In the Supreme Court of the United States. March Term Miguel Rodriguez, Petitioner, United States of America, Respondent.

Transcription

1 In the Supreme Court of the United States March Term 2015 Miguel Rodriguez, Petitioner, v. United States of America, Respondent. On Writ of Certiorari to the Supreme Court of the United States Court of Appeals for the Fourteenth Circuit Brief for petitioner Team P4

2 QUESTIONS PRESENTED 1. Whether Petitioner s former membership as a teenager with the PR25 gang places him under a protected particular social group for asylum purposes; and 2. Whether Petitioner s participation in vehicle burning and rock-throwing to protest a new government policy constitutes a commission of a serious nonpolitical crime barring his asylum application pursuant to 8 U. S. C. 1158(b)(2)(A)(iii). 1

3 TABLE OF CONTENTS QUESTIONS PRESENTED... 1 TABLE OF CONTENTS... 2 TABLE OF AUTHORITIES... 3 OPINIONS BELOW... 4 JURISDICTIONAL STATEMENT... 4 STATUTORY PROVISIONS INVOLVED... 5 STANDARD OF REVIEW... 6 STATEMENT OF THE CASE... 7 SUMMARY OF THE ARGUMENT... 9 ARGUMENT I. MR. RODRIGUEZ S FORMER MEMBERSHIP WITH THE PR25 GANG AS A TEENAGER SATISFIES THE PARTICULAR SOCIAL GROUP REQUIREMENT FOR ASYLUM PURPOSES A. The Court of Appeals Erred in Applying the BIA s Test for a Particular Social Group and Should Have Used the Acosta Test Instead B. Mr. Rodriguez Would Qualify for Asylum Under the Acosta Test Because Former Membership in the PR25 Gang as a Teenager Would Constitute an Immutable Characteristic C. Mr. Rodriguez Would Still Qualify for Asylum Under the BIA s New Test II. THE COURT OF APPEALS ERRED IN FINDING THAT THERE ARE SERIOUS REASONS TO BELIEVE THAT MR. RODRIGUEZ HAS COMMITTED A SERIOUS NONPOLITICAL CRIME UNDER 8 U.S.C. 1158(B)(2)(A)(III) A. Mr. Rodriguez Has Not Committed a Serious Nonpolitical Crime Because None of Mr. Rodriguez s Acts Constitute a Serious Crime B. Even if Mr. Rodriguez s Crimes Were Serious, He Has Not Committed a Serious Nonpolitical Crime Because the Criminal Nature of His Acts Is Outweighed By Their Political Nature C. Mr. Rodriguez Has Not Committed a Serious Nonpolitical Crime Because Applicants for Asylum in His Situation Are Not the Type of Applicant the Serious Nonpolitical Crime Exception Was Enacted to Exclude CONCLUSION

4 TABLE OF AUTHORITIES Cases Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009) Berhane v. Holder, 606 F.3d 819 (6th Cir. 2010)... 30, 35 Cantarero v. Holder, 734 F.3d 82 (1st Cir. 2013)... 6 Castillo-Arias v. United States AG, 446 F.3d 1190 (11th Cir. 2006) Chay-Velasquez v. Ashcroft, 367 F.3d 751 (8th Cir. 2004) Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002)... passim Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) Gallagher v. I.N.S., No , 1986 WL (6th Cir. Mar. 31, 1986) Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009) Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (1999)... 26, 32 Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir.2003) Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014) Matter of Acosta, 19 I. & N. Dec. 211, (BIA 1985)... passim Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69 (BIA 2007) Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014) Matter of Ballester-Garcia, 17 I. & N. Dec. 592 (BIA 1980)... 23, 24, 25, 26 Matter of E-A-, 26 I. & N. Dec. 1 (BIA 2012)... passim Matter of Fuentes, 19 I. & N. Dec. 658 (BIA 1988)... 15, 17 Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996) Matter of McMullen, 19 I. & N. Dec. 90 (BIA 1984)... 23, 32 Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014)... passim Matter of Rodriguez-Palma, 17 I. & N. Dec. 465 (BIA 1980)... 26, 35 Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (BIA 1990) Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014)... 20, 21 McMullen v. I.N.S., 788 F.2d 591 (9th Cir. 1986)... 32, 35 Rivera Barrientos v. Holder, 658 F.3d 1222 (10th Cir. 2011) U.S. v. Farish, 535 F.3d 815 (8th Cir. 2008)... 24, 25 Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010)... 18, 28 Valdiviezo-Galdamez v. AG of the United States, 663 F.3d 582 (3d Cir. 2011) Statutes 8 U.S.C. 1158(b)(2)(A)(iii) (2014)... 5, 23 ARK. CODE ANN (2015) DEL. CODE ANN. tit. 11, 804 (2015) INA 101(a)(42)(A) (2014)... 5, 9, 12 MODEL PENAL CODE 2.09 (2015) MODEL PENAL CODE (2015) S.D. CODIFIED LAWS (2014)

