Gang Member Asylum Cases

Transcription

1 Gang Member Asylum Cases Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016) Decision November 30th, 2016 Amicus briefs in support of petition for rehearing Harvard Immigration and Refugee Clinical Program 2 20 Center for Gender & Refugee Studies, The Lawyers Committee for Civil Rights of the San Francisco Bay Area, and the American Immigration Lawyers association 21 45

2 (6 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 1 of 20 No UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WILFREDO GARAY REYES, Petitioner, v. JEFFERSON SESSIONS, Respondent. Appeal from the Board of Immigration Appeals Agency No. A BRIEF OF AMICUS CURIAE HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM IN SUPPORT OF WILFREDO GARAY REYES PETITION FOR REHEARING OR REHEARING EN BANC BARNES & THORNBURG LLP L. RACHEL LERMAN 2029 CENTURY PARK EAST, SUITE 300 LOS ANGELES, CALIFORNIA TELEPHONE: (310) FACSIMILE: (310) BARNES & THORNBURG LLP CHRISTOPHER J. BAYH LEAH SEIGEL 11 SOUTH MERIDIAN STREET INDIANAPOLIS, INDIANA TELEPHONE: (317) FACSIMILE: (317) ATTORNEYS FOR AMICUS CURIAE HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM page 1

3 (7 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 2 of 20 TABLE OF CONTENTS Page STATEMENT OF AMICUS CURIAE..1 INTRODUCTION: WHY THIS COURT SHOULD GRANT REHEARING OR REHEARING EN BANC...2 ARGUMENT...5 I. This Court Should Grant Rehearing or Rehearing en Banc to Address the BIA s Application of an Erroneous Legal Standard for Nexus....5 II. The Panel Erred in Applying the Particular Social Group Tests, and Did So in a Way that Threatens to Undermine the Nexus Test...8 A. The Panel Misapplied the Particular Social Group Test Particularity Social Distinction.11 B. The Panel s Decision Throws into Question the Purpose and Viability of the Nexus Test...12 CONCLUSION...14 CERTIFICATE OF COMPLIANCE...16 CERTIFICATE OF SERVICE...16 i page 2

4 (8 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 3 of 20 TABLE OF AUTHORITIES Page(s) Cases Bringas-Rodriguez v. Sessions, No , 2017 WL (9th Cir. Mar. 8, 2017)...6 Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011)...6 Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013)...7 Matter of Acosta, 19 I. &N. Dec. 211 (B.I.A. 1985)...3, 8 Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2104)...3 Matter of W-G-R-, 26 I. & N. Dec. 208 (B.I.A. 2014)...3, 10, 13 Oliva v. Lynch, 807 F.3d 53 (4th Cir. 2015)...4, 5, 12, 13 Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016)...passim Statutes 8 U.S.C. 1101(a)(42)(A) U.S.C.A. 1158(b)(1)(B)(i)...2, 5, 6 ii page 3

5 (9 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 4 of 20 TABLE OF AUTHORITIES Page(s) Other Authorities D. Anker, Law of Asylum in the United States, (2016 ed.)...3, 5, 6 J. Hathaway & M. Foster, The Law of Refugee Status, (Cambridge Univ. Press 2014)...3 R. Settlage, Rejecting the Children of Violence: Why U.S. Asylum Law Should Return to the Acosta Definition of A Particular Social Group, 30 Geo. Immigr. L.J. 287 (2016)...3, 5, 10 U.S. State Dept. Issue Paper: Youth Gang Orgs. in El Salvador...11 iii page 4

6 (10 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 5 of 20 STATEMENT OF AMICUS CURIAE 1 The Harvard Immigration and Refugee Clinical Program ( the Clinic ) at Harvard Law School has worked with hundreds of immigrants and refugees since its founding in It combines representation of individual applicants for asylum and related relief with the development of theories and policy relating to asylum law. The U.S. Department of Justice has engaged the Clinic in the training of immigration judges, asylum officers, and supervisors on a variety of issues related to asylum law. In addition, the Clinic provides advice, support, and supplemental services to immigration clinics, scholar, and advocates throughout the United States. The Clinic has filed briefs as amicus curiae in many cases in courts including the U.S. Supreme Court, the federal Courts of Appeals, the Board of Immigration Appeals ( BIA ), immigration courts, and various international tribunals. The Clinic has an interest in the proper application and development of U.S. asylum law to ensure that the claims of individuals seeking asylum and related relief receive fair and proper consideration under standards consistent with U.S. 1 Pursuant to F.R.A.P. 29(c)(5), amicus represents that no counsel for a party authored this brief in whole or in part, and no party or counsel for a party contributed money intended to fund the preparation or submission of this brief. No person other than amicus or counsel contributed money intended to fund the preparation and submission of this brief. 1 page 5

