. There are many strong indications that the ACCE was involved including an attacker s white supremacist tattoo. Furthermore, the closeness in time of the attacks and the repeated use of similar slurs suggests that the attacks were coordinated by an organized group such as the ACCE. To establish asylum, Sala must also show that her life or freedom would be threatened upon return to San Martino. A rebuttable presumption that her life or freedom would be threatened upon return to San Martino arises where past persecution is established. Respondent has conceded that the attacks on Sala constitute past persecution and this issue is no longer on appeal, therefore giving rise to the presumption that Sala s life or freedom would be threatened upon return. The only means for rebutting the presumption that Sala s life or freedom would be threatened upon return to San Martino are: first, showing that there has been a significant change in conditions there so that the fear is no longer well-founded, or, second, showing that Sala can be reasonably and safely located within San Martino. Respondent has not met this burden. Respondent cannot show that there has been a significant change in San Martino so that the fear of harm is no longer well-founded because it has proffered no evidence of a change in conditions in San Martino since the attacks. Although the United States Government proffered the San Martino report of 2013, the attacks occurred in 2014 after 2013, therefore this report cannot speak to conditions since the attacks as the legal standard requires. Respondent s only recourse would be to rebut the presumption that Sala s life or freedom would be threatened upon return to San Martino by showing that reasonable and safe relocation is possible. Although reasonable relocation in the Capital is possible, Sala s safety from ACCE repeat attackers would be at risk if they were able to locate her in the Capital of the small country. Locating her would be fairly 4

14 simple considering that the ACCE is a large covert group with presence throughout the country and because Sala is a nationally recognized face after her expose. Because no safe relocation is possible, Sala should be granted asylum. ARGUMENT I. A NEXUS EXISTS BETWEEN SALA S PERSECUTION AND HER STATUS AS TRANSGENDER, AND THE APPELLATE COURT ERRED AS A MATTER OF LAW IN WEIGHING SALA S TESTIMONY AS EVIDENCE TO ESTABLISH THE NEXUS. The Court is not required to uphold a BIA decision unless it is manifestly contrary to law. Castellano-Chacon v. I.N.S., 341 F. 3d 533, 545 (6th Cir. 2003) (overruled by statute on other grounds). The persecution or well founded fear of persecution standard governs the Attorney General s determination whether an alien is eligible for asylum. INS v. Cardoza- Fonseca, 480 U.S. 421, 428 (1987). An alien does not need to prove that persecution is more likely than not to occur, rather they must show a well-founded fear of persecution. Id. at 449. This standard of review has since been codified in 8 U.S.C.S. Section 1252(b)(4)(D), which states that the Attorney General s discretionary judgment whether to grant relief under section 208(a) shall be conclusive unless manifestly contrary to the law and an abuse of discretion. Petitioner asserts that the former has occurred as the findings by the Appellate court was manifestly contrary to the law when they found that no nexus existed between the persecution and Sala s status as a transgender. Specifically, the Appellate court erred as a matter of law when they did not give enough weight to Sala s testimony, particularly her belief that she was persecuted as transgender. It is important to note first that (1) the parties stipulated that all three incidents constituted persecution (R. 10.); (2) the IJ found Sala was a credible witness (R. 10.); and (3) the appellate court and most, if not all, federal courts recognize status as a transgender person as a protected 5

