UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE OF IMMIGRATION REVIEW IMMIGRATION COURT 800 DOLOROSA STREET, SUITE 300 SAN ANTONIO, TEXAS

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1 Edna Yang, Esq. American Gateways 314 E. Highland Mall Blvd., Ste. 501 Austin, TX NON-DETAINED UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE OF IMMIGRATION REVIEW IMMIGRATION COURT 800 DOLOROSA STREET, SUITE 300 SAN ANTONIO, TEXAS ) IN THE MATTERS OF ) ) Norma E. DIAZ PINEDA (LEAD), ) A Karla LARA DIAZ, ) A Jennifer LARA DIAZ, ) A ) Respondents. ) IN REMOVAL PROCEEDINGS ) Before Judge Bertha Zuniga Next Master Hearing June 23, 1:00 PM RESPONDENTS BRIEF IN SUPPORT OF THEIR APPLICATION FOR ASYLUM WITHHOLDING OF REMOVAL AND RELIEF UNDER THE CONVENTION AGAINST TORTURE

2 Now come Respondents, Norma Diaz Pineda (Lead Respondent), Karla Lara Diaz (minor) and Jennifer Lara Diaz (minor), who through their counsel respectfully submit their Brief in Support of their Asylum Claim, request for Withholding of Removal, and relief under the Convention Against Torture (CAT). In support thereof, Respondent states the following: I. Summary of Proceedings Ms. Diaz Pineda and her children applied for asylum and withholding of removal before Immigration Judge (IJ) Richard F. Brodsky and had an individual calendar hearing on their claims on February 5, On March 1, 2002, IJ Brodsky rendered an oral decision denying the application for asylum pursuant to Section 208(a) of the Immigration and Naturalization Act (INA). In reaching his decision, the IJ found that the verbal, sexual and physical abuse suffered by the Ms. Diaz-Pineda did not rise to the level of past persecution. Transcript (Tr.) at 8. The IJ also determined that she had not demonstrated a well-founded fear of future persecution should she be returned to Honduras. Id. Ms. Diaz Pineda filed a timely appeal to the Board of Immigration Appeals (BIA). On July 3, 2003, Ms. Diaz Pineda submitted a brief in support of her appeal. That case remained at the BIA until it was remanded back down to the IJ on June 9, 2009 for further factual development and argument in light of the 2008 Attorney General s decision in Matter of R-A-, 24 I&N Dec. 629, 631 (A.G. 2008). As IJ Brodsky had retired from his position as an Immigration Judge, the case was certified to IJ Bertha Zuniga. A Master Calendar Hearing was held on September 2, 2009, during which the case was set for an Individual Hearing in which further factual development of the Record of Proceedings (ROP) and argument will be heard in 2

3 accordance with the remand from the BIA. Respondents now submit this brief in support of their claims. II. Statement of Facts Ms. Diaz-Pineda is a citizen and national of Honduras who fled persecution in her home country with two of her minor children, Carla Elizabeth and Jennifer Selena on September 24, She entered the United States through Eagle Pass, Texas on October 10, That same day, the then named Immigration and Naturalization Service issued a Notice to Appear (NTA) charging her and her daughters with removability pursuant to INA 212(a)(6)(C)(i). Ms. Diaz-Pineda filed an Application for Asylum and for Withholding of Removal on October 5, Following a delay due to the events of September 11, 2001, her case was heard by Immigration Judge Richard Brodsky on February 5, Judge Brodsky issued his decision on March 1, 2002 denying her claim. Ms. Diaz gave notice of her intent to appeal. Ms. Diaz Pineda has suffered past persecution and has a well-founded fear of future persecution on account of her membership in two particular social groups: (1) Honduran women in domestic relationships who are unable to leave, and (2) Honduran women who are viewed as property by virtue of their positions within a domestic relationship, and on account of her political opinion that women should not live under the dominance of men. Ms. Diaz-Pineda has suffered past persecution in the form of extreme physical and psychological abuse inflicted by her domestic partner, Jose Francisco Lara. Ms. Diaz-Pineda s domestic relationship with Mr. Lara began when he raped her at gunpoint while both were staying at her stepfather s ranch in Trojas, Honduras in the fall Tr. at 43. Several months later Mr. Lara encountered Ms. Diaz-Pineda out 3

4 walking with her son and forced her to accompany him to a hotel were he raped her again and she became pregnant as a result of the rape. Tr. at 44. It was at this point that Mr. Lara announced their domestic relationship to Ms. Diaz Pineda s family and made it known that she belonged to him. Mr. Lara approached Ms. Diaz-Pineda s family, claimed her as his woman, and took her to live in a place he rented for her. Tr. at Mr. Lara, who was already legally married to another woman, would visit once or twice a week. Tr. at 45. In spite of his marriage to another woman, Mr. Lara made clear that Ms. Diaz Pineda was in a relationship with him in which she could not leave. Ms. Diaz Pineda testified that at one point, he held her at gun point and forced her to declare that she loved him, forced her to have sexual relations with him, and also prohibited her from using birth control, which resulted in her bearing four of his children in unwanted pregnancies. Tr. at 47, 51. Mr. Lara forced Ms. Diaz Pineda to remain his domestic partner, despite the fact that she wanted to leave him. He threatened her at gunpoint when she told him she was going to leave and also threatened to take her children away from her. Tr. at 47, Mr. Lara told Ms. Diaz Pineda that he would rather see her dead than have her leave him. Tr. at 51. Ms. Diaz Pineda testified that she did attempt on several occasions to flee from Mr. Lara, and on each occasion, he followed her, found her, physically attacked her, and forced her to come back with him. Tr. at Through his actions and words, Mr. Lara made clear that he considered Ms. Diaz Pineda his property and that she was subordinate to him. Ms. Diaz Pineda testified that Mr. Lara referred to her as his property and as she testified that, He said that for me not to think that I could live without him, that he was controlling my life and that he would 4

