Advanced Asylum Workshop

Transcription

1 Advanced Asylum Workshop justice AmeriCorps Training Potomac, Maryland January 10, 2017 Christine Lin Senior Staff Attorney, Center for Gender & Refugee Studies (CGRS) Managing Attorney, CGRS-California Cyndi Tyler Former justice AmeriCorps Fellow Bay Area Legal Incubator, solo attorney

2 Contents 1. Survey 2. Asylum Overview 3. Domestic Violence Claims 4. Child Abuse Claims 5. Gang-Based Claims 6. Case Examples 7. Questions & Answers 8. Resources

3 Asylum Overview

4 Asylum is available to a refugee defined under U.S. law as: Any person who is outside any country of such person s nationality... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. - 8 U.S.C. 1101(a)(42)

5 Asylum: Legal Elements Past persecution OR well-founded fear of persecution Nexus ( on account of ) Protected Ground Race, Religion, Nationality, Membership in a particular social group (PSG), or Political opinion Committed by government OR someone the government is unwilling or unable to control Internal relocation in-country not reasonable No bars to eligibility

6 Bars and UACs NOT Applicable to UACs Safe third country bar One-year filing deadline UACs exempt time of entry vs. time of filing Non-UAC children under legal disability (extraordinary circumstance?) Bars should be evaluated considering child s individual culpability, developmental stage, and factors that may negate culpability, such as duress, coercion, self-defense Applicable to UACs Previous asylum application denial (absent change in circumstances) Persecutor of others Particular serious crime/aggravated felony Serious nonpolitical crime National security Terrorism Firm Resettlement

7 Humanitarian Asylum CANNOT be granted just because case is compelling Only available when all past persecution elements are met, but future fear has been rebutted Must demonstrate, 8 C.F.R (b)(1)(B)(iii): Compelling reasons for being unwilling/unable to return due to severity of past persecution Matter of Chen, 20 I.&N. Dec. 16 (BIA 1989); Matter of S-A-K- and H- A-H, 24 I.&N. Dec. 464 (BIA 2008) (FGM) OR A reasonable possibility of other serious harm upon removal No nexus required Other serious harm = persecution; Matter of L-S-, 25 I.&N. Dec. 705 (BIA 2012)

8 Domestic Violence Claims

9 Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014) Facts Married Guatemalan woman suffered extreme violence/death threats from her husband Tried to leave but he found her and threatened to kill her Police refused to help her because they would not get involved in a marital relationship Holding PSG = married women in Guatemala who are unable to leave their relationship

10 Post-A-R-C-G- Interpretive Issues 1. Has been extended to women fleeing DV in countries other than Guatemala 2. Has been extended to women who were not formally married to their abusers BUT, mixed on whether domestic relationships is a sufficiently particular term 3. Confusion over what it means to be unable to leave Should consider whether norms set expectation women will stay; AND Whether, even if woman leaves, abuser would recognize her leaving as ending his right to abuse

11 Negative Case Law Post-ARCG Vega-Ayala v. Lynch, 833 F.3d 34 (1st Cir. 2016)(distinguishes ARCG and finds Salvadoran women in intimate relationships with partners who view them as property not immutable or socially distinct) Marikisi v. Lynch, F.3d, 2016 WL (6th Cir. Oct. 20, 2016)(distinguishes case from ARCG and finds applicant failed to prove that she could not leave relationship or that she could not relocate to another part of Zimbabwe) 11

12 Post-A-R-C-G- PSG Approach Gender + Nationality + Relationship Status + Other immutable characteristics Married women in [country X] who are unable to leave their relationship [Nationality] women in domestic relationships who are unable to leave [Nationality] women who are viewed as property by virtue of their positions within a domestic relationship Other: ethnicity, partner s status as police officer or gang member, fundamental belief, etc.