15 ground. (R. 13.) The real issue on appeal concerning the nexus is whether there was sufficient evidence to show that Sala s persecution was based on her status as a transgender. (R. 11.) Petitioner contends that there was had the Appellate court given proper weight to Sala s testimony, particularly her belief, and the Appellate court erred as a matter of law in their interpretation of the change in the INA s language to one central reason in determining mixed motive persecution cases. A. The Appellate Court Erred as a Matter of Law When They Did Not Properly Weigh Sala s Testimony, Which Would Have Established a Nexus Between Her Persecution and Her Status as a Transgendered Individual. When a BIA or IJ decision is on appeal, factual findings are under the substantial evidence standard and the finding will stand if it is supported by reasonable, substantial, and probative evidence when taken as a whole. Secaida-Rosales v. INS, 331 F.3d 297, (9th Cir. 1998). However, when review involves mixed questions of law and fact, the standard of review is far less deferential. Id. at 307 (quoting Diallo, 232 F.3d 279, 287). Therefore, if an issue on appeal involves the proper application of legal principles to the facts and circumstances of the individual at hand, then the review is de novo. Secaida-Rosales, 331 F.3d at 307. Additionally, the BIA s determination findings are not conclusive if any reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C.S. 1252(b)(4)(B). The facts and legal principles in Sala s case do intersect, therefore under a de novo review, should be applied in reviewing the facts and legal principles of the case, which would have sufficiently established a nexus. The Petitioner does not contend that the IJ erred in their fact-finding; rather the Petitioner contends error in the application of the law and facts together by the Appellate court. The IJ determined that Sala was a credible witness (R. 10.) and the record shows no indications of how or why Sala would be deceitful. Yet, the Appellate court, in 6

16 finding against Sala, makes no mention of her testimony about the growing ACCE presence nor do they believe her claim that the persecution is because of her status as a transgendered individual. Thus, the Appellate court did not weigh Sala s testimony properly and erred as a matter of law when finding against her. 8 CFR subsection (a), which outlines the procedures for asylum and withholding of removal, states: [t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. Additionally, it is the duty of the fact finder to determine credibility, and we may not substitute our judgment for that of the IJ with respect to credibility findings. Yang v. United States AG, 418 F. 3d 1198, 1201 (11th Cir. 2005). Therefore, it is relevant to note that when the IJ determined that Sala was a credible witness and her accounts should be greatly considered. The Secretary of Homeland Security or the Attorney General may grant asylum to an applicant if the applicant is a refugee within the meaning of 8 U.S.C.S 1101(a)(42)(A), better known as the Immigration and Naturalization Act (hereafter, INA ). 8 U.S.C.S. 1158(b)(1)(A). Moreover, the definition of a refugee is a person who is unable to return to his or her county because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group. 8 U.S.C.S. 1101(a)(42)(A) (emphasis added). The test for well-founded fear of persecution has two parts: whether the applicant is (1) subjectively genuine and (2) objectively reasonable. Mgoian v. INS, 184 F. 3d 1029, 1035 (9th Cir. 1999). The subjective part is a low standard that simply requires that the fear be genuine. Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir. 1988). The more difficult is the objective part, which requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces 7

17 persecution. Id., quoting Rebollo-Jovel, 794 F.2d 441, 443 (9th Cir. 1986). However, the objective standard is not a more likely than not standard. INS v. Cardoza-Fonseca, 480 U.S. 421, 438 (1987). In fact, this Court has stated before that there would be no room in the United Nations definition for concluding that because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, that he or she ahs no well-founded fear. Id. at 440. In granting petitions for review in cases in which the agency erred by failing to consider multiple bases for persecution, we have also noted that such legal errors are accompanied by factual misstatements, mischaracterizations of the record, or failure to acknowledge pertinent record evidence. Archarya v. Holder, 761 F.3d 289, 299 (2nd Cir. 2014). As there are no issues with Sala s credibility, she satisfies the subjective part because she genuinely believes that she will face persecution if returned to San Martino. The objective part of the test is the only one at issue, which can be proven through Sala s testimony and the evidence in the record. Taking into account that Sala is a credible witness, there is sufficient evidence to show that her persecution was based on her status as a transgendered individual rather than a sex work. Sala s testimony that there is a growing ACCE presence, the tattoo of her assailant 1 in the third attack, and her well-known status as a transgender, makes an objective showing that she has a well-founded fear of persecution based on her status as a transgendered individual rather than her occupation as a sex worker. A. Sala s Testimony Combined With the Evidence in the Record Show That She Has a Well-Founded Fear That She Will Face Persecution as a Transgendered Individual and Not as a Sex Worker, if Forced to Return to San Martino, Thus Establishing a Nexus. In mixed motivation cases, applicants are required to only provide some evidence of motive. Baballah v. Ashcroft, 367 F. 3d 1067, 1077 (9th Cir. 2004), citing Elias-Zacarias, The tattoo of her assailaint was a Celtic cross, which is ubiquitously known as a symbol for white supremacy, which is a tenant of ACCE. (R. 21, 5.) 8