5 always control my life. Tr. at 60. Mr. Lara exercised complete control over Ms. Diaz Pineda and treated her as an object that he owned. For 10 years Mr. Lara consistently abused Ms. Diaz Pineda both physically and mentally. In the previous hearing, the IJ found that Ms. Diaz-Pineda gave credible and compelling testimony that Mr. Lara has persecuted her by raping her, beating her, threatening to take her children, setting fire to her bed, threatening her person with lethal weapons, forcibly confining her without food for extended periods of time, and preventing her from communicating with her family and neighbors. IJ Decision at 3, 8. In 1999, after Mr. Lara burned her bed, Ms. Diaz Pineda decided the only way to escape Mr. Lara was to come to the United States where her mother resided. Tr. at Ms. Diaz Pineda testified that since she fled Mr. Lara in Honduras, he has made contact with her on several occasions, after which she was forced to change her phone number out of fear. In addition, Ms. Diaz Pineda testified that Mr. Lara also unsuccessfully attempted to come to the US to find her, and called her from Mexico. Tr. at 74. Jose Francisco Lara has shown the ability to find and continue to abuse and threaten Ms. Diaz Pineda with impunity anywhere in Honduras. Honduran law has failed to provide any type of meaningful protection against the verbal, physical, and sexual abuse she suffered at the hands of her companion. Violence against women continues to be the social norm in Honduras. The supporting documentation submitted on Ms. Diaz Pineda s behalf before the IJ clearly demonstrate the lack of political will that existed in Honduras in protecting victims of domestic violence, as the US State Department in 2000 noted that 8 out of every 10 women suffered from domestic violence. See Record of 5

6 Proceedings (ROP), Exhibit (Exh.) 7, Tab H at 20. The current conditions in Honduras have not changed since The US Department of State 2009 Human Rights Report for Honduras states that Violence against women, including systematic killing, occurred throughout the year. See Respondent s Additional Supporting Document (Supp. Docs.), Tab J at 20. In addition, the State Department Report goes on to cite the rise in violence against women noting that the National Violence Observatory at the National Autonomous University reported that through September there were 289 killings of women, compared with 269 reported between January and September Id. III. Argument A. Norma Diaz Pineda has a Well Founded Fear of Persecution on Account of her Membership in a Particular Social Group and her Political Opinion Asylum may be granted to an individual who meets the statutory definition of refugee, which is an individual who is unable or unwilling to return to her native country because of persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group or political opinion. INA 101(a)(42); 8 U.S.C. 1101(a)(42). The persecution must be by the government, or individuals that the government is unable or unwilling to control. The evidence as it stands established that Ms. Diaz Pineda meets the definition of a refugee. She has suffered past persecution and she has a well founded fear of persecution were she forced to return to Honduras because of her membership in a particular social group and her political opinion. The government of Honduras has failed to provide her protection and is unable to control Jose Francisco Lara. 6

7 1. The Violence that Ms. Diaz Pineda suffered is Persecution Although the IJ found that the abuse suffered by Ms. Diaz Pineda did not amount to persecution, the record itself does not support his conclusion. As no universal definition of persecution is found in case law, statute or regulation, the determination as to whether the harm feared rises to the level of persecution is made on a case by case basis with guidance from jurisprudence that is relevant to the case at hand. See Manzoor v. United States Dep t of Justice, 254 F.3d 342, 346 (1st Cir. 2001). The United Nations High Commissioner for Refugees (UNHCR) approaches persecution similarly, in holding that a threat to life or freedom along with other violations of human rights will always constitute persecution. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 51 (1992) [hereinafter UNHCR Procedures Handbook ]. While the UNHCR s findings do not constitute mandatory authority in the present case, it provides guidance in construing the protocol in the manner Congress intended. INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1986). The BIA has defined persecution as a threat to the life or freedom of, or the infliction of suffering upon, those who differ in a way regarded as offensive. Matter of Sanchez and Escobar, 19 I. & N. Dec. 276, 284 (BIA 1985). Any serious human rights violation, including that which is not life threatening, may also constitute persecution. Desir v. Ilchert, 840 F.2d at 729 (9th Cir. 1988). Other types of harm, such as beatings, verbal and sexual abuse has been found to be persecution. See In Re D-V-, Interim Decision 3252 (BIA 1993); Lazo-Majano v. INS, 813 F. 2d 1432 (9 th Cir. 1987). In the case at bar, the abuse that Ms. Diaz-Pineda has suffered clearly rises to the 7