7 (11 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 6 of 20 laws and treaties. Amicus regards the issues in this case as especially important. It is concerned that the protective function of the United States domestic asylum and international treaty obligations will be undermined by an erroneous interpretation of 8 U.S.C. 1101(a)(42)(A), which requires asylum applicants to show that a protected ground, such as membership in a particular social group, was at least one central reason they were persecuted or fear persecution. Real ID Act of 2005, 101(a)(3), 8 U.S.C.A. 1158(b)(1)(B)(i). INTRODUCTION: WHY THIS COURT SHOULD GRANT REHEARING OR REHEARING EN BANC Wilfredo Garay Reyes ( Garay ) joined Mara 18, one of the two largest maras, or gangs, operating in El Salvador, when he was a teenager. When he left the gang, he was relentlessly persecuted by gang members, who target former gang members for brutal torture and murder. Fearing for his life, Garay sought to escape Mara 18, without success. He eventually fled to the United States and sought asylum here. The Immigration Judge ( IJ ) found Garay credible and agreed he was subjected to persecution by Mara 18. The BIA adopted these findings. Nevertheless, both the IJ and the BIA rejected Garay s application for asylum and 2 page 6

8 (12 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 7 of 20 withholding of removal, concluding he had not shown that former Mara 18 gang members constitute a particular social group for asylum purposes. 2 Until 2014, the BIA defined particular social group as a group of persons sharing a common, immutable characteristic. Matter of Acosta, 19 I. &N. Dec. 211, 233 (B.I.A. 1985). In 2014, in this case and one other, the BIA introduced a new definition, which requires refugees to establish particularity and social distinction. 3 In Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016), a panel of this Court (the Panel ) decided as a matter of first impression that the BIA s interpretation of what the Panel termed the ambiguous phrase particular social group, is reasonable and entitled to Chevron deference, as is the BIA s articulation of the particularity and social distinction requirements. Id. at As discussed in Garay s petition, the BIA s post-acosta test is not entitled to Chevron deference. Even if the BIA s test is accepted by this Court, 2 Past status has long been considered a classic example of an immutable characteristic because the past, by definition, cannot be changed. J. Hathaway & M. Foster, The Law of Refugee Status 5.9.8, pp (Cambridge Univ. Press 2014); D. Anker, Law of Asylum in the United States , pp (2016 ed.). 3 See Matter of W-G-R-, 26 I. & N. Dec. 208 (B.I.A. 2014); Matter of M-E- V-G-, 26 I. & N. Dec. 227 (B.I.A. 2104). See also discussion of these cases in R. Settlage, Rejecting the Children of Violence: Why U.S. Asylum Law Should Return to the Acosta Definition of A Particular Social Group, 30 Geo. Immigr. L.J. 287 (2016). 3 page 7

9 (13 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 8 of 20 however, the Panel misapplied it. That alone presents grounds for rehearing or rehearing en banc. 2. The Panel s failure to address the BIA s nexus analysis also presents grounds for rehearing or rehearing en banc. The BIA decided that Garay failed to satisfy the nexus prong because he did not show that the gang persecuted him for his status as a former gang member as opposed to his conduct in leaving the gang. CAR 21-22, The Panel expressed its discomfort with the BIA s nexus approach, observing in a footnote that the BIA s differentiation between the status of being a former gang member and the retributory acts of the gang has been criticized. Id. at 1132 n.4 (citing Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015)). But the panel failed expressly to reject the BIA s nexus approach, which renders the adverse asylum decision a foregone conclusion. Individuals who are persecuted because of conduct that identifies them as a member of a protected group cannot be said to fail the nexus test simply because their persecutors sought them out and harmed them based on that conduct. Under the BIA s test, a Christian refugee persecuted for avowing his fealty to Christ would fail to qualify for asylum because the IJ or the Board could find he was victimized for his conduct rather than his identity as a Christian. 3. Finally, the Panel misapplied the governing particular social group analysis in a way that fundamentally undermines this Circuit s binding precedent 4 page 8

10 (14 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 9 of 20 on the nexus issue. The Panel s analysis would allow the Government to defeat a showing of a particular social group or nexus by hanging endless hypothetical modifiers on the group an approach inconsistent with this Court s nexus standard and expressly rejected by the Fourth Circuit in its Oliva decision, which the Panel cited with approval. Rehearing or rehearing en banc are necessary to address and correct the BIA s nexus analysis and the BIA and the Panel s protected social group analysis. If just one test is corrected, Garay and other refugees in his position including former soldiers and gang members who leave the group rather than participate in unlawful acts of violence will be condemned to a life of persecution or death. See Settlage, supra, 30 Geo. Immigr. L.J ARGUMENT I. This Court Should Grant Rehearing or Rehearing en Banc to Address the BIA s Application of an Erroneous Legal Standard for Nexus. To establish nexus, Garay was thus required to show that his status as a former gang member was at least one central reason for Mara 18 s repeated and near-lethal attacks on him. 8 U.S.C. 1158(b)(1)(B)(i); see also D. Anker, Law of Asylum, :13 (2016 ed.) ( The USCIS [United States Citizenship and Immigration Services] Asylum Office has instructed that persecution may be related to several reasons, some connected to a protected ground, some not. ) (citing USCIS Asylum Officer Basic Training Course, Asylum Eligibility Part III: 5 page 9