18 U.S. at 483. In fact, uncontroverted and credible testimony alone is sufficient in establishing the grounds in which an applicant was persecuted. Id. As it is difficult, and sometimes impossible to provide direct proof of a persecutor s motives, an applicant only need provide some evidence either direct or circumstantial. Id. Here, Sala s testimony shows ample evidence of her persecution as a transgendered individual, which establishes a nexus between her transgender status and the persecution. The analysis to establish asylum requires first that an applicant prove they are a refugee under the INA. Velasquez-Velasquez v. INS, 53 F. App x 359, 362 (6th Cir. 2002). To establish they are a refugee, the applicant must show that the harms suffered rises to the level of persecution and the persecution occurred because of a protected ground. Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009). The record below shows that there is no contention that Sala s attacks rose to the level of persecution (R. 10) and transgenderism is a protected ground. (R. 13.) Although the Appellate conceded that transgenderism is a protected ground, it is important to review such a finding because it is reviewed de novo. See Hernandez- Montiel v. I.N.S., 225 F.3d 1084, 1091 (9th Cir. 2000). In 1994 the Attorney General Janet Reno issued an order to declare the decision of In re Tobaso-Alfondo, 20 I&N Dec. 819, 820 (BIA 1990) as precedential, which meant that sexual orientation qualifies as membership in a particular social group. Fatima Mohyuddin, United States Asylum Law in the Context of Sexual Orientation and Gender Identity: Justice for the Transgendered? 12 Hastings Women s L.J. 387, 400. This extension of the ruling to transgenderism by the Appellate court is also consistent with other asylum applications. Id. at (discussing four asylum applicants who granted asylum based on their transgender status). Therefore, transgenderism is a protected ground and the only issue on appeal is whether Sala s persecution occurred on a protected ground, which would establish a nexus. Thus, the sole inquiry is whether there is sufficient evidence in the record that 9

19 shows the attacks on Sala was because of her transgenderism and not occupation. Petitioner contends that if the Appellate court had given Sala s testimony the proper weight and the proper standard for one central reason was applied, the evidence proves that Sala s persecution was on a protected ground. 1. In a mixed motive case such as this one, Sala only needs to show that her transgenderism was one central reason for her persecution to establish a nexus. Under the INA s mixed-motive standard, the asylum applicant only needs to show that the alleged persecutor is motivated in part to persecute her on account of a protected ground. Menghesha v. Gonzalez, 450 F.3d 142, 148 (4th Cir. 2006). In Menghesha, the applicant sought asylum in the United States from Ethiopia. Id. at 144. The applicant sought asylum because the government discovered that he aided in helping anti-government protestors thwart arrest. Id. The applicant then sought asylum under the INA because he feared he would suffer arrest, imprisonment, and torture based on his political opinion, a protected ground. Id. However, the IJ denied the application because the Ethiopian Government had claims against the applicant for obstruction of justice and the BIA affirmed without opinion. Id. The Fourth Circuit Court of Appeals found that the IJ committed legal and possible factual error when the IJ held the applicant to an overly stringent legal standard: proving that political persecution was the Government s sole motive. Id. at 147. In finding the IJ s error, the Fourth Circuit recognized that persecutors often have multiple motives for punishing an asylum applicant and that the INA requires the applicant to only prove that one of those motives is prohibited under the INA. Id. at 148; see also Mohideen v. Gonzalez, 416 F.3d 567, 570 (7th Cir. 2005). The court then held that in mixed-motive cases that the applicant only need to show that the alleged persecutor is motivated in part because of protected ground. Menghesha, 450 F.3d at