8 level of persecution as contemplated by past jurisprudence. Ms. Diaz-Pineda has testified to extensive mental and physical abuse from the beginning of her relationship with Mr. Lara until she escaped from Honduras in The mental abuse continued despite her departure in the form of death threats to herself and threats to her children over the phone. Ms. Diaz-Pineda testified that her domestic relationship with Mr. Lara began when he raped her at gunpoint. Tr. at 43. Throughout their relationship Ms. Diaz Pineda continued to suffer repeated brutal sexual assaults from Mr. Lara. If she refused, he would beat her. Tr. at 47. In addition, Mr. Lara regularly physically attacked Ms. Diaz Pineda. The record also demonstrates that the abuse she suffered went beyond just physical and sexual assault. Mr. Lara would frequently demean Ms. Diaz Pineda and pronounce that she had no rights and would state that she was not permitted to do anything without his permission. Tr. at 60. Moreover, when Ms. Diaz Pineda attempted to leave fleeing to different parts of Honduras Mr. Lara he would track her down throughout Honduras and force her to return with him though threats of violence and actual violence. Tr. at Mr. Lara stated that no matter where Ms. Diaz Pineda went he would find her and that he would rather see her dead than allow her to leave him. Tr. at 57. The mental and physical abuse detailed above clearly rises to the level of persecution. International law has recognized that domestic violence, typically directed solely at women, can constitute persecution. 1 See UNHCR, Guidelines on International Protection: Gender-Related Persecution Within the Context of Article 1A(2) of the See e.g., discussion in Pamela Goldberg, Anyplace But Home: Asylum in the U.S. for Women Fleeing Intimate Violence, 26 CORNELL INT L L. J. 565 (1993); R. Copelon, Recognizing the Egregious in the Everyday: Domestic Violence as Torture, 25 COLUMBIA HUM. RTS. L. REV. 291 (1994); Isabel Marcus, Reframing Domestic Violence: Terrorism in the Home, in THE NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE 11 (Martha Albertson & Roxanne Mykitiuk, eds., 1994). 8

9 Convention and/or its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/01/01, May 7, Moreover, the INS, in its Guidelines, also recognizes that female applicants can present gender-specific claims. See Phyllis Coven, U.S. Dept. of Justice: Considerations for Asylum Officers Adjudicating Asylum Claims from Women 1 (1995) [hereinafter INS Gender Guidelines ]. According to the INS Gender Guidelines, persecution inflicted on women often takes gender-specific forms, including sexual abuse, rape, infanticide, genital mutilation, forced marriage, slavery, domestic violence, and forced abortion. Id. at 9. The INS Gender Guidelines also provide that a woman may present a claim that may be analyzed and approved under one or more grounds. Id. at 4. From a review of the Record of Proceedings, it becomes clear that the IJ erred in finding that the abuse and violence and Ms. Diaz Pineda suffered was not persecution. The IJ determined that Ms. Diaz Pineda s testimony was credible and consistent. The abuse that she testified to clearly rises to the level of persecution as defined by US and international law. 2. Ms. Diaz Pineda has suffered persecution on account of her membership in a particular social group An applicant may qualify for asylum or withholding if the persecution she suffered was on account of her membership in a particular social group. The Supreme Court has held that there must be evidence that the persecutor seeks to harm the victim on account of the victim s possession of the characteristic at issue (membership in a particular social group). INS v. Elias-Zacarias, 502 U.S. at 482; 112 S. Ct at 816. In determining whether or not a particular social group exists, the BIA first adopted the immutable characteristic test. Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985). In its 9

10 well-known case addressing membership in a particular social group, Matter of Acosta, the BIA defined a social group as persons who share a common, immutable characteristic that is, a characteristic so fundamental to the member s nature that they should not be required to change it. Immutable characteristics are common traits such as sex, color, kinship or in some cases shared past experiences. Matter of Acosta, 19 I & N Dec. 211, (BIA 1985). The particular type of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is so fundamental to their individual identities or consciences. Id. at 233. Ms. Diaz Pineda satisfies the Acosta standard for persecution based on membership in a particular social group because the most common and immutable characteristic of the group in which the Respondent belongs is gender. Gender is clearly an immutable trait described in Acosta. 19 I. & N. Dec. at 211. Federal courts have also recognized that gender can define a particular social group. See Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993). Ms. Diaz Pineda has suffered persecution on account of her membership in two particular social groups as defined by gender: (1) Honduran women in domestic relationships who are unable to leave, and (2) Honduran women who are viewed as property by virtue of their positions within a domestic relationship. In her testimony, Ms. Diaz Pineda stated that she had tried to leave her domestic relationship with Mr. Lara on several occasions. Each time she tried, he would not allow it. Mr. Lara viewed Ms. Diaz Pineda as his woman and clearly stated his intentions that he would rather kill her than allow her to leave their domestic relationship. Tr. at

11 Ms. Diaz Pineda s testimony also reflects her subordinate position in the domestic relationship with Mr. Lara. He wielded his male privilege over Ms. Diaz Pineda and also enforced his dominant role through physical violence and repeated sexual assaults. The social, economic, and legal constraints which recognized the relationship between Ms, Diaz Pineda and Mr. Lara made it impossible for Ms. Diaz to leave the domestic relationship. See Supp. Docs. Tab J at 21; Tab K at 95. Although Mr. Lara had raped her, Ms. Diaz Pineda hid this fact, due to shame. Her shared children with Mr. Lara allowed him to have increased control over her actions as he continually threatened to take them away. Tr. at 44, 56. Finally, it is unlikely that any separation, legal or otherwise, would be recognized Mr. Lara or enforced by the Honduran government. When Ms. Diaz Pineda was raped and impregnated by Mr. Lara, she entered into a subordinate role in a domestic relationship with him, that she can never leave. This relationship was different than any other that Ms. Diaz Pineda had ever had, as she cannot leave it. She testified that she had been in two previous domestic relationships in which she was not subordinate to her male partner and was able to freely leave when she chose. Like gender the family relationship has also been a basis for identifying a particular social group. See Gebremichael v. INS, F.3d 28, 36 (1st Cir. 1993); see also Sanchez-Trujillo v. INS, 801 F.2d 1571, 1574 (9th Cir. 1986) ( prototypical example of a particular social group would consist of the immediate members of a certain family, the family being a focus of fundamental affiliation concerns and common interests for most people ); In re C-A-, 23 I&N Dec. 951, 959 (BIA 2006) ( social groups based on innate characteristics such as... family relationship are generally easily recognizable and 11

