No IN THE Supreme Court of the United States

No. 2010-530 IN THE Supreme Court of the United States January Term, 2012 ANITA KURZBAN, v. Petitioner, ATTORNEY GENERAL OF THE UNITED STATES Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR PETITIONER P8 Counsel for Petitioner i

QUESTIONS PRESENTED The issues certified on appeal are: (1) Whether a state conviction for possession of an unspecified amount of marijuana constitutes an aggravated felony under federal immigration law causing petitioner to be ineligible for asylum. (2) Whether under the Immigration and Nationality Act, persecution in retaliation for the acts of a family member is persecution on account of membership in a family for withholding of removal purposes. ii

TABLE OF CONTENTS QUESTIONS PRESENTED...ii TABLE OF CONTENTS...iii JURISDICTIONAL STATEMENT... 2 STATEMENT OF THE CASE... 2 I. Statement of Facts... 2 II. Procedural History... 4 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 6 I. THE FOURTEENTH CIRCUIT SHOULD BE REVERSED BECAUSE A STATE CONVICTION FOR POSSESSION OF AN UNSPECIFIED AMOUNT OF MARIJUANA DOES NOT CONSTITUTE AN AGGRAVATED FELONY UNDER FEDERAL IMMIGRATION LAW AND RATHER FITS WITHIN 21 U.S.C. 841(b)(4) AS A MISDEMEANOR... 6 A. The State Conviction is Not Categorically an Aggravated Felony Because It Would Not Always Be Punishable As a Felony under Federal Law and the Present Situation Fits Within the Exception in 21 U.S.C. 841(b)(4).... 7 B. It is Irrelevant Whether the Conviction is a Mitigating Sentencing Provision and Whether the State has the Burden of Proof.... 9 II. BECAUSE MS. KURZBAN FACES PERSECUTION DUE TO HER MEMBERSHIP IN THE KURZBAN FAMILY AND THE PERSECUTORS ARE MOTIVATED BY A DESIRE TO SILENCE HER FATHER IN HIS CAPACITY AS A JOURNALIST, MS. KURZBAN QUALIFIES FOR WITHHOLDING OF REMOVAL PURPOSES UNDER THE IMMIGRATION AND NATIONALITY ACT.... 11 A. The Distinction Between Persecution Motivated by Revenge and Persecution Demonstrating a Generalized Desire to Hurt a Family Runs Counter to the Purpose and Text of the Law.... 13 B. The Persecution of the Kurzban Family Was Motivated by a Generalized Desire to Hurt Ms. Kurzban s Family and Silence the Activities of the Press... 14 CONCLUSION... 15 CERTIFICATION... 15 iii

TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES: Lopez v. Gonzales, 549 U.S. 47, 57 (2006)...6, 7, 8, 9 Taylor v. U.S., 495 U.S. 575, 600 (1990)...7, 9, 10, 11 Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010)...7, 9, 10, 11 INS v. Stevic, 104 S.Ct. 2489 (1984)...12 UNITED STATES COURT OF APPEALS CASES: Martinez v. Mukasey, 551 F.3d 113, 119 20 (2d Cir. 2008)...7 Jeune v. Attorney Gen., 476 F.3d 199, 205 (3rd Cir. 2007)...7, 8, 9 Zequiri v. Mukasey, 529 F.3d 364 (7th Cir. 2008)...11, 12 De Souza v. INS, 999 F.2d 1156 (7th Cir. 1993)...11 Zubeda v. Ashcroft, 333 F.3d 463 (3rd Cir. 2003)...12 Torres v. Mukasey, 551 F.3d 616 (7th Cir. 2008)...7, 12, 13 Iliev v. INS, 127 F.3d 638 (7th Cir. 1997)...12 Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th Cir. 2004)...12 Jie Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004)...12 Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1993)...12 Borovsky v. Holder, 612 F.3d 917 (7th Cir. 2010)...12 Tarraf v. Gonzales, 495 F.3d 525 (7th Cir. 2007)...12 Demiraj v. Holder, 631 F.3d 194 (5th Cir. 2011)...13, 14 BOARD OF IMMIGRATION APPEALS CASES: See Matter of B-, 20 I&N Dec. 427 (BIA 1991)...6 iv