20 However, the standard of in part in 8 U.S.C.S. 1158(b)(1)(B)(i) has been changed to one central reason, which has caused a circuit split in interpreting what the standard is now. Some circuits such as the Tenth Circuit has interpreted the standard to mean that it cannot be incidental, tangential, superficial, or subordinate to another reason for harm. Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010). However, other circuits such as the Ninth Circuit have interpreted one central reason to mean that the protected ground was an essential cause without a determination of which reason was more dominant. Parussimova v. Mukasey, 555 F.3d at 741. The Second Circuit also agrees as it would create an overly stringent legal standard. Acharya v. Holder, 761 F.3d at 299. The Second Circuit concluded it would be overly stringent because it would lead to IJs rejecting asylum applications simply based on an IJ s opinion that there was a more likely possible basis for persecution, which the possibility of multiple motives for persecution logically precludes. Id. Here, the Petitioner contends that there was sufficient evidence to show that Sala s persecution was one central reason as to her persecution based on either interpretation of 8 U.S.C.S. 1158(b)(1)(B)(i). 2. The three incidents combined with Sala s testimony is sufficient evidence to establish Sala s transgenderism was one central reason for her persecution, which establishes a nexus. There are three incidents of persecution at issue here, which Petitioner contends was based on Sala s transgender status versus her occupation as a sex worker. In the first encounter, Sala was in a group that consisted entirely of women and tear gas was thrown, but the assailant used male-gendered words. (R. 7-8.) However, Sala could confidently describe the assailant as a middle-aged, Western European male (R. 7), which is the target audience of the ACCE. (R. 5.) While this alone may not establish a nexus, it still adds to Sala s claim that her persecution was 11

21 based on her transgenderism and the BIA s decision must be upheld only when the evidence on the record is considered as a whole. Baballah, 367 F.3d at The second attack was preceded by a television expose by a state-run public media organization. (R. 8.) In this expose, TVSM interviewed Sala who spoke openly of her transgender status which the nation tuned in en masse. (R. 8.) Additionally, it was noted that Sala was the only trans woman in her small town and there was a possible reemergence of ACCE. (R. 8.) Less than a week after the expose, Sala s home was vandalized by graffiti that included violence and male-gendered slurs. (R. 8.) The short proximity between the TVSM expose and the male-gendered slurs is further evidence that helps establish a nexus between Sala s transgender status and the persecution. Again, neither party contends that these actions do not constitute persecution, rather if it was based on Sala as a trans woman or as a sex worker. Petitioner argues that it was based on her status as a trans woman because they included male slurs with threats of violence very shortly after a nationally televised expose on Sala, the only trans woman in her town. Again, applicants only need to prove some evidence of motive either direct or circumstantial. Baballah v. Ashcroft, 367 F.3d at Therefore, the fact that there are other alternative reasons such as her occupation as a sex worker does not preclude her from claiming persecution on a protected ground. Acharya, 761 F.3d at 299. Applying the Second Circuit s interpretation of the INA, it is improper for an IJ to consider that just because there is a more likely possible basis of persecution means that the applicant cannot meet the qualifications of a refugee. Id. Finally, a Western European male bearing a Celtic cross tattoo on his forearm assaulted Sala while yelling male-gendered slurs. (R. 9.) This substantiates Sala s claims that her persecution was on the grounds of her transgender status because a Celtic cross is a symbol of 12