12 understood by others to constitute social groups ). While an individual s relationship status is not generally an inherently immutable characteristic, it can constitute an immutable trait dependent upon specific circumstances, such as the dominance of a domestic partner who will not allow one to leave, as exists in the case at bar. Mr. Lara took, what should normally be a consensual relationship between two adults and transformed it into one that was immutable. He was able to do this because no person or authority in Honduras could protect, or was willing to protect, Ms. Diaz Pineda. Each time she attempted to leave, she was tracked down by Mr. Lara, threatened and brutally beaten. In this manner, Ms. Diaz Pineda s nationality became a defining characteristic of her social group. Nationality is the limiting and contextualizing factor to the characteristics of gender and marital status and is a recognition that a visible membership in a social group is not determined abstractly, but instead in the context of particular countries, societies and cultures. See Karen Musalo, Brief on Behalf of Rodi Alvarado Pena to the Attorney General of the United States at 14. The Department of Homeland Security (DHS) has also stated its opinion that, marital status is immutable in a given society as well. A woman cannot be expected to change her marital status to avoid persecution if there exists significant legal, social, or cultural constraints to doing so, or if evidence exists that the husband would not recognize divorce or separation as ending the relationship. See Joel D. Whitley, et. al. In Re R-A-, DHS Position on Respondent s Eligibility for Relief at 20. Moreover, this position has also been expanded by DHS to include not only legal martial relationships, but also domestic relationships in which a consensual relationship is transformed into an immutable one. See David A. Martin, Principal Deputy General Counsel for DHS, In Re 12

13 L-R-, Department of Homeland Security s Supplemental Brief at (It is possible to define a social group of individuals who share a trait in that they are in domestic relationships they cannot leave and who suffered abuse due to a persecutor s perception that they are subordinate within that relationship.) In In Re R-A-, the BIA outlined two additional defining factors for social group membership beyond the immutable or fundamental individual characteristics articulated in Acosta. First, whether the group is identified by the applicant s society as a subdivision of society and second, whether the shared trait is important within the society, such that it is more likely that a distinction will be drawn in the society between those who share the trait and those who do not. R-A-, 22 I & N Dec. 906, 918. Ms. Diaz Pineda was targeted for abuse by Mr. Lara based on his perception that she was subordinate to him in their relationship her membership in a particular social group. She was his woman and as such he could do what he wanted to her. The record clearly reflects that that Mr. Lara did not view Ms. Diaz Pineda as an equal partner, but instead as someone of lesser value who had to submit to his will. Tr. at 44. His repeated sexual and physical assaults of her were due to his perception that her life had lesser value and that he could continue to harm her without interference or reprisal. Despite his marriage to another woman, Honduran society accepted his domestic relationship with Ms. Diaz Pineda as they shared children and because he dictated that their relationship was a valid one. Supp. Docs. Tab J at Mr. Lara went so far as to assert that he could take Ms. Diaz Pineda s life if she ever left him. Tr. at 51. Ms. Diaz Pineda was unable to leave her domestic relationship with Mr. Lara as he believes that only he has the right to keep her and abuse her. The laws of Honduras 13

14 did little, and continue to do little, to disabuse Mr. Lara of this perception. Supp. Docs., Tab J at Ms. Diaz testified that she did not call the police because she knew that she would receive little or no protection. Tr. at 61. Moreover, Mr. Lara threatened to kill her if she did report him to the police as the authorities would not be able to hold him for very long. Id.; see also Supp. Docs. Tab J at 20. In addition, when Ms. Diaz Pineda sought guidance from a priest at her church as to the violence she was suffering from, she was advised that she should talk to him and tell him to come to church. Tr. at 70. Because society viewed Ms. Diaz Pineda as Mr. Lara s domestic partner and the mother of his children, it distinguished her from other women and also dictated that she remain with Mr. Lara. The social and political constructs of Honduran society demand that women play a role that is subordinated to their male counterparts. Changes in laws, which cite the equality of men and women and provide protection against domestic violence, are more often than not, superficial, as they are poorly implemented, and their ideals are not commonly shared by the general society. Supp. Docs. Tab J at 62, Ms. Diaz Pineda has suffered persecution on account of her political opinion An individual qualifies for asylum if she fears persecution based on her political opinion. INA 101(a)(42); 8 U.S.C. 1101(a)(42). To establish a political opinion generally an applicant must prove, by direct or circumstantial evidence that his or her conduct was a form of expressive conduct constituting a statement of political opinion. 2 Contributing to the violence is a group of participants and institutions, private and public, as we ll as social and political the family, the church, the neighborhood and the media, among others. All of whom to varying degrees, have promoted the submission of women and violence against the,. It is customary to call upon certain cultural practices and traditions in order to explain or excuse the violence. Violence Against Women in Honduras: A Continuing Path of Reflection, Centro de Derecho de Mujeres. 14