11 (15 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 10 of 20 Nexus and the Five Protected Characteristics 7 8 (Mar. 12, 2009) (citing REAL ID Act and observing that [t]he persecutor may be motivated by several reasons, some unrelated to a protected ground. There is no requirement that the persecutor be motivated only by a desire to target the protected characteristic of the applicant. )). The REAL ID Act requires a petitioner to establish that his or her membership in a particular social group was or will be at least one central reason for persecuting the applicant. 8 U.S.C. 1158(b)(1)(B)(i) (emphasis added). This Court has explained that, an asylum applicant need not prove that a protected ground was the only central reason for the persecution she suffered, as a persecutory act may have multiple causes. Leiva-Perez v. Holder, 640 F.3d 962, 971 (9th Cir. 2011) (citation and quotations omitted). Moreover, an applicant need not prove that a protected ground was the most important reason why the persecution occurred. Ibid. ; accord, Bringas-Rodriguez v. Sessions, No , 2017 WL , at *15 (9th Cir. Mar. 8, 2017) (en banc). Garay showed that Mara 18 persecuted him in retribution for leaving the gang. But instead of applying the REAL ID test (which Garay would have met) the BIA decided that Garay failed the nexus test because he did not show that the retributive harm the respondent fears would bear a nexus to his status as a former gang member, as opposed to his acts in leaving the gang. CAR 22 (emphasis 6 page 10

12 (16 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 11 of 20 added). This purported distinction between Garay s identity as a former gang member and the conduct that gave rise to that identity places is simply bizarre. How can a refugee show that he was persecuted for being a former gang member as opposed to becoming one by leaving the gang? The Panel declined to address the BIA s nexus finding (because it affirmed its decision on other grounds), but mentioned in a footnote that the BIA s differentiation between the status of being a former gang member and the retributory acts of the gang has been criticized. Reyes, 842 F.3d at 1132 n.4 (citing Oliva, 807 F.3d at 60). This weak acknowledgment that another circuit has criticized the BIA s faulty reasoning leaves open the question whether that reasoning is acceptable in this Circuit. This Court should make clear it is not. This Court suggested as much in Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013), when it held that the nexus test was satisfied because the anti-drug activity that the gang punished was inherent in the very definition of the group: former soldiers who participated in anti-drug activity. Id. at 506. This Court should grant rehearing or rehearing en banc to ensure that the BIA cannot reduce the nexus test to a game of heads I win, tails you lose, for Garay s petition or those of future refugees. 7 page 11

13 (17 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 12 of 20 II. The Panel Erred in Applying the Particular Social Group Tests, and Did So in a Way that Threatens to Undermine the Nexus Test. A. The Panel Misapplied the Particular Social Group Test. In adopting the BIA s 2014 definition of particular social group (in place of the 1985 Acosta definition, namely, persons sharing a common, immutable characteristic ), the panel distinguished the particularity and social distinction prongs based on perception of different classes of person the persecutors and the community. 4 The Panel characterized the particularity requirement as asking whether a group s boundaries are so amorphous that, in practice, the persecutor does not consider it a group. Reyes, 842 F.3d at 1135 (citing Henrique-Rivas, 707 F.3d at 1091) (emphasis added). And it characterized the social distinction requirement as asking whether a proposed particular social group s shared characteristic or characteristics would generally be recognizable by other members of the community, or whether there was evidence that members of the proposed group would be perceived as a group by society. Id. at 1136 (quoting Henrique Rivas, 707 F.3d at ) (emphasis added). The Panel failed, however, to apply these tests as described. 4 The Panel did not explain why or how society s perceptions might differ from the persecutors perceptions. 8 page 12

14 (18 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 13 of Particularity. In affirming the BIA s determination that Garay s group lacks particularity, the Panel held that Garay failed to show that society recognizes gang members who renounce their membership regardless of the length and recency of that membership. Reyes, 842 F.3d at In other words, the Panel superimposed the social distinction test onto the particularity test. The Panel did not consider, as it should have based on its own definition, whether the group to which Garay belongs boys and young men who renounce gang life is discrete or amorphous in the eyes of its persecutors. Instead it referred to society at large. It also rendered the test a nullity by suggesting that Garay would need to clarify the group according to the length and recency of that membership in the gang. See id. Garay s group could not be more definite in the eyes of persecutors the record shows that gang members seek out former gang members and persecute them for leaving the gang, i.e., for being former gang members. The modifiers suggested by the BIA and accepted by the panel length and recency of membership might reduce the size of the group, but only at the expense of particularity. When does the clock being to run? Does a gang seek to punish a boy who leaves after three years more severely than one who leaves after two or two 9 page 13

15 (19 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 14 of 20 and a half? These subjective criteria would render the group amorphous and be impossible to apply in practice. 5 In this case, the proposed modifiers make no sense because there is zero evidence that gang members consider length and recency of membership in carrying out their regime of persecution against former members. To the contrary, the record shows that length and recency were irrelevant, and that former membership was the one critical classification that brought on persecution. (See respectively AR 109, 149, ( anyone trying to leave [the gang] could be punished with beatings or being killed ; any former member s life [was] in jeopardy because the gang leader would have killed anyone ; they say that if you leave the gang your life is at risk) and AR (Garay targeted in a driveby shooting three months after leaving gang, and attacked with machetes much later after fleeing across country).) In sum, adding ad hoc modifiers subjects all asylum-seekers to an impossible standard that requires refugees to prove a negative. Particularity also 5 See Settlage, supra, 30 Geo. Immigr. L.J. at 311 ( If the proposed group in Matter of W-G-R- had been defined with this degree of particularity, it is unlikely that [Garay] would have been able to find sufficient evidence to demonstrate social distinction. For example, former gang members who were leaders within the last two years would not necessarily be socially distinguishable from former gang members who were [members only] five years ago. ). 10 page 14