22 white supremacy. (R. 21.) White supremacy and discrimination against transgendered individuals are all tenants of the ACCE (R. 5.), which is important as Sala believes ACCE to be behind these attacks. (R. 9.) As her credibility is not in question, Sala testified to the fact that ACCE directly targets trans women and at the peak of their power disproportionately attacked trans women and holds anti-trans sentiment as a core tenet. (R. 9.) Furthermore, Sala testified that ACCE activity began to spike. (R. 9.) Taking these facts into account, Sala s transgenderism is one central reason based on the interpretation of 8 U.S.C.S. 1158(b)(1)(B)(i). The male-gendered hate speech is evidence that the perpetrators of the crime knew that Sala was a transgendered individual. This claim is bolstered by the fact that Sala is the only transgender in the small town. (R. 8.) ACCE, also holds anti-trans sentiment as a core tenet. (R. 9.) Furthermore, someone with a known white supremacist tattoo assaulted Sala and yelled the same male-gendered slurs from previous incidents during the assault. (R. 9.) Applying the Second and Ninth Circuits similar standard, Sala s transgenderism should be considered a central reason for the attacks because of the malegendered slurs in each incident and the fact that Sala is the only transgendered individual in her small town. The more stringent BIA standard for one central reason is that the applicant must show that the reason for the persecution is not subordinate to others. In Re J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007). However, the record still shows that Sala satisfies such a stringent standard. First, the male-gendered slurs accompanied each of the attacks. Second, the TVSM interview, which highlighted Sala, was followed shortly by another attack. Third, her assailant had a tattoo of a ubiquitous white supremacy icon, a tenet of the ACCE. Additionally, Sala, who the IJ determined is a credible witness, believes that the ACCE, which is notorious for victimizing trans women, is the culprit. Therefore, Sala s transgenderism was at least one, if not 13

23 the, central reason for her persecution, which evidence points to that she had a well-founded fear of, thus establishing a nexus between Sala s persecution and the protected ground of transgenderism. 3. The language of one central reason in 8 U.S.C.S. 1158(b)(1)(B)(i) should not and does not mean the only reason. While Petitioner believes that the evidence shows that Sala was persecuted based on her transgenderism from both the standards, Petitioner urges that this Court adopt the Second and Ninth Circuits interpretation of 8 U.S.C.S. 1158(b)(1)(B)(i). The BIA s interpretation is that persecution cannot be incidental, tangential, superficial, or subordinate to another reason for harm. In Re J-B-N- & S-M-, 24 I. & N. Dec. at 214. The latter of the reasons essentially means that persecution may be established on only one ground, which would ignore the realities of persecution. The reality is that persecution may be on multiple grounds. Subordination to another reason for harm to deny an application would essentially interpret the at least one central reason part of the statute to read the one central reason. The Second Circuit recognized that in Acharya and the Ninth Circuit recognized that in Parussimova. The Ninth Circuit interprets one central reason to mean that the persecution on a protected ground be a cause of the persecutors acts. Parussimova, 555 F.3d 734, 741. Petitioner urges the Court to apply such a standard in subsequent cases as this would respect legislative intent and confront the realities of asylum applicants. This respects legislative intent as Congress clearly meant to increase the burden of proof for an asylum applicant when amending 8 U.S.C.S. 1158(b)(1)(B)(i) from in part to at least one central reason. Additionally, this confronts the realities of asylum applicants because in mixed-motive asylum cases, such as this one, there are multiple grounds for persecution. The BIA s stringent standard of requiring asylum for applicants only when they prove the protected ground is not subordinate to others, ignores the harsh realities of mixed-motive asylum. For 14

24 example, if a sex worker protested their government s beliefs (in a country where prostitution is illegal) and faced life incarceration, the foreign government need only point at the applicant s occupation in denying their asylum. Then it becomes a battle of what is more likely than not for the grounds of persecution, which leads to a splitting of hairs. As such a standard would mean that an IJ, the BIA, or court would be allowed to deny an application, if found that an applicant s persecution was 31% based on his or her status as a sex worker compared to 30% based on his or her political beliefs because it is subordinate to another reason. Therefore, Petitioner respectfully requests that this Court apply the Second and Ninth Circuit s interpretation of the phrase at least one central reason. II. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT A FINDING OF SAFE RELOCATION WITHIN SAN MARTINO In order to qualify for asylum, the source of the persecution must be the government, a quasi-official group, or persons or groups that the government is unwilling or unable to control. See Avetovo-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000). The Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C.S. 1231(b)(3)(A) (emphasis added). If the applicant is determined to have suffered past persecution in the proposed country of removal on account of [a protected status] it shall be presumed that the applicant's life or freedom would be threatened in the future in the country of removal. 8 C.F.R (b)(1) (emphasis added). The burden then shifts to the United States Government to rebut that presumption by a preponderance of the evidence. 8 C.F.R (b)(1)(i). The United States Government may rebut that presumption in one of two ways: first, the presumption may be rebutted if the alien no longer has a well-founded fear. 8 C.F.R (b)(1)(A). Second, 15