15 See INS v. Elias Zacarias, 502 U.S. 478, 481 (1992). The Court emphasized that persecution on account of political opinion is persecution on account of the victim s political opinion, not the persecutor s. Id. at 482. Ms. Diaz Pineda believes that women should not have to live under the dominance of men. She has expressed this political opinion verbally and through her actions trying to escape Mr. Lara s dominance and has been persecuted on account of her opinion and her expression of that opinion. U.S. law has explicitly recognized that a woman s belief that she is not subordinate to men in a political opinion. The Ninth Circuit in Lazo-Mejano v. INS granted the Salvadoran applicant asylum primarily based on political opinion principles. 813 F.2d 1432 (9 th Cir. 1987). The court found that the applicant, who has resisted sexual violence perpetrated against her by her employer, was expressing a political opinion. The court found that the applicant was not permitted to hold an opinion [contrary to her employer s]. When by flight, she asserted one, she became exposed to persecution for her assertion. Id. at In the context of Salvadoran society, her refusal to accept her aggressor s opinion was tantamount to a political opinion for which she was persecuted. The Fifth Circuit in Rivas-Martinez interpreted the Supreme Court s holding in Elias-Zacarias in a manner that emphasized the need to evaluate whether the applicant held a political opinion or engaged in political conduct within the context of the applicant s social and political reality. See Rivas-Martinez v. INS, 997 F.2d at 1147 (5th Cir. 1993). In Rivas-Martinez, the Fifth Circuit considered the expression of political opinion in a case in which the asylum applicant never explicitly articulated her political opinion to her persecutors. The Fifth Circuit ruled that the BIA had imposed an 15

16 unrealistic requirement on entitlement to asylum by requiring an alien to foolhardily court death by informing armed guerillas to their faces that she detests them or their actions or ideologies. Rivas, 997 F.2d at The Fifth Circuit went on to imply that a common sense approach to the political opinion inquiry revealed that an applicant s mere acts or conduct ( working for the opposition, affiliation of her family members with the government ) could constitute a political opinion. See Id. at Finally, the Fifth Circuit criticized the BIA for evaluating evidence of political opinion and motivation in a way which ignored reality in general and reasonable human behavior in particular. Id. at Rivas-Martinez s emphasis on the need to consider the relevant political and social context in adjudicating asylum cases is consistent with earlier Fifth Circuit decisions. For example, in Coriolan v. INS, the Fifth Circuit warned adjudicators not to assume that political expression is limited to conventionally political action. 559 F.2d 993, 1000 (5 th Cir. 1977). The court explained that in the context of Duvalier s Haiti, [i]t may be, in fact, that Haitian citizens can become the focus of persecution without ever taking any conventionally political action at all. Id. at The court cautioned against making unfounded assumptions that people without overt political activity, or minority political opinions, are unlikely to be the victims of political persecution. Id. In In Re R-A-, the BIA interpreted the term political in a manner that did not take into account the applicant s particular circumstances. The BIA did not define or discuss what constitutes political opinion but simply concluded that the applicant did not hold one. See In Re R-A-, at 915. This conclusion fails to consider 16

17 what constitutes an expression of a political opinion in the context of both domestic violence and the applicant s home country. In R-A-, the BIA rejected the idea that the applicant held a political opinion because she did not articulate her views or actions as being political. It also found no evidence in the record that the applicant s husband imputed a political belief to her from her acts of resistance. Id. As noted in the Fifth Circuit, adjudication of an asylum claim may not accord undue weight to the apparent absence of an explicit enunciation of political opinion by the victim. See, e.g., Rivas-Martinez v. INS, 997 F.2d at 1143 (5th Cir. 1993). The BIA s rigid interpretation of political opinion and imputed political opinion contradicts both the plain meaning of political and the Fifth Circuit s mandate to consider the social and political realities of an asylum applicant s circumstances. Viewed in the political and social reality of domestic violence in Honduras, Ms. Diaz Pineda expressed a political opinion and engaged in conduct that her persecutor perceived to be political. Mr. Lara believed that as he was the man, that he was the one who controlled all aspects of the domestic relationship which is consistent with the social norms in Honduras. See Supp. Docs. Tab J at 20-21, 60-63, Tab K at 95. Ms. Diaz Pineda endured increased physical, sexual, emotional, and verbal abuse when she challenged Mr. Lara s authority. For example, when she refused to have sexual relations with him, he beat her raped her and threatened to kill her. Tr. at Mr. Lara would not allow Ms. Diaz Pineda to control her own body and repeatedly raped her. She took birth control pills so as not to become impregnated by Mr. Lara, but when he discovered this he threatened to kill her with a knife if she continued to take her birth control pills. Id. at As a result, she gave birth to four children fathered by Mr. Lara. On several 17