STATUTES: 21 U.S.C. 841(b)(4)...6, 7, 8, 9, 10, 11 8 U.S.C. 1231(b)(3)(iii)...6 21 U.S.C. 841(a)(1)...7 21 U.S.C. 802(6)...7 21 U.S.C. 812 Schedule I(c)(10)...7 21 U.S.C. 841(b)(1)(D)...7 21 U.S.C. 844...7 8 U.S.C. 1231(B)(3)(A)...11, 13 v

No. 2010-530 IN THE Supreme Court of the United States January Term, 2012 ANITA KURZBAN, v. Petitioner, ATTORNEY GENERAL OF THE UNITED STATES Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR PETITIONER P8 Counsel for Petitioner TO THE HONORABLE UNITED STATES SUPREME COURT: Petitioner, Ms. Anita Kurzban, respectfully submits this brief in support of its request that this Court reverses the decision of the Court of Appeals for the Fourteenth Circuit. 1

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. STATEMENT OF THE CASE I. Statement of Facts Petitioner, Anita Kurzban, is the daughter of John Kurzban, a television journalist in Atos, Purificia. (R. 4.) In May of 2004, when Ms. Kurzban was twenty-three, Ms. Kurzban and her father fled for the United States. (R. 4.) Threatened with persecution by organized crime in Purificia, she is now asking for asylum and the withholding of removal. (R. 7.) In 2004, Mr. Kurzban investigated the mob in Atos, a powerful organization that completely controlled the city. (R. 4.) Despite death threats, in April of 2004 Mr. Kurzban produced and aired a documentary on national television entitled The Mob of Atos and Its Leader. (R. 4.) The documentary was about Caro Tortolucci, a wealthy Purifican businessman who had made his fortune in the sex and drug trafficking industry. (R. 4.) Soon after Mr. Kurzban s documentary aired, he received threatening notes at home and work. (R. 4.) Mr. Kurzban was beaten and his car was set on fire. (R. 4.) As they left, one of Mr. Kurzban s assailants told him that [t]his is what happens when you don t keep your mouth shut. Mr. Kurzban did not call the police because of the connection between Atos law enforcement and the mob that threatened him. (R. 4.) A month after the documentary was shown, Mr. Kurzban and his daughter, the Petitioner, fled Purifica for the United States. (R. 4.) The two of them entered the country without inspection and settled in the city of Crawford in the state of Fraternia. (R. 4.) The following month, Mr. Kurzban heard that Mr. Tortolucci s men had set his house in Purifica 2

on fire while his wife was still inside. (R. 4.) Fearing for his family in Purifica, Mr. Kurzban returned home, but left Ms. Kurzban in the United States for her own safety. (R. 5.) When back in Purifica, Mr. Kurzban was kidnapped and shot because of his documentary. Mr. Kurzban survived the shooting, but when he reported the incident to the police, they refused to investigate. (R. 5.) In further retaliation for the documentary, Mr. Tortolucci and his associates kidnapped and beat Ms. Kurzban s brother. (R. 5.)While they were torturing Ms. Kurzban s brother, Mr. Tortolucci said, The Kurzban family is going to pay for everything. This is what you get for having a father like yours. Because of the threat to their safety and the refusal of law enforcement to act, most of the Kurzban family remaining in Purifica went into hiding. (R. 5.) After hearing what happened to her family in Purifica, Ms. Kurzban decided to apply for asylum. (R.5.) She was terrified that she would suffer the same fate as her family members if she was removed to Purifica. (R.5.) However, on August 5, 2004, Ms. Kurzban was arrested after a search of her boyfriend s home, where she had been living, revealed marijuana. (R.5.) She was charged with a violation of Fraternia Penal Code Section 1173(a). (R. 5). Afraid of having been arrested, she pled no contest to attempted possession of an unspecified amount of marijuana with intent to deliver under Fraternia Code Section 1173(a) and fined $55. (R. 6.) The conviction documents submitted by the government did not specify the amount of marijuana in Ms. Kurzban s possession or state whether she was distributing marijuana for money. (R. 6.) Two months later, Immigrations and Customs Enforcement ( ICE ) detained Ms. Kurzban and placed her in removal proceedings. (R. 6.). ICE charged Ms. Kurzban with being removable pursuant to INA 212(a)(6)(A)(i), for having entered without inspection and being present without admission, as well as INA 237(a)(2)(A)(iii) for committing an aggravated felony. (R. 6.) Ms. Kurzban filed for asylum and withholding of removal as a defense to 3