16 (20 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 15 of 20 becomes an ever-moving target: even where applicants can show that certain proposed modifiers are not relevant, the Government can respond by adding more. 2. Social Distinction. In accepting the BIA s decision that Garay failed to show social distinction, the Panel rejected Garay s evidence of rehabilitation programs run for the benefit of former gang members and of threats former gang members face from members of their own and other gangs, on the grounds that current gang members may also avail themselves of [such] government programs. Reyes, 842 F.3d at In other words, the panel suggests that gang members may seek rehabilitation without renouncing the gang, making them indistinguishable from former gang members. That is not what the record shows. The record is clear that the church groups and other organizations that operate gang rehabilitation programs do so to help mara [gang] members who seek to leave their gangs and [achieve] reintegration into mainstream society. AR 266 (U.S. State Dept. Issue Paper: Youth Gang Orgs. in El Salvador) (emphasis added). The record thus demonstrates that society does in fact recognize the group of reformed gang members to which Garay belongs. The Panel also theorized that suspected gang members might blur social distinction because they also might face discriminatory treatment and other challenges in Salvadoran society. Reyes, 842 F.3d at But discriminat[ion] 11 page 15

17 (21 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 16 of 20 and challenges are not persecution suspected gang members are not targeted for brutal torture and murder, as former gang members are. If the Panel s reasoning is correct, then any panel or the IJ, or BIA panel, or the Government could defeat a showing of social distinction by explaining that other groups in society also face some negative consequences. In sum, the Panel failed properly to apply either prong of the particular social group test. B. The Panel s Decision Throws into Question the Purpose and Viability of the Nexus Test. As explained above, the Panel s reasoning would require petitioner to prove endless negatives to defeat hypothetical modifiers that the government might try to hang on the particular social group. This flawed reasoning would also make it impossible for applicants to meet the nexus test, even when the proper nexus standard is applied (and even when applicants are represented by counsel, which often is not the case). Assuming arguendo that a refugee can negate all of the modifiers that the Government might try to hang on a particular social group (as discussed above, this will itself be all-but impossible to prove), he will be unable to show whether he was persecuted based on those particular modifying factors. The Fourth Circuit s recent decision in Oliva discusses this exact connection between nexus and particular social group analysis, and notes that the BIA s standard in the instant case the very standard that the Panel endorsed is 12 page 16

18 (22 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 17 of 20 impossible to meet and can preclude any applicant from showing either particular social group or nexus: We note that the BIA often requires petitioners to add modifiers onto their social group definition to meet the particularity requirement. See W G R [Wilfredo Garay Reyes, the BIA s opinion below here], 26 I. & N. Dec. at Requiring each modifier to be an independent, central reason for the persecution [i.e. to establish nexus] could make it nearly impossible for petitioners to successfully navigate the legal requirements for asylum and withholding of removal. 807 F.3d at 61 n.4 (discussing nexus prong). The Panel cited the Oliva court s general nexus approach with seeming approval, see 842 F.3d at 1132 n.4 (citing Oliva, 807 F.3d at 60, discussing nexus). But the Panel did not address the above-cited analysis, which illustrates the inextricable link between particular social group and nexus, and exposes the flaw in the Panel s analysis. Given the interconnection of protected category and nexus, it is critical that this Court revisit this case either as a panel or en banc to reexamine the particular social group issues and to address nexus in the first instance. If the opinion is allowed to stand, it will prevent all refugees in Garay s position from obtaining asylum, and condemn them no matter what the facts of their situation to persecution and often death. Now, more than ever, this Court and courts and agencies around the country need to get the law right. Vulnerable persons seeking asylum or withholding, whose lives may be threatened by 13 page 17

19 (23 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 18 of 20 persecution, should at minimum be afforded fair and predictable treatment under the law. CONCLUSION For the foregoing reasons and the reasons stated in Garay s brief, this Court should grant rehearing or rehearing en banc. Respectfully submitted, Dated: March 13, 2017 BARNES & THORNBURG, LLP L. Rachel Lerman Christopher Bayh Leah Seigel By /s/ L. Rachel Lerman PRO BONO COUNSEL FOR AMICUS CURIAE HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM 14 page 18

20 (24 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 19 of 20 CERTIFICATE OF COMPLIANCE 1. This brief complies with Fed. R. App. P. 32 (a)(7) and 29(a)(5) and contains 3,758 words. 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word version 2007 in a 14-point Times New Roman font. Dated: March 13, 2017 BARNES & THORNBURG, LLP L. Rachel Lerman Christopher Bayh Leah Seigel By /s/ L. Rachel Lerman PRO BONO COUNSEL FOR AMICUS CURIAE HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM IN SUPPORT OF PETITIONER 15 page 19