5 Other Authorities 6A C.J.S. Assault 106 (2014) R. Millar, W. H. Rutherford, S. Johnston & V. J. Malhotra, Injuries caused by rubber bullets: A report on 90 patients, BRITISH JOURNAL OF SURGERY, June 1975, at U. N. High Comm r for Refugees, Guidelines on the Application of the Exclusion Clauses (Article 1(F) of the 1951 Convention), 2 (Sept. 4, 2003) OPINIONS BELOW On June 6, 2008, Mr. Rodriguez filed for asylum based on his fear of persecution by the PR25 if he returned to Honduron. An immigration judge ordered Mr. Rodriguez removable and denied his application for asylum. Mr. Rodriguez appealed the denial of his asylum application. The BIA affirmed the IJ s decision on the ground that former gang membership is not a protected particular social group. Further, the BIA held that Mr. Rodriguez s involvement in the death penalty protest before coming to the United States constituted a nonpolitical serious crime and barred his asylum application. On appeal, Mr. Rodriguez argued that his former gang membership is protected as a particular social group and that his protest does not constitute a serious nonpolitical crime. The U.S. Court of Appeals for the Fourteenth Circuit affirmed the BIA s decision. JURISDICTIONAL STATEMENT A statement of jurisdiction has been omitted in accordance with the rules of the U.C. Davis School of Law Asylum and Refugee National Moot Court Competition. 4

6 STATUTORY PROVISIONS INVOLVED 8 U.S.C provides in pertinent part: (a)(1) In general Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective or such alien s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title. ***** (b)(2) Exceptions (A) In general Paragraph (1) shall not apply to an alien if the Attorney General determines that ***** (iii) there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States. INA 101(a)(42)(A) provides in pertinent part: The term "refugee" means: (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself 5

7 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. STANDARD OF REVIEW Whether Mr. Rodriguez belongs to a particular social group is a legal determination which receives de novo review. Cantarero v. Holder, 734 F.3d 82, 84 (1st Cir. 2013). The BIA s finding that Mr. Rodriguez committed a serious nonpolitical crime is a finding of fact that receives review under the substantial evidence test. See Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002). Under substantial evidence review, the Board s factual determinations are only reversible if this court finds that the evidence compels a contrary conclusion. Id. at

8 STATEMENT OF THE CASE Miguel Rodriguez was born and raised in Honduron, a developing country in South America that has consistently endured much social strife and political instability. R. at 5. Mr. Rodriguez grew up under the constant threat of violence from local gangs. R. at 5. These gangs would pressure Mr. Rodriguez to join them and frequently beat him when he refused. R. at 5. When he was only 14, Mr. Rodriguez joined a local gang as a means to obtain protection from the constant threats and beatings. R. at 5. He did not realize that he had joined PR25, a transnational criminal organization notorious for their use of violence and their fatal retributions. R. at 5. Two years later, Mr. Rodriguez had to obtain a tattoo that established his membership in the PR25 gang. R. at 5. At age 17, Mr. Rodriguez took part in a protest against the government s legislation reinstating the death penalty. R. at 5. He did so in part because of his personal political belief that the death penalty is an ineffective way to combat criminal activities, and in part because the PR25 threatened to beat him and his younger sister if he did not participate in the protest. R. at 6. He was afraid of the PR25 s threats because previous disobediences had resulted in horrific retributions from the PR25 organization. R. at 6. The protest against the government s reinstatement of the death penalty took place about two blocks from City Hall. R. at 5. As part of the protest, Mr. Rodriguez and other members of the PR25 burned an already obsolete vehicle owned by one of the members. R. at 5. Mr. Rodriguez insisted that the group take safety precautions when burning the vehicle. R. at 6. He made sure that no easily explosive parts remained in the car, burned the vehicle near a fire hydrant and away from civilian clustered areas, and kept fire extinguishers near the scene. R. at 6. While burning the vehicle, the group kept the fire under control. R. at 5-6. Because of the 7

9 safety measures that Mr. Rodriguez insisted on, no one was injured from the vehicle burning. Nor did any civilians suffer unnecessary financial damages. R. at 6. As part of the government s attempt to suppress the protest, police officers used shields and rubber bullets to disperse the crowds. R. at 6. In order to defend himself against the police officers use of force, Mr. Rodriguez threw rocks at the officers. R. at 6. Ultimately Mr. Rodriguez decided to renounce his membership with the PR25 because he did not wish engage in illegal activities. R. at 6. In retribution, the gang beat him up and threatened to kill his family. R. at 6. These threats took the form of dead animals at the doorstep of his family s home and threats written on the walls of his house. R. at 6. In fear of his own well being and that of his family, Mr. Rodriguez fled to the United States with his sister. R. at 6. They entered the U.S. on July 8, 2007 with fake passports. R. at 7. Although Mr. Rodriguez has not engaged in any criminal activities since leaving the PR25 gang, he was arrested on February 9, 2008 for driving without a license. R. at 7. ICE started removal proceedings for illegally entering the U.S. with a fake passport based on 8 U.S.C (a). R. at 7. On June 6, 2008, Mr. Rodriguez filed for asylum on the grounds that his former membership with the PR25 gang places him at risk of future persecution. R. at 7. In order to support his case, Mr. Rodriguez submitted the testimony of a Honduron police officer who said that PR25 aggressively sought to punish those who left the gang. R. at 7. He also submitted testimony from Honduron citizens who admitted that the society of Honduron is reluctant to protect those who left the gang. R. at 7. The gang has connections in the Honduron government through which they could arrest Mr. Rodriguez. R. at 6. Therefore, the government of Honduron would not be able to protect Mr. Rodriguez from gang persecution. The gang members force local citizens to report 8