25 if she could avoid future persecution by relocating to another part of her home country, and under all the circumstances, it would be reasonable to expect her to do so. 8 C.F.R (b)(1)(B). Past persecution against Sala has been shown, giving rise to the rebuttable presumption that her life or freedom would be threatened upon return to San Martino, the basis for asylum status. The United States Government has furthered neither of the two statutory bases for rebutting that presumption, therefore, relief under withholding of removal is mandatory for Sala here. A. The Source of the Persecution is ACCE, a Group That the Government Cannot Control. The Appellate Court s contention that there is not substantial evidence linking the attacks to ACCE fails to adequately consider the many indications of linkage provided by Sala s testimony, which has been established as credible. In order to qualify for asylum, the source of the persecution must be the government, quasi-official group, or persons or groups that the government is unwilling or unable to control. See Avetovo-Elisseva v. INS, 213 F.3d at Whether the San Martino Government is unwilling or unable to control ACCE is a question of fact. Ngengwe v. Mukasey, 543 F.3d 1029, 1033 (8th Cir. 2008). The factual issues on appeal are reviewed under the substantial evidence test. Bi Xia Qu v. Holder, 618 F.3d at 608. Under the substantial evidence test, we review the evidence in the light most favorable to the agency s decision, and draw all inferences in light of that decision. 8 U.S.C. 1252(b)(4)(B). There is substantial evidence that the attacks were tied to ACCE and no significant indication that the attacks were unrelated to ACCE from the record below. Therefore, even in light of the deference afforded by the substantial evidence standard, the record compels us to find that the Appellate court erred in its finding that the ACCE was not shown to be involved in Sala s attack. Thus, 16

26 there is substantial evidence that the persecution happened on account of a group that the government is unable to control, the ACCE. 1. There is substantial evidence that the ACCE was involved. The tear gas attack, graffiti, and assault were close in time to each other and the latter two were shortly after an exhibition presenting Sala s trans identity showing a strong likelihood that the incidents were related. (R. 7-8.) The fact that the same anti-trans, male-directed slurs were used on several of the occasions reinforces that evidence that the attackers were working together as an organized group. (R. 8.) The fact that Sala saw a tattoo on the final attacker commonly associated with white supremacists also strongly suggests that the ACCE was involved. (R. 9.) Additionally, the ACCE has a history of attacking trans prostitutes. (R. 21.) Despite all of these strong factual indications of ACCE involvement, the opinion below unduly jumps to the conclusion that the ACCE was not involved based on the mere fact that it is more common for ACCE acts to involve killing, not mere assaults. (R. 15.) This inference is insufficient because it is overshadowed by the far greater body of evidence in Sala s testimony of ACCE involvement. Furthermore, just because less ACCE attacks are assaults does not mean that this incident could not fit into that minority category. The Appellate court s undue assumption also overlooks the strong possibility for differences in reporting creating the disparity: like in Sala s case, many assaults may have been unreported whereas killings are too conspicuous not to report. Because the Appellate court gave no legitimate basis for finding that the ACCE is not involved and there was substantial evidence that the ACCE was involved in Sala s testimony, this court should reverse the Appellate court s undue conclusion that the ACCE was not involved. 17