21 (25 of 25) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 112-2, Page 20 of 20 CERTIFICATE OF SERVICE I hereby certify that on March 13, 2017, I electronically filed the foregoing BRIEF OF AMICUS CURIAE HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM IN SUPPORT OF PETITIONER with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. /s/ Jessica L. Stephens Jessica L. Stephens DMS v2 16 page 20

22 (11 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 1 of 24 Case No UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Wilfredo Reyes, Petitioner, v. Jefferson Sessions, Attorney General Respondent. Appeal from the Board of Immigration Appeals Agency No. A BRIEF OF AMICI CURIAE THE CENTER FOR GENDER & REFUGEE STUDIES, THE LAWYERS COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA, AND THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION IN SUPPORT OF PANEL REHEARING AND/OR REHEARING EN BANC BROOK DOOLEY, # AUDREY HADLOCK, # SOPHIE HOOD, # KEKER, VAN NEST & PETERS LLP 633 Battery Street San Francisco, CA Telephone: Facsimile: Attorneys for the Center for Gender & Refugee Studies, the Lawyers Committee for Civil Rights of the San Francisco Bay Area, and the American Immigration Lawyers Association page 21

23 (12 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 2 of 24 CORPORATE DISCLOSURE STATEMENTS Pursuant to Federal Rule of Appellate Procedure 26.1, the Center for Gender & Refugee Studies, the Lawyers Committee for Civil Rights of the San Francisco Bay Area, and the American Immigration Lawyers Association are all non-profit corporations that do not issue stock or have parent corporations. 1 page 22

24 (13 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 3 of 24 TABLE OF CONTENTS Page I. INTRODUCTION... 1 II. STATEMENT OF INTEREST AND AUTHORITY TO FILE... 2 III. ARGUMENT... 3 A. The panel rubber-stamped a BIA rule that will harm increasing thousands of claimants under the new immigration regime Changes to immigration policy mean many more individuals will now be affected by the BIA s unlawful standard for particular social group claims, often in expedited removal proceedings with no access to counsel New policies also require full application of the improper BIA standard by immigration officers (instead of immigration judges) B. The panel erroneously upheld the BIA s convoluted social distinction and particularity requirements and failed to address the new, heightened particularity standard the BIA applied for members of particular social groups based on former associations which conflicts with existing law C. The panel decision permits the BIA to impose an implicit categorical bar on members of particular social groups based on former associations that has no basis in the Act The Court should clarify that Arteaga v. Mukasey does not require or support the BIA s bar on particular social group claims based on former associations with gangs i page 23

25 (14 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 4 of The panel erred by upholding a BIA rule that implicitly invents a new statutory bar IV. CONCLUSION CERTIFICATE OF COMPLIANCE... 1 ii page 24

26 (15 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 5 of 24 TABLE OF AUTHORITIES Page(s) Federal Cases Arteaga v. Mukasey 511 F.3d 940 (9th Cir. 2007)... 1, 14, 16 Benitez Ramos v. Holder 589 F.3d 426 (7th Cir. 2009)... 15, 17 Cordoba v. Holder 726 F.3d 1106 (9th Cir. 2013)... 11, 12 Henriquez-Rivas v. Holder 707 F.3d 1081 (9th Cir. 2013) J.E.F.M. v. Lynch 837 F.3d 1026 (9th Cir. 2016)... 6 Martinez v. Holder 740 F.3d 902 (4th Cir. 2014) Ochoa v. Gonzales 406 F.3d 1166 (9th Cir. 2005) Perdomo v. Holder 611 F.3d 662 (9th Cir. 2010) Pirir-Boc v. Holder 750 F.3d 1077 (9th Cir. 2014) Reyes v. Lynch 842 F.3d 1125 (9th Cir. 2016)... 11, 14 United States v. Carolene Prods. 304 U.S. 144 (1938) United States v. Peralta-Sanchez 847 F.3d 1124 (2017)... 5, 6, 9 United States v. Raya-Vaca 771 F.3d 1195 (9th Cir. 2014)... 9 Urbina-Mejia v. Holder 597 F.3d 360 (6th Cir. 2010) iii page 25

27 (16 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 6 of 24 Administrative Cases Matter of Acosta 19 I. & N. Dec. 211 (B.I.A. 1985)... 10, 15, 16 Matter of Fuentes 19 I. & N. Dec. 658 (B.I.A. 1988) Matter of M-E-V-G- 26 I. & N. Dec. 227 (B.I.A. 2014) Matter of W-G-R- 26 I. & N. Dec. 208 (B.I.A. 2014)... 11, 12, 14, 16 Federal Statutes 8 U.S.C U.S.C Federal Regulations 69 Fed. Reg (Aug. 11, 2004) Fed. Reg (Jan. 25, 2017)... 4 iv page 26

28 (17 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 7 of 24 I. INTRODUCTION The panel decision here failed to address Board of Immigration Appeals ( BIA ) errors that will have devastating implications for countless individuals subject to the current administration s immigration crackdown who will risk persecution if returned to their home countries. The Court should reject the BIA s stringent and erroneous test for particular social group asylum claims and clarify that the law must and does protect individuals who seek relief from persecution linked to membership in particular social groups based on their former associations. The panel endorsed the BIA s unlawful rule requiring social distinction and particularity as well as its arbitrary new requirements for persecution claims based on former associations, contrary to Ninth Circuit (and other Circuits ) precedent and the BIA s own prior decisions. Given the government s current ramped-up enforcement and expansion of expedited removals rapid, largely unreviewable decisions by border officers applying the BIA s standards, without providing access to counsel or a hearing this BIA rule will affect thousands more claimants than it would have previously. And combined with the BIA s interpretation of this Court s Arteaga v. Mukasey decision, the BIA s rule will amount to an insurmountable and unlawful extra-statutory bar on claims based on former associations. 1 page 27