removal from the United States. (R. 7.) She argued that her state conviction was not an aggravated felony and that she had a well-founded fear of persecution if she were to return to Pruifica and Mr. Tortolucci. II. Procedural History Unable to afford an attorney, Ms. Kurzban represented herself in front of the Immigration Judge who sustained both charges of removability and denied her application for asylum. (R. 7.)The Judge found that even if Ms. Kurzban was eligible to apply for withholding of removal, she had not shown that her fear of persecution was on account of her membership in her family. (R. 7.) On appeal, the Board of Immigration Appeals ( BIA ) affirmed the decision of the Immigration Judge. (R. 7.) The Fourteenth Circuit affirmed the decision of the BIA and concluded that Ms. Kurzban was convicted of an aggravated felony and that any problems she would face in Purifica were on account of revenge for her father s documentary and not because of her membership in the Kurzban family. (R. 11-14.) Ms. Kurzban now appeals, asking the Court to reverse the Fourteenth Circuit, find her eligible for asylum and determine that persecution in retaliation for the acts of a family member is persecution on account of membership in that family. 4

SUMMARY OF THE ARGUMENT Ms. Kurzban s claim succeeds on both issues for which this Court granted certiorari. First, Ms. Kurzban s state conviction for possession of an unspecified amount of marijuana does not constitute an aggravated felony under federal immigration law. Second, under the Immigration and Nationality Act ("INA ) retaliation for the acts of a family member is persecution on account of membership in a family for withholding of removal purposes. To qualify for asylum, applicants must not have been convicted of a particularly serious crime, which includes an aggravated felony. Courts use the hypothetical federal felony rule to determine whether a state conviction is an aggravated felony. Courts generally do not defer to the Board of Immigration Appeals ( BIA ) when they use this rule because the rule deals with interpreting state and criminal statutes. Instead, Courts ask whether the state conviction includes the elements of a felony punishable under the Controlled Substance Act ( CSA ). Here, the state drug offense under which Ms. Kurzban was convicted is not an aggravated felony because the offense does not include the elements of a felony punishable under the CSA. Instead, the offense includes the elements of a misdemeanor punishable under the CSA. Moreover, it does not matter whether the federal misdemeanor is a stand-alone offense or a sentencing limitation according to established Supreme Court precedent. Finding possession of an unspecified amount of marijuana an aggravated felony would create an impermissible construction of a federal statute which was not within Congress intent. The INA mandates the withholding of removal of foreign nationals if the alien s life or would be threatened in that country because of the alien s membership in a particular social group. Courts consider belonging to a family as membership in a particular social group. Here, in denying Ms. Kurzban s application for withholding of removal, the Fourteenth 5

