AILA D.C CONFERENCE

Transcription

1 SCATTERGORIES: Winning Asylum Claims Based on Particular Social Group Speakers: Dree Collopy, Benach Ragland LLP Jason Dzubow, Dzubow & Pilcher, PLLC Patricia Minikon, Minikon Law, LLC Moderator: Jumoke Oladapo, Ivylaw Law Office, LLC AILA D.C CONFERENCE

2 Introduction What is a Particular Social Group (PSG)?

3 Evolution of PSG Legal Standard Matter of Acosta: common immutable characteristic Matter of C-A-; Matter of A-M-E-& J-G-U-: particularity and social visibility (new prongs of PSG analysis)

4 Evolution of PSG Legal Standard Matter of S-E-G & Matter of E-A-G-: Social visibility and particularity now required

5 Evolution of PSG Legal Standard Circuit Courts Respond 1 st, 2 nd, 5 th, 10 th, 11 th : Defer in whole or part Ahmed v. Holder, 611 F.3d 90 (1 st Cir. 2010) Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) Orellana-Monson v. Holder, 685 F.3d 511 (5 th Cir. 2012) Rivera-Barrientos v. Holder, 666 F.3d 641 (10 th Cir. 2011) Velasquez-Otero v. U.S. Atty. Gen., 456 Fed. Appx. 822 (11 th Cir. 2012) (unpublished)

6 Evolution of PSG Legal Standard Circuit Courts Respond 3 rd, 7 th, & 9 th: Reject Social Visibility and Particularity in whole or part Valdiviezo-Galdamez v. Atty. Gen., 663 F.3d 582 (3d Cir. 2011)

7 Evolution of PSG Legal Standard Circuit Courts Respond 3 rd, 7 th, & 9 th: Reject Social Visibility and Particularity in whole or part Gatimi v Holder, 578 F.3d 611 (7 th Cir. 2009) Benitez-Ramos v. Holder, 589 F.3d 426 (7 th Cir. 2009) Cece v. Holder, 733 F.3d 662 (7 th Cir. 2013)

8 Evolution of PSG Legal Standard Circuit Courts Respond 3 rd, 7 th, & 9 th: Reject Social Visibility and Particularity in whole or part Henriquez-Rivas v. Holder, 707 F.3d 1081 (9 th Cir. 2013)

9 Evolution of PSG Legal Standard Matter of M-E-V-G- & Matter of W-G-R- Social Visibility now Social Distinction Reaffirmed 3-part test

10 Evolution of PSG Legal Standard 3-Part Test for PSG Analysis (2014) 1. Common, immutable characteristic 2. Social distinction 3. Particularity

11 Current Trends in PSG Claims

12 Analysis for a PSG Claim 1. Identify a cognizable group under 3- part test 2. Prove membership in the group 3. Establish nexus between persecution and membership in group

13 Analysis for a PSG Claim Identify a cognizable group under 3- part test Challenges: 1. Increased Evidentiary Burden 2. PSG no longer parallel with other 4 grounds 3. Troubling particularity dicta

14 Analysis for a PSG Claim Identify a cognizable group under 3- part test Challenges Cont d: 4. Homogeneity of groups 5. Size of groups 6. Is meeting both social distinction and particularity possible?

15 Analysis for a PSG Claim Prove membership in the group

16 Analysis for a PSG Claim Nexus: establish past persecution or a well-founded fear of persecution on account of that membership

17 Analysis for a PSG Claim Nexus One Central Reason Direct or Circumstantial Evidence

18 PSG Hot Topics

19 Gang-based PSG Claims Types of Gang-based claims What has worked and what hasn t?

20 Types of Gang-based claims: Resistance to Recruitment Witness or informant Family membership Gender Former Gang membership

21 Gang-based PSG claims: Other Challenges Nexus Internal Relocation

22 Gender-based PSG claims What has worked and what hasn t?

23 Types of Gender-based PSG claims FGM/FGC Matter of Kasinga Forced Marriage Repressive social norms/honor Killings Sex trafficking and forced prostitution Rape and sexual violence Femicide

24 Types of Gender-based PSG claims Domestic Violence Matter of R-A- & Matter of L-R- Matter of A-R-C-G-

25 Gender-based PSG claims Other Challenges Nexus Government unable/unwilling to protect Internal Relocation

26 Practice Pointers for PSG Claims

27 Practice Pointers Client should understand basis of claim Other bases: FGM, DV, Prior harm as basis for other serious harm claim (8 CFR (b)(1)(iii)(B) or humanitarian asylum claim 8 C.F.R (b)(1)(iii)(A)

28 Practice Pointers Client should understand basis of claim Ask about FGM, DV at beginning Explain why you are asking about sensitive issues

29 Practice Pointers Argue for case-by-case determination based on: - specific facts - evidence of record Be creative in formulating PSG

30 Practice Pointers Argue for case-by-case determination Matter of E-F-H-L-: Alien entitled to present his case even if IJ/AO believes proposed PSG does not qualify

31 Practice Pointers Matter of Fefe: IJ cannot rely exclusively on I-589 to make decision Use a PSG that has been used before

32 Practice Pointers Use published decisions Use decisions from your Circuit/other Circuits Use unpublished decisions from list serves or Lexis/Westlaw

33 Practice Pointers Present multiple PSGs 1. Acosta Group 2. M-E-V-G- and W-G-R- Group Tip: Inclusion of weak claim with strong one may weaken strong claim

34 Practice Pointers Establish your record with Evidence

35 Practice Pointers Establishing your record 1. Testimony and Affidavits 2. Use Experts for context 3. Documentary Evidence

36 Practice Pointers Testimony and Affidavits Get to the point! The Goal: win asylum (not tell entire life story) Evidence supportive of claim: prove applicant s statements

37 Practice Pointers Using Experts Essential to provide proper context for PSG when claim cannot be documented with internet research/precedent Written report or in-person testimony

38 Practice Pointers Use Experts to Establish - Socio-political context -Social distinction and particularity -Nexus -Ability/willingness of state to protect -Relocation options

39 Practice Pointers Other Documentary Evidence (background information) Passport; marriage certificates; photos; School and work records & evidence of missed work or school; Birth certificates of children; awards & certificates

40 Practice Pointers - Don t forget other protected grounds - Don t forget about CAT explain pros/cons -Brief it!! Remember IJs and AOs know basics

41 Practice Pointers Litigate like you may have to appeal -Challenge BIA s additional requirements to preserve issue -Attempt to meet additional requirements

42 Practice Pointers On Appeal - Challenge the BIA -Get help from the experts! -Don t go it alone! -Coordinate with other litigators: AILA, AIC, NGOs, law schools

43 Thanks for Attending!!