29 (18 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 8 of 24 The Court should grant panel and/or en banc rehearing to correct these errors. Rehearing will maintain consistency in this Court s precedent. It will also ensure the lawful treatment of individuals impacted by changing immigration policies who may present meritorious claims for asylum or withholding of removal based on their former associations. These evolving issues are complex and important, and they deserve the Court s full and careful attention on rehearing. II. STATEMENT OF INTEREST AND AUTHORITY TO FILE Amici the Center for Gender & Refugee Studies, the Lawyers Committee for Civil Rights of the San Francisco Bay Area, and the American Immigration Lawyers Association are involved in the representation of refugees, have extensive expertise in immigration law, and advocate on behalf of refugee children, as set forth in detail in the accompanying Motion for Leave to File. All amici have a strong interest in the development and consistent application of the law on asylum and withholding of removal, including the legal standards defining membership in a particular social group. No counsel for a party to this case has authored any part of this brief; no party, or counsel for a party, has contributed any money to fund the preparation or submission of this brief; and no one other than amici and their counsel have contributed any money to fund the preparation or submission of this brief. 2 page 28

30 (19 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 9 of 24 Amici seek authority to file this brief by their accompanying, unopposed Motion for Leave to File. (Petitioner consents to this filing; Respondent takes no position.) III. ARGUMENT Rehearing is needed here to ensure lawful application of the complex laws governing claims for asylum and withholding of removal, and consistent interpretation of those important laws at the BIA and among the courts of appeals. The need is especially urgent and important now because of the increasing numbers of individuals likely to be subjected to expedited removal under current immigration policies. The panel ignored the BIA s actual analysis and tacitly endorsed a new, arbitrary BIA rule that conflicts with existing Ninth Circuit law and relevant statutes and that implicitly establishes an extra-statutory bar on persecution claims by members of particular social groups based on former associations. A. The panel rubber-stamped a BIA rule that will harm increasing thousands of claimants under the new immigration regime. The current administration s changes to enforcement policy make it especially important that the Court rehear this case and require the BIA to provide fair and lawful treatment for the many new claimants likely to be affected by the particular social group standard going forward. 3 page 29

31 (20 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 10 of Changes to immigration policy mean many more individuals will now be affected by the BIA s unlawful standard for particular social group claims, often in expedited removal proceedings with no access to counsel. Many thousands of migrants regularly seek relief from persecution in immigration proceedings. In 2016, more than 100,000 individuals made defensive asylum claims. 1 Increasing numbers of those being deported or removed come from Central American countries including El Salvador, many of them (like Petitioner) fleeing gang violence and persecution based on their membership in particular social groups. Id. New enforcement policies will dramatically increase the number of individuals detained and expelled from the country. The administration s January 25, 2017 executive order directed major changes in immigration enforcement policies, which Homeland Security is working to implement. 2 The administration has rescinded previous enforcement priorities and no longer will exempt classes or categories of removable aliens from potential enforcement. Feb. 20, See USCIS, Fiscal Year 2016 ICE Enforcement & Removal Operations Report, available at pdf (as of March 6, 2017). 2 Formal regulations have not yet issued. See Border Security and Immigration Enforcement Improvements, 83 Fed. Reg (Jan. 25, 2017); Feb. 20, 2017 Memorandum re Implementing the President s Border Security and Immigration Enforcement Improvements ( Implementation Memo ) at 1, available at 4 page 30

32 (21 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 11 of 24 Memorandum re Enforcement of the Immigration Laws to Serve the National Interest ( Enforcement Memo ) at 2. 3 Instead of focusing on violent criminals and other high-risk individuals, the administration has now targeted full enforcement against all removable individuals. Id. at 2. The new policy also appears to require detention of all removable individuals pending removal. Implementation Memo at 2-3. Many of those detained will certainly present asylum or withholding claims. In addition, prior policies had permitted expedited removal proceedings only for individuals at ports of entry, those who arrived by sea (present in the U.S. less than two years), or those apprehended within 100 miles of the border and unable to prove their physical presence in the country for the immediately preceding fourteen days. See United States v. Peralta-Sanchez, 847 F.3d 1124, 1130 (2017). 4 The administration has directed the Department of Homeland Security ( DHS ) to expand expedited removal, apparently to its maximum statutory scope: all removable individuals unable to prove their presence in the country for two full years. See Border Security and Immigration Enforcement Improvements, 82 Fed. 3 Available at 4 See also DHS Notice re Designating Aliens for Expedited Removal, 69 Fed. Reg , (Aug. 11, 2004); Implementation Memo at 6. 5 page 31