Circuit incorrectly relied upon a distinction between persecution motivated by personal desires for revenge, which are not grounds for withholding and a generalized desire to hurt the family, which are. This interpretation of the INA relies upon either the temporal maturity of the persecution or the motivations of the persecutor, neither of which are relevant to the text or purpose of the INA, A daughter is being persecuted because of who she was and is entitled to relief. ARGUMENT I. THE FOURTEENTH CIRCUIT SHOULD BE REVERSED BECAUSE A STATE CONVICTION FOR POSSESSION OF AN UNSPECIFIED AMOUNT OF MARIJUANA DOES NOT CONSTITUTE AN AGGRAVATED FELONY UNDER FEDERAL IMMIGRATION LAW AND RATHER FITS WITHIN 21 U.S.C. 841(b)(4) AS A MISDEMEANOR. The Fourteen Circuit Court of Appeals should be reversed because a state conviction for possession of an unspecified amount of marijuana falls under the 21 U.S.C. 841(b)(4) exception and does not qualify as an aggravated felony within the ambit of the Immigration and Nationality Act ( INA ) and the Illegal Immigration Reform and Immigrant Responsibility Act ( IIRIRA ). In addition, it is irrelevant whether the state conviction creates a stand-alone misdemeanor offense or is a mandatory sentencing limitation. Therefore, the Fourteenth Circuit decision should be reversed. Under the IIRIRA, individuals convicted of a particularly serious crime are not eligible to apply for asylum. 8 U.S.C. 1231(b)(3)(iii). Conviction of an aggravated felony constitutes commission of a particularly serious crime for asylum purpose. See Matter of B-, 20 I&N Dec. 427 (BIA 1991). A state drug offense can constitute an aggravated felony under the hypothetical federal felony rule. Under this rule, a state offense whose elements include the elements of a felony punishable under the [Controlled Substance Act] [ CSA ] is an aggravated felony. Lopez v. Gonzales, 549 U.S. 47, 57 (2006). The rule takes a formal categorical approach, 6

looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions. Taylor v. U.S., 495 U.S. 575, 600 (1990). The CSA prohibits a person from possess[ing] with intent to distribute a controlled substance. 21 U.S.C. 841(a)(1). A controlled substance under federal law includes marijuana. 21 U.S.C. 802(6), 812 Schedule I(c)(10). As a result, the attempt to possess with the intent to deliver any amount of marijuana less than fifty kilograms is punishable of not more than five years in prison under federal law. 21 U.S.C. 841(b)(1)(D). However, anyone who violates Section 841(a) by distributing a small amount of marijuana for no remuneration will be punished under the misdemeanor provisions of 21 U.S.C. 844. Ms. Kurzban is not subject to the aggravated felony provisions for several reasons. First, the exception in 21 U.S.C. 841(b)(4) applies to this case and Ms. Kurzban s conduct is not punishable as a felony under federal law. See Martinez v. Mukasey, 551 F.3d 113, 119 20 (2d Cir. 2008); Jeune v. Attorney Gen., 476 F.3d 199, 205 (3rd Cir. 2007). Second, whether section 841(b)(4) creates a stand-alone misdemeanor offense or is a mandatory sentencing limitation is irrelevant to the question of whether a state conviction must be regarded as a felony conviction under 21 U.S.C. 841(b)(1)(D). See Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2789 90 (2010). Therefore, the Fourteenth Circuit Court s decision should be reversed. A. The State Conviction is Not Categorically an Aggravated Felony Because It Would Not Always Be Punishable As a Felony under Federal Law and the Present Situation Fits Within the Exception in 21 U.S.C. 841(b)(4). Ms. Kurzban s state conviction for possession of an unspecified amount of marijuana does not amount to an aggravated felony. A state offense constitutes a felony punishable under the Controlled Substances Act only if it proscribes conduct punishable as a felony under that federal law. Lopez v. Gonzales, 549 U.S. 47, 60 (2006). Although the BIA 7

determined that Ms. Kurzban s state drug conviction was an aggravated felony, this petition presents a pure question of interpreting state and federal criminal statutes that courts review de novo. Because the statute under which Ms. Kurzban was convicted aligns with the elements of the exception under 21 U.S.C. 841(b)(4), Ms. Kurzban s conviction does not constitute an aggravated felony. Therefore, the Fourteenth Circuit Court s decision should be reversed. Only conduct punished as a felony under federal law can constitute an aggravated felony under the IIRIRA. Id. In effect, it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers. Id. at 59. For example, in Lopez v. Gonzales, the applicant petitioned for review of a decision by the BIA, which had ordered the applicant removed. Id. at 47. The applicant in that case pled guilty to South Dakota charges equivalent to possession of marijuana, a state felony. Id. However, the CSA treated the felony as a misdemeanor despite the crime being a felony under state law and the Supreme Court held that possessing the drug did not amount to an aggravated felony. Id. at 60. The Court reasoned that because mere possession was not a felony under the CSA, Congress did not mean that courts should ignore the statutory scheme of felonies and misdemeanors whenever a State chose to punish a given act more heavily. Id. at 58. Likewise, in Jeune v. Attorney General of U.S., the applicant petitioned for review of a BIA decision for his removal. 476 F.3d 199, 200 (2007). The applicant pled guilty to possession of marijuana and was sentenced to five years probation. Id. at 201. However, the Second Circuit held that the applicant s conviction did not constitute an aggravated felony under the hypothetical federal felony route because the exception under 21 U.S.C. 841(b)(4) applied. Id. at 205. The Second Circuit explained that since the Pennsylvania statute under 8