27 2. There is substantial evidence that the ACCE is a group that the San Martino Government is unable to control. There is substantial evidence that the Government of San Martino is unable to control the ACCE. This shows that the requirement that the persecution be committed by the government, quasi-official group, or persons or groups that the government is unwilling or unable to control, was satisfied. See Avetovo-Elisseva v. INS, 213 F.3d at In De La Rosa v. Holder, the Second Circuit found that a drug ring was a group the Dominican Government was not able to control, overruling the BIA conclusion to the contrary in spite of the required deference to the BIA. 598 F.3d 103, 105 (2d Cir. 2010). In that case, the asylum applicant criminally implicated a member of a Dominican drug ring for cocaine and heroin. Id. at 106. The applicant sought asylum in fear of persecution from that drug ring including retaliation for implicating the member. Id. The BIA found that the drug ring was not a group the Dominican Government was unwilling or unable to control because Dominican police officers made investigations and arrests related to complaints and because the government stated that it was willing to take steps to prevent the applicant s torture. Id. at Notwithstanding that government s affirmative involvement in countering the group, the Second Circuit reversed the BIA s decision and found that the drug ring was a group the government was unable to control because of the ineffectiveness of the Dominican Government in preventing unlawful killings. Id. at 110; see also, N.L.A. v. Holder, 744 F.3d 425 (7th Cir. 2014) (where the Seventh Circuit overruled as insufficient the BIA s conclusion that the Colombian Government had control over FARC, a militant group, because that government had taken military efforts against that criminal group.). Therefore, a group the San Martino Government is unable to control committed the persecution. 18

28 Like the BIA in De La Rosa, the Appellate court here relied merely on a showing of government efforts against ACCE activity to conclude that the San Martino Government is able to control the ACCE. The Appellate court emphasized San Martino s recently passed antipersecution legislation targeted at ACCE activity to show that they had control over the group. (R. 16.) This is less protection than was provided by the Dominican Government in De La Rosa: the government there offered individual protection to the applicant whereas the San Martino government s protection of laws is not specific to Sala and were ineffective in deterring her attackers. De La Rosa v. Holder, 598 F.3d at 110. Also similar to De La Rosa, the Appellate court here failed to show that the San Martino Government is able to prevent unlawful ACCE killings. Sala, a credible witness, testified to a growing ACCE violence in the three years since the latest ACCE membership report, which shows that the San Martino Government is unable to control the group. (R. 21.) In De La Rosa, the Second Circuit held that government efforts against an organized group were insufficient to show that the government had control over the group where that government was unable to prevent unlawful killings by the group. Id. at 110. The Second Circuit s belief in that holding was strong enough to reverse the BIA s holding despite required deference to the BIA. Id at 105. The government in De La Rosa made a greater, individualized effort for protection of asylum seeker than here and in both cases the governments were unable to prevent unlawful killings. Therefore, the standard established there for showing that the government is unable to control a criminal group has been exceeded here. Therefore in light of that case, this Court should find that the San Martino Government is unable to control the ACCE. This should be found despite the deference to the BIA required here because similar facts were compelling enough for both the Second and Seventh Circuits to reverse the BIA s decision in circumvention of the required deference to the BIA. 19

29 Additionally, the 2013 San Martino Report drafted by the San Martino estimates the number of members in the ACCE at a number that is at its highest seven times as high as its lowest, showing that the government has a significant lack of knowledge regarding the ACCE, also showing that the San Martino Government is unable to control the ACCE. (R. 22.) Eligibility for asylum requires that a government group or a group the government cannot control conducted the persecution. See Avetovo-Elisseva v. INS, 213 F.3d at This eligibility has been satisfied because there is substantial evidence that the ACCE was involved and that the San Martino Government cannot control the ACCE. Although the substantial evidence standard gives deference to the IJ s factual findings, there is substantial evidence here that the ACCE was involved and no significant evidence that the ACCE was not involved, therefore requiring a reversal of those findings. 8 U.S.C. 1252(b)(4)(B). Furthermore, in similar factual circumstances the Second Circuit found that a government was unable to control a criminal group in reversal of the BIA s holding despite the requirement of deference to the BIA. B. There Has Been a Finding of Past Persecution, Therefore Giving Rise to The Rebuttable Presumption that Sala s Life or Freedom Would be Threatened Upon Return to San Martino. All the parties in this case have admitted that the attacks on Sala in San Martino were sufficiently severe to constitute persecution. (R. 10.) In general, courts have applied different standards for defining the term persecution, but in general agree that persecution entails more than low level harassment. Zakirov v. Ashcroft, 384 F.3d 541, 546 (8th Cir. 2004). Persecution entails the infliction or threat of death, torture, or injury to one s person or freedom, on account of a protected characteristic. Salkeld v. Gonzales, 420 F.3d 804, (8th Cir. 2005). In addition to the harm requirement for persecution, some circuits such as the Fourteenth and Fifth Circuit adopt the punitive intent requirement, the additional BIA standard 20