13 Successful Gender-Based Children PSGs [Nationality] girls unable to leave the familial relationship [Nationality] girls viewed as property in a domestic relationship Hui v. Holder, 769 F.3d 984 (8th Cir. 2014)( Chinese daughters viewed as property by virtue of their position within a domestic relationship ) Children of [nationality] women in domestic relationships they are unable to leave Family-based (e.g., female children in the x family, females in the x family) Female/LGBT children... Female/LGBT children on their own Female/LGBT orphans Adopted female/lgbt children or female/lgbt stepchildren Indigenous girls/lgbt children Female/LGBT children born out of wedlock, perceived as illegitimate, or with contested paternity 13

14 Other Protected Grounds Political opinion (e.g. feminism) Fatin v. INS, 12 F.3d 1233, 1242 (3d Cir. 1993) ( we have little doubt that feminism qualifies as a political opinion ); cf. Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) Religion (e.g. resisting assigned gender roles) Matter of S-A-, 22 I&N Dec (BIA 2000) Race/Ethnicity (e.g. indigenous) Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000)

15 Sexual Violence Against Non-Intimate Partners Matter of D-V-, 21 I&N Dec. 77 (BIA 1993) (activist member of pro- Aristide church group who was gang-raped by soldiers because of political opinion and religion had WFF) Uwais v. U.S. Atty. Gen., 478 F.3d 513 (2d Cir. 2007)(Sri Lankan police officer detained, sexually assaulted, beat and attempted to rape applicant because of Tamil ethnicity and imputed political opinion that she supported the Tamil Tigers) Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003)(remanding CAT claim based upon rape of soldiers and consideration of asylum based upon applicant s tribal identity) 15

16 Sexual Violence Against Non-Intimate Partners Marynenka v. Holder, 592 F.3d 594 (4th Cir. 2010)(remanding due to IJ error rape by 4 police officers for political opinion, membership in Belarusian youth organization opposing the government) Angoucheva v. INS, 106 F.3d 781 (7th Cir. 1997)(remanding to determine if woman singled out and targeted for attempted rape because of political activities) Nakibuka v. Gonzales, 421 F.3d 473 (7th Cir. 2005)(soldiers threatened to rape and kill housekeeper employed by politically active family opposing governing regime in Uganda - political opinion/imputed political opinion) Ndonyi v. Mukasey, 541 F.3d 702 (7th Cir. 2008)(remanding to consider whether multiple arrests, severe beatings, and violent rape may have been motivated in part by political opinion and religion) 16

17 Sexual Violence Against Non-Intimate Partners Lopez-Galarza v. INS, 99 F.3d 954 (9th Cir. 1996)(rape by Sandinista military officers due to suspected political beliefs against Sandanista regime) Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000)(rape motivated by applicant s Amharic ethnicity) Garcia-Martinez v. Ashcroft, 371 F.3d 1066 (9th Cir. 2004)(remand to consider whether rape by Guatemalan soldiers motivated in part by imputed political opinion because applicant s brother had been forcibly conscripted by guerillas) Ali v. Ashcroft, 394 F.3d 780 (9th Cir. 2005)(gang-rape by 3 armed men due to political opinion persecutors believed applicant to hold and clan membership) Silaya v. Mukasey, 524 F.3d 1066 (9th Cir. 2008)(targeted for rape because persecutors imputed political opinion of father to applicant) 17

18 CHILD ABUSE CLAIMS

19 Child-Centered Asylum Standards Child-sensitive analysis is one that: (1) takes into account a child s age, maturity, and development; (2) recognizes that children are active subjects of rights and that they are particularly vulnerable to certain types of harm; (3) applies relaxed requirements with regard to the elements of the refugee definition; and (4) grants children the liberal benefit of the doubt when assessing whether the evidence establishes the elements of the refugee definition Child-sensitive analysis applies to all elements!