33 (22 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 12 of 24 Reg. 8793, 8796 (2017). 5 If DHS expands expedited removal in this way, many more individuals will face the BIA s unlawful standard without access to counsel (even at their own expense) or a full hearing. This makes it especially important to clarify the law and reject the BIA s unlawful standard here. See United States v. Peralta-Sanchez, 847 F.3d 1124 (2017) New policies also require full application of the improper BIA standard by immigration officers (instead of immigration judges). Other policy changes also make it vitally important to provide clear guidance about what is and is not required to establish claims based on membership in a particular social group based on former associations. Under recently released guidelines, DHS is directing immigration officers to treat the credible fear interviews traditionally used for initial screening of plausible claims as complete evaluations of claims, essentially replacing a full hearing before an immigration judge. See Implementation Memo at 8 (requiring officer[s] to elicit all relevant information... as is necessary to make a legally sufficient determination ). Overall, the new policy seeks to increase the number of claims 5 DHS intends to eliminate unacceptable delays that allow individuals with no plausible claim for relief to remain unlawfully in the United States for many years. Implementation Memo at 6-7 (citing backlog of 534,000 cases). 6 Peralta-Sanchez relied on the limited scope of expedited removal (as then applied) in finding no right to counsel. Id. at ; see also J.E.F.M. v. Lynch, 837 F.3d 1026, 1029 (9th Cir. 2016) (declining to address whether children have a right to counsel in immigration proceedings). 6 page 32

34 (23 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 13 of 24 evaluated immediately at the border. Id. at 8-9. DHS places at least as much emphasis on eliminating asylum-related fraud as it does on providing adequate relief to those entitled to asylum or other relief from persecution, however, creating a strong incentive for officers to deny claims. See id. at 8-9. The shift towards complete assessments of claims in initial screening interviews makes it even more important for the Court to correct the BIA s improper test for social group claims. Unlike prior versions, both the 2014 and 2017 guidelines direct asylum officers to assess particular social group claims in detail based on the BIA s flawed framework of social distinction and particularity. February 28, 2014 ADOTC Lesson Plan Overview: Credible Fear of Persecution and Torture Determinations ( 2014 CFI ) at 25-26; February 13, 2017 ADOTC Lesson Plan Overview: Credible Fear of Persecution and Torture Determinations ( 2017 CFI ) at Indeed, the guidelines specifically direct officers to the BIA s decision in this case as the proper authority to apply in evaluating social group claims. Id. The government s new 2017 credible fear guidelines also continue a recent trend of directing officers to conduct ever more stringent evaluations during the initial screening. This policy reduces the chance that individuals will pass the initial screening and be granted a full hearing (with its increased procedural protections). That in turn increases the risk of expedited removal for many who 7 page 33

35 (24 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 14 of 24 might otherwise successfully claim asylum or withholding. For example, the 2017 guidelines remove prior language explaining that if there is reasonable doubt about a credible fear determination, the applicant likely merits a positive finding so that questions can be addressed in a full hearing before an immigration judge. 7 The new guidelines also apply stricter standards for judging applicants credibility, directing officers to make credibility rulings themselves rather than deferring them for an immigration judge. This shift also increases the importance of rehearing here, because it means fewer applicants are likely to receive a full hearing. For example, the 2017 guidelines instruct officers that [t]he asylum officer should assess the credibility of the assertions underlying the applicant s claim, considering the totality of the circumstances and all relevant factors CFI at 18 (Sect. VI(A)). The 2014 guidelines had instead instructed that applicants must only show a significant possibility that [the claim] could be found credible in a full asylum or withholding... hearing CFI at 17 (Sect. VI(A)). The new credibility guidelines are replete with other similar changes. For example, the 2014 guidelines but not 2017 instruct that [b]ecause the credible fear determination is a screening process, the asylum officer does not make the final determination as to whether the applicant is credible, but leaves that 7 Compare 2017 CFI at 17 to 2014 CFI at 16 (Section V(C)(3)). 8 page 34

36 (25 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 15 of 24 determination for an immigration judge to make after a full hearing on the merits CFI at 17 (Sect. VI(B)(1)(a)); 2017 CFI at Expanding the scope of expedited removal and imposing harsher screening criteria in credible fear interviews will increase the risk that cursory, unfair proceedings will eliminate even meritorious asylum and withholding claims. This Court has previously found due process violations by immigration officers who violated the most basic requirements of due process in expedited removal proceedings. United States v. Raya-Vaca, 771 F.3d 1195, (9th Cir. 2014) (officer failed to explain nature of the proceedings). A recent ACLU analysis found that 55% of individuals summarily removed were never asked about a fear of persecution, or were not asked anything in a language they understood; 40% of those who reported fear still were not referred to an asylum officer. ACLU Foundation, American Exile: Rapid Deportations That Bypass the Courtroom at 4 (Dec. 2014), available at expeditedremoval_0.pdf; see also Peralta-Sanchez, 847 F.3d at 1145 (Pregerson, J., dissenting). Improper removals of individuals with well-founded fears of persecution have predictably tragic consequences, including rape, sex-trafficking, and murder. See American Exile at 4 (examples); AR , 693 (murder by former gang). 8 See also, e.g., 2017 CFI at & 2014 CFI at 18 (Sect. VI(B)(1)(d)). 9 page 35