which the applicant was convicted did not contain remuneration as an element, the Court contemplated situations in which such a conviction would not constitute an aggravated felony, and therefore remanded the case to the BIA. Id. In the present case, the statute under which Ms. Kurzban was convicted falls within the exception under 21 U.S.C. 841(b)(4). Like the state offense in Jeune, Fraternia Code Section 1173(b) has no remuneration element. In addition, it also entails small amounts as referred to by Section 841(b)(4). As to the hypothetical felony route, the reviewing court must rely only on what the convicting court must necessarily have found to support the conviction. Id. at 205. In addition, courts should only look at the statutory definitions of the offenses and not to the facts. Taylor, 495 U.S. 575, 600 (1990). This court cannot determine whether the conviction under Fraternia law necessarily includes a finding of remuneration because the conviction documents did not specify the amount of marijuana in Ms. Kurzban s possession and did not state whether she was distributing marijuana for money. As a result, the state law conviction falls within the exception under 21 U.S.C. 841(b)(4) and will be treated as a misdemeanor under federal law. Lopez, 549 U.S. 47, 60 (2006). Therefore, the conduct of the Ms. Kurzban is not necessarily punishable as a felony under federal law and does not constitute an aggravated felony for asylum purposes. B. It is Irrelevant Whether the Conviction is a Mitigating Sentencing Provision and Whether the State has the Burden of Proof. The Fourteenth Circuit mistakenly required that the statute create a stand-alone misdemeanor offense before it can be considered in the hypothetical felony analysis. Instead, it is irrelevant whether the exception under 21 U.S.C. 841(b)(4) creates a stand-alone misdemeanor offense or is a mandatory sentencing limitation. See Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2789 90 (2010). In addition, under the categorical approach, it is 9

irrelevant whether the state has the burden to prove the elements of the exception. The exception under 21 U.S.C. 841(b)(4) applies and Ms. Kurzban is not subject to an aggravated felony for asylum purposes. Courts look at the actual conviction and do not look into facts outside of the record of conviction. Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2589 (2010). In addition, courts using a formal categorical approach look only to the statutory definitions of the prior offenses, and not to the facts underlying those convictions. Taylor v. U.S., 495 U.S. 575, 600 (1990). For example, in Carachuri-Rosendo, the petitioner faced deportation after committing two misdemeanor drug offenses in Texas. 130 S. Ct. 2577, 2578 (2010). Texas law authorized a sentencing enhancement to a felony if the State proved that petitioner had been previously convicted of a similar offense, but Texas did not seek an enhancement. Id. Therefore, the Supreme Court held that subsequent simple possession offenses were not aggravated felonies when the state conviction was not based on the fact of a prior conviction. Id. at 2579. The Court reasoned that not only must the conduct be punishable as a felony under federal law but the defendant must also have been actually convicted of a crime that is itself punishable as a felony under federal law. Id. at 2589. In addition, the Supreme Court did not look into whether the enhancement provision was stand-alone or a sentencing factor. See id. at 2590. Likewise, in Taylor v. U.S., the respondent pled guilty to a possession of a firearm by a convicted felon and was subject to an enhanced sentence because of prior convictions for burglary. 495 U.S. 575, 575 (1990). The Supreme Court held that an offense constituted burglary for purposes of sentence enhancement if either its statutory definition substantially corresponds to generic burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant. Id. at 602. The Supreme Court used this categorical approach and refused to adopt a factual approach that would look to the facts underlying the prior convictions. Id. at 600. As result, 10