20 Social Groups in Child Abuse Cases Defined by age/childhood/youth status + Nationality Gender Family Ethnicity Disability or mental illness Lack of adult supervision or parental protection Sexual orientation Gender identity Street children Sub-groups of children (e.g. orphans, stepchildren) Inability to leave familial relationship *AVOID circular PSGs (e.g. abused children, child victim of abuse)

21 Successful Child PSGs [Nationality] children unable to leave the familial relationship [Nationality] children viewed as property in a domestic relationship Children of [nationality] women in domestic relationships they are unable to leave Family-based Female children... Children on their own Disability-based Orphans Adopted children or stepchildren Indigenous children LGBT children Children born out of wedlock, perceived as illegitimate, or with contested paternity

22 Children and Nexus Challenges Can be especially challenging with children who may lack direct knowledge or understanding. Testimony of knowledgeable adults, expert reports and testimony (regarding country conditions, harm to child, etc.), and object evidence can be key. Challenges to nexus often seen in cases involving persecution by in domestic violence cases where perpetrator is a substance abuser. Where family is the PSG, safety of similarly situated family members will also raise nexus issue.

23 Gang-Based Asylum Cases

24 PSG Strategy Argue that social group cognizability is to be determined on a case-by-case, record-specific basis and define groups that can meet the Board s 3-part test. Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) (setting forth rule that emerges is that the agency must make a case-by-case determination as to whether the group is recognized by the particular society in question ) Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) (holdings in S-E-Gand E-A-G- should not be read as a blanket rejection of all factual scenarios involving gangs) Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) (social group determinations must be made on a case by case basis) S-E-G-, 24 I&N Dec. 579 (BIA 2008) (SD & P are record based determinations)

25 BIA Jurisprudence Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008) & Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008) (rejected PSGs in recruitment cases, imposing visibility and particularity requirements) Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) (clarified social distinction and reiterated case by case adjudication) Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) (held former gang members not a PSG)

26 Resistance to Recruitment BIA tends to reject existence of a protected ground under Matter of S-E-G-. Circuit courts have not been very receptive, but there is some opening. See, e.g., Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) (reversing BIA s rejection of PSG of persons taking concrete steps to oppose gang membership and gang authority and remanding for further consideration)

27 Resistance to Extortion BIA and Circuit courts have rejected wealth as a basis for PSG. However, some opening for landowners. See, e.g., N.L.A. v. Holder, 744 F.3d 425 (7th Cir. 2014) (upheld PSG, distinguishing from A-M-E- & J-G-U on the grounds that land ownership is an easily recognizable trait distinguished from mere wealth ) Courts have also rejected PSGs based on length of residence in the U.S. or groups such as persons subject to extortion by gangs. But extortion may be persecution if tied to a recognized protected ground even if the targeted individual will be physically harmed only upon failure to pay. Oliva v. Lynch, 807 F.3d 53 (4th Cir. 2015) (recognizing extortion as part of persecution on account of former gang membership) CGRS has on file grant in a case based on PSG of single Salvadoran women who are working professionals.

28 Gender Violence in the Gang Context Significance of gender discrimination and patriarchy in gang culture Recall: A-R-C-G- should be argued to apply even where a woman is forced into a relationship and even in shorter-term relationships No positive, published case law, though focus in most cases is on recruitment or aspects other than the gender-based nature of the harm There are some unpublished or analogous cases to rely on: CGRS Database Cases: Salvadoran women who are viewed as gang property by virtue of the fact that they were successfully victimized by gang members once before; single Salvadoran women who are working professionals; and Salvadoran women Gomez-Zuluaga v. Att y Gen., 527 F.3d 330 (3d Cir. 2008) (women who escaped involuntary servitude after being abducted/confined by FARC)

29 PSG: Gender-Based Gang Asylum Claims Gangs target LGBT individuals Gangs target women & girls to be girlfriends and sometimes sex slaves. Nationality + gender + childhood/youth should satisfy the PSG tests. (e.g., El Salvadoran girls/girl children). Nationality + gender + childhood + lack of parental protection, living in female headed household, or living in a particular neighborhood See Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010) Immutability of gender, nationality, childhood, sexual orientation/identity Social distinction and particularity: look to articles, statistics, surveys about higher rates of violence or discrimination against LGBT and females; policies or programs directed at LGBTs/females