37 (26 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 16 of 24 New post-deportation killings continue to illustrate these risks which current policies will only increase. See Marie Friedmann Marquardt, Brother of killed asylum seeker: Tell the judge he told the truth, Religion News Service (March 9, 2017), This reality makes it crucial for the Court to correct the BIA s errors in defining particular social groups which the panel failed to do. B. The panel erroneously upheld the BIA s convoluted social distinction and particularity requirements and failed to address the new, heightened particularity standard the BIA applied for members of particular social groups based on former associations which conflicts with existing law. The panel decision approved the BIA s test for membership in a particular social group without addressing the unlawful standard that the BIA actually invented and applied here. The Court should rehear the case to reject the BIA s overall particularity and social distinction tests and return to the approach set forth in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), which properly recognizes social groups defined by immutable or fundamental characteristics, without additional factors. Amici agree with and incorporate by reference Petitioner s clear and forceful argument on this issue. See Pet. for Review at pp In addition at a minimum the Court must reject the BIA s heightened particularity requirement for membership in particular social groups based on 10 page 36

38 (27 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 17 of 24 former associations. The panel failed to analyze this new requirement. Instead, the panel simply held that the BIA s articulation of the particularity and social distinction requirements was reasonable and entitled to Chevron deference. Reyes v. Lynch, 842 F.3d 1125, 1135 (9th Cir. 2016). This was error. The BIA purported to further explain the importance of its particularity and social distinction tests as part of the definition of the phrase particular social group. Matter of W-G-R-, 26 I. & N. Dec. 208, , 212 n.2 (B.I.A. 2014). But the BIA s new analysis contravened both Ninth Circuit and Board precedent, and imposed an unworkable new requirement that particularity be shown with further specificity for particular social group claims based on at least some former associations. The BIA rejected Petitioner s proposed social group because the group could include persons of any age, sex, or background. Id. at 221. But the Ninth Circuit has repeatedly and expressly rejected the idea that breadth and diversity of members defeats particularity, overruling precedents [rejecting social groups that] focus[ed] on the breadth or diversity of membership within a proposed social group. See Cordoba v. Holder, 726 F.3d 1106, 1116 (9th Cir. 2013) (citing Henriquez-Rivas v. Holder, 707 F.3d 1081, (9th Cir. 2013)); see also Perdomo v. Holder, 611 F.3d 662, (9th Cir. 2010) (holding that the BIA could not reject all women in Guatemala as a particular social group solely 11 page 37

39 (28 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 18 of 24 because it was broad and internally diverse). Indeed, Cordoba specifically rejected the reasoning in Ochoa v. Gonzales, 406 F.3d 1166 (9th Cir. 2005), one of the cases upon which the Board relied. See W-G-R-, 26 I. & N. Dec. at 214. The BIA s analysis of particularity also conflicts with its own precedent and the Act. It appears to announce a new particularity rule that often applies when a former association is the immutable characteristic that defines a proposed group. Id. at In such cases, the BIA ruled, a group must be further defined with respect to the duration or strength of the members active participation in the activity and the recency of their active participation. Id. (emphasis added). The BIA could not cite any case supporting such factors, however. See id. at On the contrary, the BIA acknowledged that in Fuentes, it held that [f]ormer member[s] of the national police could be a particular social group without considering the length or recency of the applicant s service in the national police. See id. at 219 (citing Matter of Fuentes, 19 I. & N. Dec. 658, 662 (B.I.A. 1988)). The BIA s new rule for groups defined by former associations also conflicts with its own stated purpose for the rule. According to the BIA, its particularity requirement serves to provide a clear benchmark for determining who falls within the group, and [t]he group must not be amorphous, overbroad, diffuse, or subjective. W-G-R-, 26 I. & N. Dec. at 214 (citation omitted). But the BIA s new duration, strength, and recency test makes it less clear who falls within the 12 page 38

40 (29 of 34) RESTRICTED Case: , 03/13/2017, ID: , DktEntry: 113-2, Page 19 of 24 group, and invites subjective analysis about the applicant s level of involvement in the group. Moreover, the BIA s concerns about the outer limits of Reyes s group of former Mara 18 members would apply equally to former members of the national police, or those who oppose oppressive regimes, or those persecuted because of religious affiliations all of which have been recognized as particular social groups or other protected groups. 9 All particular social groups will have variation among members as to duration, strength, and recency. The BIA s new test is arbitrary and improper because it singles out certain groups for exclusion based on a meaningless distinction. It conflicts with the Act and controlling precedent, and was not entitled to deference. C. The panel decision permits the BIA to impose an implicit categorical bar on members of particular social groups based on former associations that has no basis in the Act. The panel also erred because it approved a BIA standard that effectively creates a new statutory bar on claims by former gang members or others claiming membership in a particular social group based on past associations, without any basis in the law. The BIA requirement that the panel ignored imposes an apparently insurmountable barrier to claims based on former associations. 9 The Board also failed to account for the record evidence that Petitioner was previously a member of a gang, former members of which are a recognized discrete group in El Salvador. See, e.g., AR 110 (Petitioner s history); AR 354 (government assistance to former gang members who want to be rehabilitated ). 13 page 39