18 occasions Ms. Diaz Pineda attempted to assert her opinion that she should not have to live under Mr. Lara s control and domination and fled from him. She went to various different areas in Honduras to escape him. Each time, Mr. Lara hunted her down, beat her, and forced her to return with him. Tr. at Ms. Diaz Pineda s final act of manifesting her independence against Mr. Lara was to leave him and come to the US, in spite of his threats against harming her. By leaving Honduras and Mr. Lara, Ms. Diaz Pineda, asserted that she wanted a life without violence. Through her actions, both verbal and nonverbal, Ms. Diaz Pineda was not simply expressing a human desire not to be harmed, but was rather stating that she would actively oppose Mr. Lara s view that she was subordinate to him and should remain obedient to him in their relationship. See Lozano-Mejano v. INS, 813 F.2d 1432 (9th Cir. 1987) (ruling that the belief that a woman has the right not to be dominated by a man constitutes a political opinion, even though that domination may be expressed in a oneon-one context). Ms. Diaz Pineda s claim should be evaluated within the context of the social and political realities of women in Honduras who defy the authority of their dominant domestic partners and are persecuted for such actions. 4. The Honduran Government is unable or unwilling to Provide Protection to Ms. Diaz Pineda Inherent in meaning of persecution is the principle that harm to the applicant was either inflicted by the government of her country of nationality or by persons or an organization that the government was unable or unwilling to control. Matter of Acosta, 19 I. & N. Dec. at ; In re Fauziya Kasinga, Applicant, 21 I. & N. Dec. 357, Interim Decision (BIA 1996). 18

19 It is necessary to analyze the facts of Ms. Diaz-Pineda s case against the social and cultural context of Honduran society in the 1990s and today. As late as 1994, the United Nations High Commissioner for Refugees reported that sexual assault against a woman 12 years of age or older was considered a private matter in Honduras. See ROP Tab G, Document 1. The police did not intervene. Even where a woman was able to afford a lawyer and brought a private suit for sexual assault or abuse, the police, legislators, and society accorded very little importance to conjugal violence until and unless it caused serious injury or death. Id. Testimony in suits brought by victims tended to focus on the woman s age, her decency, and good reputation. Mitigating circumstances, as well as evidence that suggested the abuse was the woman s fault, were considered by the courts. Penalties imposed for domestic violence tended to be of short duration. Id. Legislation that existed as of 1994 provided very little protection to women from conjugal violence. Although spousal rape is criminalized under the current Honduran law, its prosecution is only on a case-by case basis and is not considered a public crime. Supp. Docs. At 20. In 1995, the Honduran government created a Special Prosecuting Attorney s Office for Women. However, the courts did not respond well when prosecutors tried to present complaints involving domestic abuse. See ROP Tab G, Document 4. Judges resisted having domestic violence cases heard. Unless a woman has already suffered severe physical injury or death, cases often took as long as five months to be heard. Id. There has been little evidence that the special prosecutor s office has played a significant role in protecting victims or deterring domestic abuse. The current day Honduran government has been, and continues to be, as 19

20 ineffective at providing help to abused women as it has been at prosecuting their abusers. While the Honduran government has passed new laws against domestic violence, practice has shown these laws to be poorly implemented, if implemented at all. Problems related to the application of the [domestic violence] law exist due to the attitude of both police officer and magistrates as well as, more broadly, to the inefficient administration of justice. Police officers tend not to apply protection mechanisms in urgent cases. Supp. Docs, Tab J at Despite programs and laws designed to curb domestic violence in Honduras, little has changed to ensure women s safety from violence by their husbands or domestic partners. Id. at 35. The 2006 US State Department Country Report on Human Rights Practices in Honduras, demonstrates that the 1997 Law Against Domestic Violence, which was intended to strengthen the rights of women and increase the penalties for crimes of domestic violence has not done so. In practice the law does not impose any fines, and the only sanctions are community service and 24-hour preventive detention if the aggressor is caught in the act. The current situation has not markedly improved. The 2010 US State Department Country Report on Human Rights Practices in Honduras states that: Violence against women, including systematic killing, occurred throughout the year. The law criminalizes domestic violence with between two and four years imprisonment. The only legal sanctions for lesser forms of domestic abuse are community service and 24- hour preventative detention if the violator is caught in the act The National Violence Observatory at the National Autonomous University reported that through September there were 289 killings of women, compared with 269 reported between January and September Supp. Docs. Tab J at 20. The Honduran legislature passed a law against domestic violence in September Despite the new law, the Honduran government has proven ineffective and 20

21 incapable of protecting women. The dearth of government assistance becomes especially apparent when one moves from the abstract policy pronouncements of the Honduran government in Tegucigalpa to the daily life of an abused Honduran woman outside the capital city. A woman who suffers domestic abuse needs reasonably prompt, meaningful responses from the government a criminal justice system that will investigate and prosecute her abuser promptly and issue the orders or injunctions necessary to protect the victim; a reasonably nearby center to provide counseling and advice, both legal and medical; and a safe shelter with space available so that she can leave her home if necessary to protect her own life. Honduran women can expect none of these things. Supp. Docs. Tab J at The police have traditionally been reluctant to intervene. Prosecutors are reluctant to bring the cases until a woman is severely injured or killed. Even when a woman reports abuse, her case remains pending for months ample time for the abuser to learn he has been reported and exact revenge on her. Id. The decision in In re R-A- is instructive with respect to the state action element in the present case. In that case the Immigration Judge concluded that the Guatemalan Government was either unwilling or unable to control the respondent's husband, who had severely abused her. On appeal, the BIA did not disturb this aspect of the Immigration Judge s holding. It is important to note the evidence upon which the Immigration Judge based his conclusion that the country conditions in Guatemala lent themselves to the abuse that Ms. Alvarado Peña suffered. There was testimony that spousal abuse is common in Latin American countries. Ms. Alvarado Peña presented evidence that Guatemala had laws against domestic violence, that it had taken some additional steps 21