30 LGBT Particular Social Groups Well-settled that homosexuals constitute a cognizable PSG. Karouni v. Gonzales, 399 F.3d 1163, 1172 (9th Cir. 2005) ( all alien homosexuals ); Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (gay men with female sexual identities in Mexico); Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (BIA 1994) (homosexuals in Cuba). Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997) (Russian lesbian is PSG; punitive intent not required to rise to the level of persecution if victim experiences harm) Transgender identity recognized as distinct from sexual orientation Avendano-Lynch, 2015 WL (9th Cir. Sept. 3, 2015) Imputed membership in the group can qualify. See, e.g., Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003) (imputed status as homosexual qualifies as PSG) Family might also be relevant, for example, if there is inter-familial abuse.

31 Family Membership Claims of individuals fearing gang violence on account of family membership have been met with greater success. See, e.g., Flores-Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015) (remanded for consideration of family claim with helpful dicta that need not be intertwined with another ground) Challenges remain in these cases both for the existence of the social group (e.g. rejection of mothers of individuals who resisted gang membership ) as well as nexus and well-founded fear (e.g., if other family members safely in home country). Note: The BIA invited amicus briefing in January 2016 on family-based social groups and nexus in case involving drug cartel violence in Mexico and is likely poised to issue a precedent decision.

32 Witnesses and Informants There has been some negative treatment: Scatambuli v. Holder, 558 F.3d 53 (1st Cir. 2009) (rejecting PSG of informants to the U.S. Government) Matter of C-A-, 23 I&N Dec. 951 (BIA 2006) (rejecting confidential informants against Cali drug cartel because out of the public eye) But also some positive case law (distinguishing C-A-): Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (witnesses who testified in open court against murderous gang members could be PSG under either Acosta or SD/P test) Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013) ( former Mexican army soldiers who participated in anti-drug activity is a PSG)

33 Former Gang Membership There has been some success in the 4th, 6th, and 7th Circuits under Acosta and should satisfy new requirements. The issue is currently under consideration in W-G-R- at the Ninth Circuit. But, see USCIS Policy in the Langlois Memo, March 2, 2010, -Ramos-Div-2-mar-2010.pdf

34 PSG: FORMER GANG MEMBERS PSG Formulation Former gang members: recognized by 4 th, 6th, 7th, 8th Circuits Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014); Gathungu v. Holder, 725 F.3d 900 (8th Cir. 2013); Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010); Benitez- Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009) (approving tattooed former members of a street gang in El Salvador) Immutability of past membership Prove social distinction and particularity through: literature on former gang members, expert testimony, programs targeting individuals who have left gangs to help them reintegrate into community and families, any policies directed at former gang members Practice Pointers: Warning! Mandatory bars may apply Past gang activity may be an adverse discretionary factor Watch out for Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007), claim based on current membership in a gang, but has been misinterpreted as rejecting former membership Distinguish and respond to W-G- R- discussion regarding length, depth, and recency of membership through evidence of local context and cite to precedent that homogeneity is not a requirement for a PSG and is not expected for claims falling under other protected grounds

35 Nexus Strategy Argue the standard: One central reason, motives can be mixed Circumstantial evidence Relevance of societal context Objective evidence particularly important for children Personal or criminal motive does not preclude nexus to protected ground, Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013). Persecution may be on account of a protected ground even in cases of general strife, Sinha v. Holder, 564 F.3d 1015 (9th Cir. 2009). Build the record!