10 the former gang members location and forbid them to assist the former member in any way. R. at 8. As a result, the citizens of Honduron avoid contact with anyone who was a former member of the PR25 gang and employers would deny jobs to any former gang member. R. at 8. The citizens of Honduron would easily identity Mr. Rodriguez s association with the gang because was forced to get a characteristic gang tattoo. R. at 8. SUMMARY OF THE ARGUMENT I. The Court of Appeals for the Fourteenth Circuit erred in giving Chevron deference to the Board of Immigration Appeals interpretation of a particular social group and finding that Mr. Rodriguez was not a member of a particular social group. Asylum seekers must prove that they fear persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 101(a)(42)(A) (2014). In order to define a particular social group, the Court of Appeals should have applied the Acosta test instead of the BIA s new statutory interpretation which requires that a group establish (1) a common immutable characteristic, (2) particularity, and (3) socially distinct within the society in question. Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014). The new requirements of particularity and social distinction are unreasonable because they have created significant confusion in circuit courts as they struggle to distinguish between the two. These requirements also place an unreasonable burden on asylum seekers who must now provide a more complex definition of their particular social group. Therefore, this court should apply the Acosta test, which is a reasonable test that allows sufficient flexibility in examining social groups while maintaining asylum as an avenue only for those legitimately persecuted due to a common characteristic that they cannot change. Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985). Under the Acosta 9

11 test, this court would find that Mr. Rodriguez possesses the element of immutability because he cannot relinquish his experiences as a former teenage member of the PR25 gang. Even when examined under the BIA s new test, the facts of this case prove that Mr. Rodriguez would still qualify for asylum. The characteristics of teenager and former gang member sufficiently narrow down the group and provide a specific category of persecuted persons under which Mr. Rodriguez falls. At the same time, these characteristics provide an objective benchmark through which to test whether future asylum seekers fall under Mr. Rodriguez s group. Mr. Rodriguez also meets the social visibility requirement because citizens of Honduron recognize former gang members and actively distance themselves from them. Although the BIA s new standard contains two unreasonable prongs, Mr. Rodriguez does meet all three requirements and therefore qualifies as a member of a particular social group. II. The Court of Appeals erred in failing to find substantial evidence to compel the conclusion that Mr. Rodriguez did not commit a serious nonpolitical crime. The actions that Mr. Rodriguez took on the day of the death penalty protest in Honduron do not constitute a serious crime. He and other members of the PR25 burned a vehicle that belonged to another member of the PR25. They did so in a safe and carefully controlled environment. Because no person or piece of property was harmed or even placed at risk of harm, this cannot be considered a serious crime. Furthermore, when considered in light of American criminal law, this action should be considered one taken while under duress, since Mr. Rodriguez participated in the protest due to threats from the notoriously violent PR25. Therefore, this crime cannot be considered serious. Mr. Rodriguez then proceeded to throw stones at police officers who were shooting at the protesters with rubber bullets. This action caused little if any harm, and it was done in selfdefense against the violent actions of the police officers, so it also should not be considered a 10

12 serious crime. Since Mr. Rodriguez did not commit a serious crime, he cannot be guilty of a serious nonpolitical crime. Even if Mr. Rodriguez s actions did constitute a serious crime, he did not commit a serious nonpolitical crime because his crime was political, meaning that the political nature of his actions outweighed their criminal nature. Burning the vehicle was a political act because it was done as part of a protest in front of City Hall to convince the government to repeal the death penalty. Throwing rocks at police officers was also political because it resulted from the initial protest and the government s method of responding to the protest. Because Mr. Rodriguez s actions were not directed toward civilians, but toward City Hall, the police officers, and the government as a whole, his crimes should be considered more political than criminal, meaning that they are not serious nonpolitical crimes. Even if the court does consider Mr. Rodriguez s crimes serious and nonpolitical, they are not the type of crimes the law was intended to encompass. The serious nonpolitical crime exception is meant to prevent bad people from coming into the United States and avoiding the repercussions of the crimes they committed in the country that they ran away from. This is not why Mr. Rodriguez came to the United States. He is not a fugitive from justice, and he is not a serious criminal who we wouldn t want to live amongst us as a citizen. The statute was not intended to bar asylum applicants whose crimes were committed under such specific circumstances as Mr. Rodriguez s were. Therefore, Mr. Rodriguez s actions compel the conclusion that there are not serious reasons for believing that he has committed serious nonpolitical crimes. 11

13 ARGUMENT I. MR. RODRIGUEZ S FORMER MEMBERSHIP WITH THE PR25 GANG AS A TEENAGER SATISFIES THE PARTICULAR SOCIAL GROUP REQUIREMENT FOR ASYLUM PURPOSES. A person fleeing from persecution qualifies for asylum if they can prove that they would be unable to find protection in their country of origin due to their race, religion, nationality, membership in a particular social group, or political opinion. INA 101(a)(42)(A) (2014). The statute does not further define what constitutes membership in a particular social group. Mr. Rodriguez seeks asylum on account of belonging to the social group of people with former membership in the PR25 gang as a teenagers. Congress did not explain the intent behind this phrase, which has led to much confusion among courts. See Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993). The BIA first interpreted this requirement as membership in a group in which all of its members share an innate characteristic. Matter of Acosta, 19 I. & N. Dec. at 233. This interpretation followed the principle of ejusdem generis, by which items in a list should be given consistent interpretations. Id. Therefore, a particular social group would have to be defined by an immutable characteristic just as the other categories (race, religion, etc.) consist of fundamental characteristics that an individual cannot or should not be required to change. Id. This creates a criterion for asylum that allows judges certain flexibility as they weigh facts in a case per case basis. At the same time, the immutable characteristic provides a specific test through which to grant asylum only to those unable to avoid persecution. Id. at 234. In Matter of Acosta, the respondent did not convince the court he belonged to a particular social group, namely that of taxi drivers in El Salvador, because he could have left the group at any point. The characteristic of driving a taxi was neither inherent to him nor strictly necessary. Id 12