22 recently to begin to address the problem, and that "functionaries" in the legal system tended to view domestic violence as a violation of women's rights. Nevertheless, the evidence indicated that Guatemalan society still tended to view domestic violence as a family matter, that women were often not aware of available legal avenues, and that the pursuit of legal remedies could often prove ineffective. The facts with respect to state action in the present case are closely analogous to those in In re R-A-. Honduras is a Central American country with the same cultural trappings of machismo and domestic abuse as exists in Guatemala. Like Guatemala, Honduran society has traditionally viewed domestic abuse as a family matter into which police, prosecutors, and legislators were reluctant to intervene. Like Guatemala, Honduras has taken some steps in recent years to respond to pervasive domestic abuse, and there are undoubtedly members of the human rights commission in the capital city who view domestic abuse as a violation of women s rights. However, as in Guatemala, a large percentage of the female population perhaps as high as 80 percent continues to suffer from domestic abuse, and most of these cases go unreported. The government s response has been grossly inadequate to combat the cultural forces that perpetuate violence against women. Formal legislation and token financial support for aid agencies is not evidence that the State is willing or able to offer a citizen like Ms. Diaz-Pineda protection from her abuser. The existence of legislation does not necessarily entail their enforcement or a change in societal attitude. Aguirre-Cervantes is also instructive on the subject of state action. See Aguirre- Cervantes v. INS, 242 F.3d at In that case, the respondent testified that she was not aware of social services or shelters that would have been available to her and that she did 22

23 not believe the police would have helped her even if she had been able to contact them. She testified that she knew of two daughters whose father had physically and sexually abused them, and that when they contacted the police they received little help and the father continued to abuse them. Id. at The facts of Ms. Diaz Pineda s case are strikingly similar to those in Aguirre Cervantes with respect to the issue of seeking help from the authorities. Like the victim of abuse in Aguirre-Cervantes, Ms. Diaz Pineda was not aware of social services or shelters available to her. Tr. at In practical terms there were no shelters available to her they do not exist in Yoro, Punta Acote, Trojas, Tela, or San Pedro. Ms. Diaz Pineda was unaware that a shelter existed in Tegucigalpa, which in any case was eight hours by car from her town. Even if she had known about the shelter in Tegucigalpa, at the time she would have been vying for one of ten spaces there with thousands of other battered women. Currently she would be vying for one of twenty spaces there with thousands of other battered women. Like the victim in Aguirre-Cervantes, Ms. Diaz Pineda did not believe that reporting her situation to the police would have helped, and in fact believed that such a report would expose her to greater risk. Among those who knew she was being abused her stepfather, stepmother, mother, two friends, an aunt, and a neighbor no one recommended that she go to the police. Ms. Diaz Pineda s mother could relate stories of women who had suffered abuse but had never reported it to the police because they would not intervene. Ms. Diaz Pineda believed that the police would not help, and that, even if her abuser were to be fined or imprisoned, she would have to deal with him when he got out of jail. Exacerbating her fear of going to the authorities were the death threats she received from Mr. Lara. He threatened her that if she ever reported him to the police 23

24 he would kill her when he got out of jail. Tr. at 61. Mr. Lara also told her that the government would not listen to complaints from her because they were not legally married. He claimed that he could do anything he wanted with her because she had no status in society as his woman. See ROP Exh. 7, at Tab B. Statements like these contributed to Ms. Diaz-Pineda s sense that it would be futile to appeal to the authorities. B. Ms. Diaz Pineda Has Suffered Past Persecution and Has Established a Well-Founded Fear of Future Persecution As Ms. Diaz Pineda has already demonstrated that she has suffered past persecution on account of a protected ground, she is entitled to a presumption of wellfounded fear of future persecution. A victim of past persecution is entitled to a presumption of well-founded fear of future persecution unless DHS can show by a preponderance of evidence that, (1) circumstances have fundamentally changed within his country, or (2) the applicant could reasonably be expected to safely relocate within her country. 8 CFR (b)(1). In this case, DHS cannot overcome its burden and Ms. Diaz Pineda cannot be reasonably expected to be relocated safely within Honduras, so she is eligible for asylum based on her presumptive well-founded fear of future persecution. 1. The Government cannot overcome its burden in proving that country conditions have fundamentally changed for the better in Honduras for Ms. Diaz Pineda As discussed supra, the existing domestic violence laws in Honduras are not fully enforced making them largely ineffective. The Honduran government cannot protect Ms. Diaz Pineda. DHS cannot meet its burden in proving that country conditions have fundamentally changed for the better in Honduras. The Centro de Derechos de Mujeres in Tegucigalpa Honduras found that: 24