the Court did not require the State to prove additional facts for sentence enhancement. Id. at 601. In the present case, because the Court uses a categorical approach, the State would not have to prove the elements of the exception. In effect, the categorical approach entails a pure legal inquiry only, like the analysis in Taylor. In addition, like the applicant in Carachuri-Rosendo, Ms. Kurzban was convicted of an offense which does not necessarily constitute a felony under federal law. This is sufficient to find that Ms. Kurzban s conviction does not constitute an aggravated felony for asylum purposes. See Carachuri-Rosendo, 130 S. Ct. 2577, 2589 90 (2010). As a result, this Court need not look into whether the exception under 21 U.S.C. 841(b)(4) constitutes a standalone conviction or a sentencing limitation in accordance with precedent. Therefore, Ms. Kurzban was not convicted of an aggravated felony for asylum purposes. II. BECAUSE MS. KURZBAN FACES PERSECUTION DUE TO HER MEMBERSHIP IN THE KURZBAN FAMILY AND THE PERSECUTORS ARE MOTIVATED BY A DESIRE TO SILENCE HER FATHER IN HIS CAPACITY AS A JOURNALIST, MS. KURZBAN QUALIFIES FOR WITHHOLDING OF REMOVAL PURPOSES UNDER THE IMMIGRATION AND NATIONALITY ACT. The Immigration and Nationality Act (INA) governs the withholding of removal of foreign nationals at risk of persecution should they be deported from the United States. INA 241(b)(3)(B), 8 U.S.C. 1231(B)(3)(A). The INA prohibits the removal of a foreign national to a third country if the alien s life or freedom would be threatened in that country because of the alien s membership in a particular social group. INA 241(b)(3)(B). Persecution entails punishment or the infliction of harm for political, religious, or other reasons that the United States does not recognize as legitimate. Zequiri v. Mukasey, 529 F.3d 364, 370 (7th Cir. 2008) (quoting De Souza v. INS, 999 F.2d 1156, 1158 (7th Cir. 1993)). 11

An applicant must show a clear probability that her life would be threatened in the proposed country of deportation. INS v. Stevic, 104 S.Ct. 2489, 2501 (1984). Courts interpret clear probability as a preponderance of the evidence. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3rd Cir. 2003). If the applicant has demonstrated a clear probability, the Attorney General must grant removal. Id. A family is a cognizable social group. Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008) (citing Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997)); Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004); Jie Lin v. Ashcroft, 377 F.3d 1014, 1028 (9th Cir. 2004); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993) ("There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.") The Kurban family has been repeatedly subject to persecution: after exposing Caro Tortolucci, Ms. Kurzban s father was beaten, kidnapped and shot, Ms. Kurzban s brother was kidnapped and beaten, and the Kurzban s house was set on fire while Ms. Kurzban s mother was inside. There is no evidence that Ms. Kurzban s brother or mother were attacked for any other reason than their membership in the Kurzban family. The applicant must present some evidence of particularized or personal persecution. Zequiri v. Mukasey, 529 F.3d 364, 371 (7th Cir. 2008). Here, there is considerable evidence that the persecution was particularized. During the beating of Ms. Kurban s brother, Mr. Tortulucci said, the Kurzban family is going to pay for everything. The persecution has caused much of the family to go into hiding. Discrimination may constitute persecution only if the government perpetrates it or is unable or unwilling to protect [the applicant] from the responsible parties. Borovsky v. Holder, 612 F.3d 917, 922 (7th Cir. 2010) (quoting Tarraf v. Gonzales, 495 F.3d 525 (7th Cir. 2007)). In Atos, the police and the mob are strongly connected. The Kurzban family has 12