14 Under the Acosta test, Mr. Rodriguez would qualify for asylum because his group meets the immutability the requirement. Instead, the Court of Appeals chose to apply the BIA s new test for a particular social group, which presents an unreasonable standard. Nevertheless, Mr. Rodriguez should still qualify for asylum because his particular social group meets all three requirements of the BIA s new test. A. The Court of Appeals Erred in Applying the BIA s Test for a Particular Social Group and Should Have Used the Acosta Test Instead. The BIA has the authority to redefine or create additional factors for its interpretation of a particular social group as long as they are reasonable. Castillo-Arias v. United States AG, 446 F.3d 1190, 1197 (11th Cir. 2006). While the Court of Appeals discussed the immutable requirement, they erred in applying the BIA s two new requirements of particularity and social distinction because these requirements are unreasonable. Consequently, the BIA s interpretation of a particular social group should not receive Chevron deference because it is unreasonable. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). 1. The new requirements of particularity and social distinction have not only created confusion in the judicial system but they also contradict BIA precedent. The requirement of particularity stems from a concern that social groups could be too numerous or broad. Id. at However, the Acosta test already provides a reasonable measure to avoid broad groups by requiring that asylum seekers demonstrate that members of their group share an immutable characteristic. Only those targeted because of that common characteristic would gain asylum through the Acosta test. Although this could result in groups that encompass large numbers of people, numerosity should not factor in the determination of asylum. Certainly 13

15 the BIA would grant asylum to an oppressed religious group within a country, regardless of their numbers. In addition, the prong of social distinction requires an asylum applicant to prove that the society from which they originate perceives a given social group as significantly different. Matter of M-E-V-G-, 26 I. & N. Dec. 227, 243 (BIA 2014). The inquiry as to whether a group has traits that a society would distinguish seems to almost blend with finding particularity by creating well-defined categories or boundaries. Valdiviezo-Galdamez v. AG of the United States, 663 F.3d 582, 608 (3d Cir. 2011). It seems unreasonable and almost contradictory to require a group to have narrowly defined boundaries while also requiring the society at large to recognize the given group. This could pose a problem because, in order to ensure their safety, certain persecuted groups have an incentive to make sure that a member of society would not be able to recognize their group. Id. at 607. Even if a persecuted group did not attempt to hide itself, society at large may have no knowledge of their existence or, much less, their persecution. For example, if the newly established government of a hypothetical country held a grudge against former customs officers, they could conceivably persecute this group without the knowledge of society. Former customs officers would be aware that the government seeks to punish them but ordinary citizens would have no reason to view their group as distinct within their society. Under the social distinction requirement, a group persecuted by their government would not qualify for asylum until the society at large recognizes this persecution. Matter of M-E-V-G-, 26 I. & N. Dec. at 243. The BIA recently found that married women form Guatemala who could not leave their relationships would qualify as a particular social group. See Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014). The prevalence of misogyny and domestic violence makes married women a distinguishable group within Guatemalan society. Id. at 394. Women facing the exact same 14

16 persecution in a different country where their society would not see them as different would not qualify for asylum. This arbitrary notion of social distinction would preclude an individual from seeking asylum unless their society viewed them as different, which in itself invites subjective interpretation. Certainly Congress did not intend for individuals facing persecution to have to endure and wait until their society become aware of their particular social group before these individuals could seek asylum. Applying the requirement of social distinction would create discrepancies with prior BIA decisions where groups lacking visibility were granted asylum. For example, the BIA found that women from a particular tribe who had not yet undergone female genital mutilation would fall under a particular social group. Matter of Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996). These women had a credible fear of persecution but the BIA did not provide any convincing reason as to why their society would identify them as different simply because they hold a different opinion with regards to female genital mutilation. The Acosta test would grant these women asylum as members of a group that share an immutable characteristic, while the new BIA standard of social distinction would make it extremely difficult for persons in a similar group to gain asylum. The BIA also found that former police officers from El Salvador could fall under a particular social group even though they lacked visibility because of their shared immutable characteristic that would subject them to persecution. Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988). Once again, members of a given society would not necessarily distinguish a former police officer from any other citizen and yet the new BIA test would make asylum contingent upon this very requirement. The BIA has also held that homosexuals in Cuba qualified as a particular social group. Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (BIA 1990). The BIA clarified, in Matter of 15