25 [t]he State, the entity responsible for preventing that, handling, and penalizing violence against women, has positioned itself, by virtue of its own weak actions, to superficially resolving the concrete facts of violence and has dedicated few resources to its prevention or causes. The State s weak political will is evident in its attention to this problem. Supp. Docs. Tab J at 62. Despite anti-domestic violence laws, which could offer increased protection for women in Honduras, the overriding societal belief persists that violence against women is acceptable. Id. at 60. This indicates that no substantial protection will ever be afforded to women in Honduras without a change within the entire Honduran society about the traditional view of the family and the role of women as subordinate and therefore subject to the authority of their husbands. The lax punishments and remedies for domestic violence in Honduras demonstrate that women make up a segment of society that will not easily be afforded protection. The acts of the government and a society as a whole of failing to adequately protect married women as opposed to other types of individuals shows that not only is the trait of being a married women important in society, but that those in the society are aware of the distinguishing traits of married women and actively draw those distinctions in deciding who receives aid and protection. R-A- at Ms. Diaz Pineda Could Not Reasonably be Expected to Safely Relocate In Honduras Even if an asylum applicant otherwise proves both past persecution and a wellfounded fear of future persecution she may not qualify for asylum. 8 C.F.R (b)(2)(C)(ii). DHS may still show that the applicant could avoid the type of persecution feared by relocating internally within their home country. Id. Internal relocation must be reasonable given the applicant s situation. Id. Determinations as to whether the applicant s internal relocation is reasonable include consideration of logistical or financial barriers as well as circumstances that fail to satisfy civil, political, 25

26 and socioeconomic human rights norms or place the refugee in illusory or unpredictable situations. In Re A-E-M-, 21 I. & N. Dec. 1157, 1177 (BIA 1998)(Rosenberg, L., dissenting). The record clearly reflects the numerous attempts that Ms. Diaz Pineda made to relocate to another part of Honduras. In 1992, 1993, and 1995, Ms. Diaz Pineda left Mr. Lara and moved to different city to escape him. Each time, Mr. Lara tracked her down and forced her to return with him. Tr. at 55-60; ROP Exh. 7, Tab B at 4-5. For Ms. Diaz Pineda, relocation within Honduras is not reasonable or possible. She has attempted to do so in the past and each time Mr. Lara has hunted her down and found her. Honduras is a small country covering less than 112,000 square kilometers. Women constitute 60% of the unemployed in Honduras. The 2010 U.S. State Department Country Report on Human Rights Practices in Honduras states that the most employed women worked in lower status and lower paid informal occupations, such as domestic service, without legal protections or regulations. Supp. Docs. Tab J at 20. The economic situation for women in Honduras almost guarantees that the Respondent would not be able to economically survive with her children while also trying to evade her spouse. C. Ms. Diaz Pineda has Established a Reasonable Fear of Future Persecution if She is Returned to Honduras Although entitled to a presumption that she would face future persecution upon return to Honduras based on past persecution, Ms. Diaz Pineda can also independently establish a solid ground for fearing serious harm at the hands of Mr. Lara on account of a protected ground. Ms. Diaz Pineda can establish this well-founded fear by showing that: 26

27 1) She possesses a belief or characteristic a persecutor seeks to overcome by means of punishment by some sort; 2) The persecutor is already aware or could become aware that the applicant possesses this belief or characteristic; 3) The persecutor is capable of punishing the applicant; and 4) The persecutor has the inclination to punish the applicant. Matter of Mogharrabi, 19 I&N Dec. 439, 446 (BIA 1987). Ms. Diaz meets all of these requirements and can demonstrate an independent well founded fear of persecution. Mr. Lara remains in Honduras and remains a threat to Ms. Diaz Pineda. Even now, he continues to try and locate her. Ms. Diaz Pineda has had to change her cellular phone number numerous times, as Mr. Lara has managed to locate her number and call and threaten her in the US. Mr. Lara is incapable of allowing Ms. Diaz Pineda to live in peace without him and seems determined to harm her because he believes that he has the right to do so. He views her as his and has asserted through his actions and words that he would rather see her dead than living independently without him. A well-founded fear is independently established where: (1) the applicant is afraid of being persecuted on the basis of a protected ground, (2) there is a reasonable possibility such persecution will occur upon return, and (3) the applicant is unable or unwilling to avail herself of the protection of the Honduran government. 8 C.F.R (b)(2)(i) (2001). Ms. Diaz Pineda demonstrates her well-founded fear of future persecution using this standard. For the first factor, Ms. Diaz Pineda has unequivocally stated that she is afraid of being persecuted because of she is unable to escape the domestic relationship that she has with Mr. Lara and her subordinate position in that 27

28 relationship. In addition, she is afraid of being persecuted because of her political opinion that she should not have to live subordinate to Mr. Lara because of her gender. To meet the second factor, an asylum seeker should show that a reasonable person in the same circumstances would fear persecution if compelled to return to her country of origin. Mikhael v. INS, 115 F.3d 299, 304 (5th Cir. 1997); see also Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994); Castillo-Rodriguez v. INS, 929 F.2d 181, 184 (5th Cir. 1991). In Ms. Diaz Pineda s situation, a reasonable person could do nothing but expect death in Honduras. Having been threatened with death, beaten, sexually assaulted, locked in a room, and threatened with a machete and a pistol, and tracked down everywhere she went, Ms. Diaz Pineda has shown that her fear of further persecution is objectively reasonable and sincere. See Mikhael, 115 F.3d at 304. It has been well established that one can certainly have a well-founded fear of [persecution] when there is less than a 50% chance of the occurrence taking place. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). Even a slight, though discernible, chance of persecution upon return to an applicant s native country satisfies the requirement to show a well-founded fear of persecution. See Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000) (citing Cardoza-Fonseca, 480 U.S. at 431). The documentary evidence presented in support of Ms. Diaz Pineda s case only reinforces that there is more than a slight, though discernible, chance of persecution upon return to Honduras. Forcing Ms. Diaz Pineda to return to Honduras would be a death sentence for her. For all of these reasons, the Court should find that Ms. Diaz Pineda has a wellfounded fear of future persecution, and grant her asylum. 28