36 Political Opinion Claims Resistance to join a particular group or follow their command has been deemed political in other contexts There has been some recognition in cases framed as witness/informant cases (i.e. whistleblower) But, the BIA and federal courts have held that resistance to gangs is not a P.O. and that persecution for resistance is not on account of a P.O. There is skepticism that extortion is related to anything other than the persecutor s greed, though still an opening

37 Political Opinion Claims Strategy Must overcome belief that gang motivation = criminal, retribution, recruitment Gang resistance may be political Belief in rule of law Opposition to criminality and human rights violations Feminism or belief in right to be free from sexual exploitation Criticism of government policy on gangs Whistleblower Whether opinion is political depends on country conditions context (e.g. Osorio v. INS, 18 F.3d 1183 (9th Cir. 2007))

38 Political Opinion Success Stories CGRS Database Cases: New York IJ found that bus fare collector in Guatemala who refused to pay M-18 members a monthly tax was persecuted on account of his P.O. Baltimore IJ found that in case where gang members believed that woman who witnessed gang violence gave information to the police, persecuted her on account of actual or imputed P.O. because gang members view all cooperation with the authorities as an expression of political opposition to the gang s control

39 Religion Claims Expansive view of religion Targeting of religious beliefs (or non-belief) Interference with practice of religion Can include targeting of objectively secular activities (e.g., wearing short skirts in Matter of S-A-) Argue religious freedom entails not only freedom to believe but freedom to act in accordance with one s beliefs without fear of persecution. Religion may also be part of the PSG.

40 CASE HYPOS

41 Hypo: Salvadoran Siblings Salvadoran siblings, ages 7, 11 and 13, recently came to the U.S. About four years ago, the children s mother went to the U.S., leaving them in the care of their maternal grandmother who often drank and beat the children regularly. She also forced them to clean the house. The children attended school, though were often absent. They frequently had bruises visible on their bodies from the beatings, but no one (neighbors, teachers, etc.) ever asked them what they were from. When the oldest turned 13, the grandmother burned him on the arm with a hot coal for refusing to obey her orders. She threatened to burn the other children if he did not do what she asked. Frightened by the latest attack, the eldest finally told his mother about the abuse and she sent for them. None of the children told anyone about the abuse before they did not have any close family in El Salvador and did not want to burden their mother. They also thought no one would believe them.

42 Hypo: Clara Clara, an 16-year-old girl, was born and raised in a small town outside of San Pedro Sula, Honduras. She attended school until the 6th grade and then began to help out in the fields. Her brothers received a full high school education. At age 13, a 19-year-old gang member in their town, Mauricio, raped Clara while she was working. Mauricio said that now she was now his. Clara felt that she had no choice but to then begin dating Mauricio to restore her honor. Her father had already told her that she had better find a man to take care of her because they would not feed and clothe her forever. Clara moved in with Mauricio and his family. While in Honduras, Mauricio was controlling. He would get angry and demean her, calling her stupid or useless, and occasionally he would hit her and would force sex on her. Mauricio decided to go to the U.S. after about a year. While in the U.S. other members of Mauricio s gang kept watch over Clara. They followed her and reported to Mauricio everything she did. He would regularly call her and warn her that she still belonged to him. Eventually, Mauricio was deported and came looking for Clara, so she fled at age

43 Clara: Question 1 Which of the following is a viable and relevant social groups? A. Honduran girls viewed as property of a gang B. Honduran girls C. Honduran girls raped by gang members D. Girlfriends of gang members in Honduras E. Honduran girls treated as property by virtue of their position in a domestic relationship F. Honduran females in familial relationships they are unable to leave G. Honduran girls without effective parental protection 43

44 Clara: Question 2 What type of evidence would establish that her persecution was on account of a gender-defined particular social group? A. Comments by Mauricio B. Comments by other gang members C. Comments by her Clara s father D. Evidence on gang treatment of girls/girlfriends and status of women in Honduran society E. All of the above 44

45 Clara: Question 3 Does the evidence show that Clara was targeted on account of her membership in a gender-defined social group? a. Yes b. No 45

46 Clara: Question 4 Assume Clara learns that Mauricio is no longer in Honduras. If the IJ says Clara has no well-founded fear of persecution because he is out of the country, could Clara receive humanitarian asylum? a. Yes, based on the severity of past harm b. Yes, based on the possibility of other serious harm c. Yes, based both on severity of past harm and other serious harm d. No e. Maybe 46