survived several beatings, kidnappings, a shooting, and the arson of their house and car. The police have done nothing, explicitly refusing to investigate on at least one occasion. A. The Distinction Between Persecution Motivated by Revenge and Persecution Demonstrating a Generalized Desire to Hurt a Family Runs Counter to the Purpose and Text of the Law. Like the Fourteenth Circuit did in this case, the Fifth Circuit has drawn a distinction between persecution of a family motivated by criminal intent, personal vendettas, or personal desires for revenge, which are not grounds for withholding and a generalized desire to hurt the family, which are. Demiraj v. Holder, 631 F.3d 194, 199-200 (5th Cir. 2011) (holding a family targeted to hurt the patriarch persecuted because of a quintessentially personal motivation and not entitled to withholding). The Fifth Circuit distinguishes Demiraj from Torres v. Mukasey, 551 F.3d 616 (7th Cir. 2008) (holding a brother persecuted because of the actions of his three siblings entitled to withholding), because the persecutors had generalized their resentment of the brothers into a vengeful hatred of an entire family. Demiraj, 631 F.3d at 199 n.6. Requiring that persecution be motivated by a generalized desire to hurt a family and that the persecution be somehow particularized sets too high a bar. This distinction relies upon either a temporal or quantitative difference: the cases are distinguished because one conflict has matured into a more abstract form of hate or because hatred of a family due to the actions of three brothers is somehow different than hatred of a family due to the actions of one father. But neither of these distinctions have anything to do with the purpose of asylum law, which is to which is to honor a moral obligation to protect people who are threatened with persecution because of characteristics that cannot be changed or should not be required to change. Demiraj, 631 F.3d at 203 (Dennis, Circuit Judge, dissenting). It is not a daughter s fault that 13

her father is the victim of persecution, just as it is not a brother s fault that his siblings are hated. Moreover, the text of the law says nothing about the motivations of the persecutors, but instead provides a blanket bar on the removal of an alien if they are a member of a particular social group. INA 241(b)(3)(B), 8 U.S.C. 1231(B)(3)(A). The text does not carve out an exception for persecutions motivated by revenge. To do so would either endanger religious and ethnic communities that are targeted because of a prejudiced individual s desire for vengeance or require a finding that membership in a family is somehow different than other immutable characteristics. B. The Persecution of the Kurzban Family Was Motivated by a Generalized Desire to Hurt Ms. Kurzban s Family and Silence the Activities of the Press. Unlike in Demiraj v. Holder, there is nothing personal about the persecution of the Kurzban family. 631 F.3d 194, 199-200 (5th Cir. 2011). There is no evidence that friends of Mr. Kurzban were similarly attacked. If Mr. Tortolucci was interested in nothing more than hurting Mr. Kurzban, all of those close to the journalist would have been at risk. Instead, it was just the family that was persecuted. Ms. Kurzban s father was targeted because he was a member of the press doing his job. The threats against his life began with his documenting the activities of Mr. Tortolucci. While Mr. Tortolucci said, this [beating of Ms. Kurzban s brother] is what you get for having a father like yours, the identity of Mr. Kurzban as anything but a journalist was irrelevant. Mr. Tortolucci sits atop a large criminal enterprise that all but controls the government of Atos. It was in that capacity that Mr. Tortolucci acted against the Kurzban family. Mr. Kurzban successfully exposed Mr. Tortolucci to the world, but it was not hatred of Mr. Kurzban that solely motivated Mr. Tortolucci to attack Mr. Kurzban s family. Shortly after 14

beating Mr. Kurzban and setting the journalist s car on fire one of Mr. Kurzban s assailants provided some evidence of Mr. Tortolucci s motives when he said, This is what happens when you don t keep your mouth shut. Many of these crimes were public. In particular, the burning down of Ms. Kurzban s family home was a particularly visible signal. Mr. Tortolucci s desire was to prevent the next expose of his corrupt empire as much as it was to inflict pain upon the author of the last one. CONCLUSION The Fourteenth Circuit has misinterpreted the Immigration Nationality Act and the Illegal Immigration Reform and Immigrant Responsibility Act. Petitioner s state conviction does not constitute an aggravated felony for asylum purposes and Petitioner was persecuted on account of her family membership for withholding removal purposes. For these reasons, Petitioner respectfully prays this Court to reverse the Fourteenth Circuit decision. CERTIFICATION All team members understand the Rules of the Competition and have adhered to all rules in the writing of this brief. We have not received any assistance in writing this brief. 15