17 M-E-V-G-, that the Cuban government kept files on homosexuals and persecuted them because of this label. The BIA found that Cuban society viewed and treated homosexuals differently because they belonged to this particular social group. Matter of M-E-V-G-, 26 I. & N. Dec. at 245. Although Cuban homosexuals meet the BIA s new requirement of social distinction, a nearly identical group could easily fail the test. For example, if the government of a country kept track of and persecuted homosexuals, this group would not qualify for asylum unless their society itself perceived them as different. The social distinction requirement thus creates an unreasonable distinction between these two groups because it would only grant asylum to one of them, in spite of equal degrees of persecution. While the BIA s new test would create confusion and deny asylum to groups that have been protected in the past, the Acosta test would avoid these pitfalls by focusing solely on an applicant s immutable characteristic and therefore providing a reasonable standard for courts to follow. 2. These new requirements would create unreasonable hurdles for asylum seekers. The additional requirements of social distinction and particularity create unreasonable hurdles that particularly complicate the process for pro se asylum seekers. Instead of simply proving their persecution and membership in a group with a shared immutable characteristic, asylum seekers must now also develop complex legal arguments that prove all three prongs of the test as well nuanced categories that narrow down groups. After being victims of persecution, many asylum seekers arrive in the U.S. with few possessions and much less wealth. If some U.S. Court of Appeals judges have trouble differentiating between particularity and social distinction, then how high would be the burden for pro se asylum seekers, especially those who do not even understand the English language? In this context, the legal system may encounter many victims 16

18 of persecution who do not have the means to procure a legal counsel and may lack the skills or education to craft a legal argument that claims asylum by meeting not only the immutability requirement but also particularity and social distinction. Especially with regards to this last prong, asylum seekers would need to provide sufficient analysis and evidence that the society in question distinguishes them as part of a separate group of people. Even with legal counsel, meeting the social distinction requirement creates an unreasonable hurdle by having to procure far more evidence than originally needed under the Acosta test. Although Mr. Rodriguez has managed to provide evidence that he meets all three prongs of the BIA s new test, this court should nevertheless reject the test because of the unreasonable hurdles that it creates for future asylum applicants. B. Mr. Rodriguez Would Qualify for Asylum Under the Acosta Test Because Former Membership in the PR25 Gang as a Teenager Would Constitute an Immutable Characteristic. The Court of Appeals erred in finding that Mr. Rodriguez did not fall under a social group with an immutable characteristic. Just as a police officer in El Salvador cannot undo his previous employment, Mr. Rodriguez will forever carry the burden of his past experiences. See Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988). A group of former gang members share a common past experience for which they would be persecuted. Matter of Acosta, 19 I. & N. Dec. at 233. The Court of Appeals conceded that several circuits have already found former gang membership to constitute an immutable characteristic. More specifically, former membership in the MS-13, an international gang with a long history of drug trafficking and persecution, would constitute an immutable characteristic. Martinez v. Holder, 740 F.3d 902, 911 (4th Cir. 2014). Especially given that a former gang member could never relinquish this 17

19 characteristic, they would fall under a particular social group. Benitez Ramos v. Holder, 589 F.3d 426, 429 (7th Cir. 2009). Additionally, the Sixth Circuit has found that a former gang member, even someone at the bottom of the gang s hierarchy, would possess an immutable characteristic due to his former membership. Urbina-Mejia v. Holder, 597 F.3d 360, 366 (6th Cir. 2010). In other words, the level of involvement in a gang would have no bearing on a person possessing the immutable characteristic of former gang membership. The Seventh Circuit also found that a former member of a violent organization in Kenya would fall under a particular social group, which bears a striking resemblance to Mr. Rodriguez past membership in the violent PR25 gang. Gatimi v. Holder, 578 F.3d 611, (7th Cir. 2009). The majority deviated from these cases in fear of granting asylum to criminals who would in turn become a danger to our society. This concern would essentially create an exemption from asylum from groups in which individuals engaged in violent activities. Arteaga v. Mukasey, 511 F.3d 940, 946 (9th Cir. 2007). The court in Arteaga worried that gang members would use asylum as a means of relocating to the United States and continuing to engage in illegal activities. Id. The Court of Appeals echoed this concern by pointing to the voluntary association with gangs as the crucial argument why these applicants should be exempt from asylum. R. at 11. However, Mr. Rodriguez renounced his membership in PR25 long ago and his clean record in the United States should put aside any fears that he could present a threat to our society. R. at 7. Furthermore, courts have allowed the immutable characteristic requirement to include instances in which the applicant engaged in voluntary association as long as that association was crucial to the individual s dignity. See Hernandez-Montiel v. INS, 225 F.3d 1084, (9th Cir. 2000). Mr. Rodriguez did not wish to become involved in the PR25 gang; he joined for the sake of protecting himself and his family. He faced constant threats and 18