47 Hypo: Silvia Silvia, now 16, lived with her grandmother in Honduras. Her father abandoned the family and her mother is in the U.S. Two adult male relatives (an uncle and a cousin) spent a lot of time in the grandmother s home. Silvia s grandmother did not like having these men around (the uncle has ties to MS-13), but she did not feel she was able to prevent them from coming over as a female head of the house. When Silvia was 6 years old, these male relatives began sexually abusing her. The abuse occurred several times until her uncle was put in jail for a murder-related offense and her cousin left for Mexico where he now resides. Silvia fled Honduras last year after a gang member killed a relative who refused to comply with extortion demands. The sexual abuse Silvia suffered has had significant impacts on her physical and mental health; she still suffers from nightmares and headaches.

48 Silvia: Question 1 Which particular social groups apply the best? a. Honduran girls b. Honduran females viewed as property by virtue of their position in a familial relationship c. Honduran females in familial relationships they are unable to leave d. Honduran girls without effective parental protection e. Female children in the X family f. None of the above

49 Silvia: Question 2 If the IJ says Silvia has no well-founded fear of persecution because having her abusers are in jail or out of the country, could Sylvia receive humanitarian asylum? a. Yes, based on the severity of past harm b. Yes, based on the possibility of other serious harm c. Yes, based both on severity of past harm and other serious harm d. No e. Maybe

50 Hypo: Francisco Francisco is 15 and from El Salvador. His mom abandoned him at birth and his father died 3 years ago. When his father died, Francisco lived on the streets. The 18th Street gang recruited him to sell drugs but he refused. The gang beat him, drugged him, tattooed 18 on him, and told him he was now a gang member and must follow orders. He refused to join the gang or sell drugs. The gang said if kept refusing, they would kill him. Francisco didn t go to the police because he worried the policy would hurt or jail him when they saw his 18 tattoo. Francisco fled to the United States.

51 Francisco: Question 1 Which social groups apply the best? a. Male Salvadoran children without effective parental protection b. Male Salvadoran children who have taken active steps to resist and oppose gangs c. Imputed former members of the 18 th street gang d. Male Salvadoran children e. All of the above f. None of the abuse

52 Francisco: Question 2 Is the fact that Francisco did not report to the authorities fatal to his claim? a. Yes b. No

53 Hypo: Nancy Nancy is a 16-year-old girl from Guatemala. She worked as a merchant to support her infant daughter. Gang members approached Nancy while she was working and demanded half of her monthly wages as renta. Terrified, Nancy complied each month. One day, the gang members murdered the older woman who was selling goods next to Nancy for failing to pay the rent they demanded. The next week, the gang members approached Nancy demanding their payment. They lifted up Nancy s shirt and put a knife to her stomach, saying that she was very pretty and if she did not pay them they would take her back to their house as payment. The next day, Nancy paid the gang members and then fled to the U.S.

54 Nancy: Question 1 Which social groups apply the best? a. Single, working class Guatemalan women b. Guatemalan women c. Guatemalan female heads of household d. Guatemalan women in X neighborhood e. Guatemalan women viewed as gang property f. All of the above g. None of the abuse

55 Nancy: Question 2 Does Nancy have a well-founded fear of persecution? a. No b. Yes, she has a presumption of a well-founded fear of persecution because she has suffered past persecution c. Yes, she has not suffered past persecution, but has an independent well-founded fear of persecution d. Yes, she has a presumption of a well-founded fear of persecution and also has an independent fear of future persecution

56 Hypo: Antonio Antonio is a 15 year old unaccompanied minor from El Salvador. In El Salvador, he lived with his grandparents and his father had abandoned him. He came into the United States in October 2015 and reunited with his mother. In El Salvador, he always played with his sister and his sister s toys. At school, his classmates would always talk about girls, but Antonio was not interested. He realized that he like males and is gay. He had friends in El Salvador who were gay as well. One of them was an adult, and he was killed by gang members for being gay in front of Antonio. The gang members insulted him and called him maricon. Antonio was afraid and he came to the United States. He did not think the police in El Salvador would help him if he ever needed it because they did not help his friend. He attended the pride parade this year. He told his family he is gay, fortunately, and they did not try to change Antonio. Antonio goes to school and he feels safe in the United States. He feels like he does not have to hide who he is. Antonio asks his attorney what his options are.