30 in which the BIA held that persecution contemplates that harm or suffering must be inflicted upon an individual in order to punish him Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). However, the punitive intent requirement has largely fallen of in the BIA. Matter of Kasinga, 21 Int. Dec. 357, 365 (BIA 1996); citing Matter of Kulle, I&N Dec. 318 (BIA 1985); Matter of Acosta, supra. Whether or not the punitive intent prong is required, the assaults and threats on Sala rise to the level of persecution. The harm prong for showing persecution was met during the first attack against Sala in which she suffered physical injuries after an attacker threw a tear gas explosive at her. (R. 7.) Further harm against her physical person occurred during Sala s final assault when her attacker inflicted significant physical injury to her person. (R. 8.) Injury against one s person is independently sufficient for a finding of past persecution. Salkeld v. Gonzalez, 420 F.3d at In addition, the punitive intent prong, although it has been largely disavowed, would be met here if the Court chose to apply it. At a minimum, persecution under this standard requires a particularized connection between the feared persecution and the alien s race, religion, nationality, or other listed characteristic. Faddoul v. I.N.S., 37 F.3d 185, 188 (5th Cir. 1994). The attacker who used tear gas did so while yelling male-gendered derogatory slurs. (R. 7.) The fact that these slurs contained a masculine pronoun while directed at a group of female identified sex-workers shows that the attack was connected to Sala s status as a trans woman. (R. 7.) The harm prong for establishing past persecution is satisfied by harm to one s person such as that inflicted by the tear gas attacker and Sala s final attacker. Salkeld v. Gonzalez, 420 F.3d at A few circuits also apply the punitive intent prong, which has been rejected by BIA therefore should not be applied. Matter of Kasinga, 21 Int. Dec. at 365. Even if applied, 21

31 the prong would be satisfied because there was a particularized connection between Sala s trans status and the first attack, and most likely the third as well. Faddoul v. I.N.S., 37 F.3d at 188. Past persecution against Sala has been established under any applicable standard and the parties in this case have conceded that past persecution has been established. C. The San Martino Government Has Failed to Rebut by the Preponderance of the Evidence the Presumption That Sala s Safety Would be Threatened Upon Her Return to San Martino. Where an alien establishes past persecution, a rebuttable presumption arises that her life or freedom would be threatened in the future if she is removed to her home country. 8 C.F.R (b)(1). The burden then shifts to the government to show, by a preponderance of the evidence, that either, first, there has been a fundamental change in circumstances such that the alien no longer has a well-founded fear, or second, that she could avoid future persecution by relocating to another part of her home country, and under all the circumstances, it would be reasonable to expect her to do so. 8 C.F.R (b)(1)(i)(A)-(B). In the case the government attempts to rebut the presumption of a threat to Sala s safety by establishing that there may be a relocation in the alien s country of origin, the relocation must be safe as well as reasonable. See Boer-Sedano v. Gonzales, 418 F.3d 1082, (9th Cir. 2005). The United States has shown neither a fundamental change in conditions or reasonable and safe relocation for Sala, therefore has no basis for rebutting the presumption that Sala would be threatened upon return to San Martino. 1. The 2013 San Martino report does not show that there has been a fundamental change in conditions in San Martino since Sala s persecution. Since past persecution against Sala has been established, the Respondent s first path to rebutting the presumption that her return to San Martino would be to show that there has been a 22