20 beatings and as a teenager, he had no choice but to join a local gang. It was only after he joined that he realized the connection between the local gang and PR25. R. at 5. Therefore, his association with the PR25 was the result of coercion from other gangs and an attempt to subsist in a violent society. While Congress certainly did not intend for criminals to join gangs and relocate to the U.S. with ease, it seems reasonable that they would want to protect victims of gang persecution such as children that were forced to join the ranks of the PR25 gang. These victims such as Mr. Rodriguez should have an incentive to defect at the first available opportunity and seek asylum elsewhere. In the country of Honduron, the PR25 gang controls not only local gangs but also maintains a significant influence on the government of Honduron. R. at 6. Mr. Rodriguez has provided evidence that the gang pursues former members in order to intimidate and physically harm them. R. at 8. This illustrates that the PR25 would certainly consider Mr. Rodriguez s former membership as immutable. Even long after members leave the gang, the PR25 uses fear and coercion to get local citizens to divulge the location of former gang members. R. at 8. Through these methods, the PR25 warns not only former members but also citizens of Honduron that gang membership creates a life long trait that will always haunt them. In spite of being punished, Mr. Rodriguez would have no way to rid himself of his former status, except by rejoining the gang. These facts, as well as the precedent, corroborate Mr. Rodriguez s claim that former membership with the PR25 gang, as a teenager would constitute an immutable characteristic. Following the Acosta test, this immutable characteristic would make Mr. Rodriguez eligible for asylum as a member of a particular social group. 19

21 C. Mr. Rodriguez Would Still Qualify for Asylum Under the BIA s New Test. Although the new requirements of particularity and social distinction are unreasonable, Mr. Rodriguez meets both prongs. The objective categories of teenager and former gang member create a specific group to which Mr. Rodriguez belongs. The society of Honduron distinguishes and avoids former gang members, which satisfies the social distinction requirement. 1. Former membership in PR25 as a teenager meets the particularity requirement. The Court of Appeals found that people who had a former membership with the PR25 gang as teenagers would not qualify as a distinct social group. This requirement mostly seeks that groups have well-defined boundaries as opposed to broad categories of individuals. For example, wealthy Guatemalans would not constitute a particular social group unless they had other defining characteristics. Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 76 (BIA 2007). The category of wealthy individuals relies on a highly subjective category because even within Guatemalan society, many people would disagree as to who qualifies as wealthy. Id. By contrast, Mr. Rodriguez has provided two objective categories through which to view his particular social group. The record leaves no doubt that Mr. Rodriguez is a former member of PR25 and that this experience occurred when he was a teenager. R. at 5. The Court of Appeals deferred to the BIA s interpretation of particularity as a discrete class of persons. Matter of M-E-V-G-, 26 I. & N. Dec. at 239. The BIA has previously provided age as an example of a characteristic that could make a group of former gang members sufficiently discrete. Matter of W-G-R-, 26 I. & N. Dec. 208, 221 (BIA 2014). The Tenth Circuit has found that young people who resisted gang membership would qualify as a particular social group. Rivera Barrientos v. Holder, 658 F.3d 1222, 1231 (10th Cir. 2011). The further division 20

22 of the group as young persons created a narrow enough category that would by no means encompass all persons that were persecuted by gangs. Id. Likewise, Mr. Rodriguez falls under the distinct group of teenagers that were members of the PR25 gang. The category of age has a special significance because of the role of minors in our society. In countries where gangs have significant power, teenagers are particularly susceptible to gang violence and coercion USAID, Central America and Mexico Gang Assessment Report, April 2006, at 15. Therefore, they represent a specific sector of the population that requires care and protection from adults. As a 14 year old without a father, Mr. Rodriguez would have had a difficult time relocating and as the record indicates, he could not escape the targeted persecution of violent gangs. R. at 5. In Lukwago, a former child soldier was found to belong to a particular social group. Lukwago v. Ashcroft, 329 F.3d 157, 178 (3d Cir. 2003). The mere idea of teenagers being forced to wage war or join gangs certainly shocks the conscience of most ordinary persons. 2. Former membership in PR25 as a teenager would qualify as membership in a socially distinct group. The BIA has clarified that social visibility refers to how a society perceives a group, instead of some literally visual characteristic. Henriquez-Rivas v. Holder, 707 F.3d 1081, 1085 (9th Cir. 2013). The BIA has further explained that this requirement refers to visibility from the point of view of the society in question and not the persecutors. Matter of M-E-V-G-, 26 I. & N. Dec. at 240. Even in cases where the society would not normally interact with a particular group, if they became aware of the group, they would recognize the group s common characteristic. Matter of W-G-R-, 26 I. & N. Dec. at 217. The Court of Appeals erred in concluding that the society of Honduron would not perceive former teenage members of PR25 as a distinct social group. They focused on the fact that Mr. Rodriguez did not distinguish between the perception of 21

23 former PR25 members in Honduron and former teenage members of PR25. R. at 12. The distinction is an arbitrary one that the society of Honduron need not necessarily make. Mr. Rodriguez has established that the society avoids contact with former gang members. R. at 8. Beyond recognizing Mr. Rodriguez s tattoos, citizens of Honduron would not accept former gang members in their society because of their previous affiliation. R. at 8. This means the Honduran society differentiates between current and former gang members, whether by visual characteristics or through information provided by PR25. Therefore, by belonging to the larger category of former gang members, Mr. Rodriguez would already fulfill the social distinction requirement. Although Mr. Rodriguez left the PR25 gang and was a victim of their violence, employers of Honduron would not hire Mr. Rodriguez due to his former membership in the PR25 gang. R. at 8. Even if Mr. Rodriguez explained his circumstances and demonstrated, as shown in the record, that he has not engaged in any illegal activities since leaving the gang, employers would treat Mr. Rodriguez differently because they would perceive him as belonging to the particular social group of former gang member. This further proves that once Honduron s society becomes aware that Mr. Rodriguez belonged to the PR25 gang, they would recognize and distinguish the primary trait that defines Mr. Rodriguez s group, that of former gang members. If he returned to Honduron, Mr. Rodriguez would face unfair hostility from society at large and would also fear for his life due to persecution from the PR25 gang; these events would both result from the perception of Mr. Rodriguez as belonging to a very specific and wellrecognized group of persons within the country of Honduron. As a means of persecuting former gang members, the PR25 force local citizens to report on the location of former gang members. R. at 8. This means that in every corner of Honduron, the PR25 would ensure that the society at large would view Mr. Rodriguez as belong to a particular social group. Therefore, he meets the 22