57 Hypo: Diana Diana is a 9 year old unaccompanied minor who came to the United States in March 2015, and reunited with her mother. She left Guatemala because of bullying at school. Diana was born in Mexico to a Mexican father and Guatemalan mother. After Diana was born, her mother fled to escape Diana s father. Diana s father severely abused her mother, causing her injury, and causing her to flee. He was not kind to Diana, and would yell at her if she cried, but he did not beat her. Her mother brought Diana to Guatemala when she was 3 years old to live with her grandmother. Then, Diana s mother left for the United States. Diana s mother has been undocumented in the United States about 6 years now, and does not want to apply for asylum and risk being placed in removal proceedings. Diana s mother says Diana s father tried to contact her on social media. Diana does not remember what happened when she was younger. She asks her attorney for advice.

58 Hypo: Mario Mario is a studious 15 year old who lives in Sonsonate, El Salvador. He has an uncle living in the United States, who visits frequently, and brings him and his brothers presents. On a visit two years ago, his uncle brought him an iphone, which no one else in his neighborhood owned. Several weeks after he received the iphone, he began to receive calls from anonymous individuals who identified themselves as being in a gang, and who told him they wanted his phone. They told him to go to the town plaza with the phone and to give it to someone who would meet him there. Mario was very frightened and told his mother. His mother insisted that they call the police, which they did. The police told Mario go to the plaza, and that they would be nearby and would arrest the gang members. Antonio did as he was told, and as a result, several gang members were arrested, while others got away. After the arrests, the police suggested to Mario that he and his family move because they (the police) could not protect them. Shortly after, Mario received a summons to come to the court as a witness against the gang members; he also began receiving threats that he would pay the consequences for what he had done. He knew of others who had appeared as witnesses against the gangs and were later killed. He stopped going to school, stayed inside the house night and day, and finally his uncle helped him make his way to the United States.

59 Declaration and Other Evidence A declaration from the child where the child is able and has knowledge Establish a good relationship with client, use age appropriate language and questions, have a child-friendly setting Also, consider a letter of support from a parent or guardian Are there details the UAC is not aware of? Be mindful of client confidentiality Use declaration to tell asylum officer why the applicant qualifies for asylum Chronological vs. thematic organization Headings as a guide for content

60 Obtain Client Files File Freedom of Information Act Requests (FOIA) from all applicable agencies: Executive Office for Immigration Review (EOIR) U.S. Customs and Boarder Patrol (CBP) U.S. Immigration and Customs Enforcement (ICE) U.S. Citizenship and Immigration Services (USCIS) Office of Biometric Identity Management (OBIM) Department of State (DOS) File a request for the child s ORR file if your client was in ORR custody. Request a background check from the FBI to determine whether your client has a criminal record.

61 CGRS Resources Practice Advisories Domestic violence Children s asylum Bars in children s cases Country Conditions Reports Cover specific topics in individual countries (e.g. violence against women, children, LGBT, gang violence, etc.) Country-specific on violence against women and children Topic-specific on domestic violence and incest Sample Pleadings Case documents: declarations, indexes, expert declarations Legal briefs Examination questions Unpublished case law IJ and BIA decisions Expert Declarations

62 Individualized Mentoring CGRS provides expert consultation to attorneys representing asylum seekers across the United States, including legal consultation, country conditions evidence, and expert witness referrals and declarations. To request assistance in your case, go to

63 Questions?