24 social visibility requirement, in addition to the prongs of immutability and particularity, which places Mr. Rodriguez under a protected particular social group for asylum purposes. II. THE COURT OF APPEALS ERRED IN FINDING THAT THERE ARE SERIOUS REASONS TO BELIEVE THAT MR. RODRIGUEZ HAS COMMITTED A SERIOUS NONPOLITICAL CRIME UNDER 8 U.S.C. 1158(B)(2)(A)(III). Asylum shall not be granted to an alien if the Attorney General determines that there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States. 8 U.S.C. 1158(b)(2)(A)(iii) (2014). A sufficient, but not necessary, condition for a crime to qualify as a serious nonpolitical crime is if it involves acts of an atrocious nature. Matter of McMullen, 19 I. & N. Dec. 90, (BIA 1984). We agree with the finding of the Court of Appeals that Mr. Rodriguez s conduct does not involve acts of an atrocious nature such as murder or terrorism. R. at 15. However, because Mr. Rodriguez s crimes were neither serious nor nopolitical, the Court of Appeals erred in concluding that he had committed a serious nonpolitical crime. A. Mr. Rodriguez Has Not Committed a Serious Nonpolitical Crime Because None of Mr. Rodriguez s Acts Constitute a Serious Crime. The Court of Appeals erred in applying a balancing test evaluating the political nature of Mr. Rodriguez s actions without first considering whether he had committed a crime that was serious on its face. Regardless of whether a crime is political, it must be serious to be considered a serious nonpolitical crime. See Matter of Ballester-Garcia, 17 I. & N. Dec. 592 (BIA 1980) (evaluating whether a theft without any political value was a serious crime for 23

25 purposes of deciding whether applicant had committed a serious nonpolitical crime ). When it is unclear whether a crime is serious, as when it is an offense against property only, then such factors as the alien s description of the crime, the turpitudinous nature of the crime according to our precedents, the value of any property involved, the length of sentence imposed and served, and the usual punishments imposed for comparable offenses in the United States, are all proper considerations in attempting to decide whether or not a crime may have been serious. Id. at 595. Courts have also considered whether anyone was placed at risk of serious harm to evaluate whether the crime was serious. Matter of E-A-, 26 I. & N. Dec. 1, 6 (BIA 2012). The Court of Appeals erred in failing to properly apply these tests to Mr. Rodriguez s actions. When these standards are applied correctly to the facts surrounding Mr. Rodriguez s actions, there is substantial evidence to compel the conclusion that his actions were not serious crimes, which means that he has not committed a serious nonpolitical crime. 1. Safely burning one obsolete vehicle without harming any other people or property is not a serious crime. The Court of Appeals claimed that burning a car was a serious crime because of the danger and risk it caused, citing as authority Matter of E-A-, in which the applicant set passenger buses on fire. Matter of E-A-, 26 I. & N. Dec. 1. In Matter of E-A-, the petitioner would force the buses to stop by constructing roadblocks of wood and then require the passengers to exit before setting the vehicles on fire. Matter of E-A-, 26 I. & N. Dec. at 2. In determining that a fire is still a serious danger even when it causes no harm, Matter of E-A- relied upon the reasoning in U.S. v. Farish, 535 F.3d 815 (8th Cir. 2008). In Farish, the court found that setting fire to an empty house caused a substantial risk of death or serious bodily injury even though no one was injured because the fire could have easily spread to the adjoining residence and become difficult to control before the fire department arrived. Id. at

26 The fire that Mr. Rodriguez set was substantially different from the fires in Matter of E-A- and Farish because of the safety measures that Mr. Rodriguez insisted on taking. There is no evidence that the people responsible for the fires in Matter of E-A- or Farish took any safety precautions. In Farish, there was another residence nearby which could have caught fire, and in Matter of E-A-, there were wooden roadblocks nearby that could have caught fire, in addition to all of the passengers that had been forced out of the bus being burned. Mr. Rodriguez, on the other hand, controlled the situation in which he burned a vehicle, eliminating the risks present in the other cases. He made sure that no easily explosive parts remained in the car, burned the vehicle near a fire hydrant and away from civilian clustered areas, and kept fire extinguishers near the scene. R. at 6. While the group was burning the vehicle, they kept the fire under control. R. at 5-6. In Farish, it was due to pure chance that the fire didn t spread to the adjoining residence and become difficult to control. Farish, 535 F.3d at 825. But Mr. Rodriguez was not merely relying on chance. He relied on safety measures to ensure that the fire did not become difficult to control, harm any people, or damage any additional property. He never allowed a risk of harm to materialize. For that reason, burning the vehicle should not be considered a serious crime. In addition, the Court of Appeals failed to apply the test from Matter of Ballester-Garcia for evaluating the seriousness of a crime to Mr. Rodriguez s case. This test would only continue to diminish the seriousness of his actions. Two factors taken into consideration in the Ballester- Garcia test are the value of any property involved and the length of sentence imposed and served. Matter of Ballester-Garcia, 17 I. & N. Dec. at 595. No sentence was imposed on Mr. Rodriguez for burning the vehicle. This diminishes the seriousness of his crime. In addition, there was little or no value to the property involved in his crime because the only property 25

27 damaged was a vehicle that was already obsolete. Furthermore, the vehicle was burned with the owner s consent; the owner was a member of the group carrying out the burning. This fact further differentiates Mr. Rodriguez s act from other cases where burning vehicles was found to be a serious nonpolitical crime. See e.g., Chay-Velasquez v. Ashcroft, 367 F.3d 751, 755 (8th Cir. 2004) (finding that applicant had committed a serious nonpolitical crime for burning buses which served the civilian population ); I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 421 (1999) (finding that applicant had committed serious nonpolitical crime for setting about 10 buses on fire ); Matter of E-A-, 26 I. & N. Dec. at 5 (finding that applicant had committed a serious nonpolitical crime for the burning of transit vehicles and private cars ). Because the PR25 owned the car that they were burning, that act should not be considered a serious nonpolitical crime. Two other factors in the Ballester test overlooked by the Court of Appeals are the turpitudinous nature of the crime according to our precedents and the usual punishments imposed for comparable offenses in the United States. Matter of Ballester-Garcia, 17 I. & N. Dec. at 595. Various compilations of U.S. law have been used as the standard by which to evaluate the seriousness of crimes committed outside the U.S. See e.g., Matter of Rodriguez- Palma, 17 I. & N. Dec. 465, 469 (BIA 1980) (evaluating seriousness of crime committed in Cuba by definitions in Corpus Juris Secundum and in Title 18 of the United States Code); Matter of E-A-, 26 I. & N. Dec. at 4 (evaluating criminal nature of applicant s actions in Cote d Ivoire using the Model Penal Code as a standard). The court in Matter of Rodriguez-Palma found that if a crime is considered a felony in the United States, it should be considered a serious crime. 17 I. & N. Dec

28 Under U.S. law, most states would only consider Mr. Rodriguez s act a felony if it recklessly created a substantial risk of putting people or property in danger. Under the Model Penal Code, setting a fire is a felony only if it recklessly (a) places another person in danger of death or bodily injury; or (b) places a building or occupied structure of another in danger of damage or destruction. MODEL PENAL CODE (2015). Several states have reckless burning laws similar to that in the Model Penal Code. See, e.g., S.D. CODIFIED LAWS (2014). Arkansas s penal code also requires that the act of burning recklessly create a substantial risk of death or serious physical injury to any person. ARK. CODE ANN (2015). What Mr. Rodriguez did would not fall under these reckless burning statutes because he did not recklessly create a substantial risk of death or serious physical injury to any person, nor did he recklessly place a building or occupied structure of another in danger of damage or destruction. No people or property were recklessly placed at risk because Mr. Rodriguez took safety precautions to ensure this was the case. While there is no doubt that Mr. Rodriguez engaged in intentional burning, because he did not do so recklessly and did not place any other property or any person at risk of harm, his act cannot qualify as the felony of reckless burning in Arkansas or any state with a reckless burning statute modeled on the MPC. Since the act would not be considered a felony under U.S. law, it should not be considered a serious crime. Even if his act does qualify as reckless under the Model Penal Code, still not all states would consider his action a felony. For example, in Delaware, reckless burning is only a felony when it causes a certain amount of financial damages. When the total amount of pecuniary loss caused by the burning is less than $1,500, the act is considered a misdemeanor instead of a felony. DEL. CODE ANN. tit. 11, 804 (2015). Therefore, under Delaware law, Mr. Rodriguez s 27

29 act would certainly be only a misdemeanor, since the only damage was done to an obsolete vehicle which certainly would not be worth $1,500. Since Mr. Rodriguez s action would be at worst a misdemeanor in Delaware, his action in burning the vehicle should not be considered a serious crime. 2. Even if burning a vehicle under these circumstances is a serious crime, Mr. Rodriguez s participation in the burning should not be considered a serious crime because he participated in the crime while under duress. When evaluating Mr. Rodriguez s participation in the protest under U.S. law, we also have to consider the fact that he was acting under duress. According to the definition of duress in the Model Penal Code: It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist. MODEL PENAL CODE 2.09 (2015). Courts have also considered duress as a defense when evaluating the serious nonpolitical crime exception. The duress defense has been rejected in these cases only because the applicants lacked the factual basis to raise the defense, not because it was an improper legal defense. See Gallagher v. I.N.S., No , 1986 WL 16657, at *1 (6th Cir. Mar. 31, 1986) (rejecting the duress excuse because of testimony that the PIRA only asked him in a nice way to provide information on weapons usage, and that he was not fearful of reprisal by the PIRA for his refusal to assist them ); Urbina-Mejia v. Holder, 597 F.3d 360, 363 (6th Cir. 2010) (rejecting applicant s coercion argument because the facts suggested that he possessed a fair amount of autonomy in that he shared in the proceeds of his crimes and carried a firearm ). 28