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. 2014 CONFERENCE Introduction What is a Particular Social Group (PSG)? 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) Evolution of PSG Legal Standard Matter of S-E-G & Matter of E-A-G-: Social visibility and particularity now required Evolution of PSG Legal Standard Circuit Courts Respond 1st, 2nd, 5th, 10th, 11th: Defer in whole or part Ahmed v. Holder, 611 F.3d 90 (1st Cir. 2010) Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2011) Velasquez-Otero v. U.S. Atty. Gen., 456 Fed. Appx. 822 (11th Cir. 2012) (unpublished) Evolution of PSG Legal Standard Circuit Courts Respond 3rd, 7th, & 9th: Reject Social Visibility and Particularity in whole or part Valdiviezo-Galdamez v. Atty. Gen., 663 F.3d 582 (3d Cir. 2011) Evolution of PSG Legal Standard Circuit Courts Respond 3rd, 7th, & 9th: Reject Social Visibility and Particularity in whole or part Gatimi v Holder, 578 F.3d 611 (7th Cir. 2009) Benitez-Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009) Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) Evolution of PSG Legal Standard Circuit Courts Respond 3rd, 7th, & 9th: Reject Social Visibility and Particularity in whole or part Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) Evolution of PSG Legal Standard Matter of M-E-V-G- & Matter of W-G-RSocial Visibility now Social Distinction Reaffirmed 3-part test Evolution of PSG Legal Standard 3-Part Test for PSG Analysis (2014) 1. Common, immutable characteristic 2. Social distinction 3. Particularity Current Trends in PSG Claims Analysis for a PSG Claim 1. Identify a cognizable group under 3part test 2. Prove membership in the group 3. Establish nexus between persecution and membership in group Analysis for a PSG Claim Identify a cognizable group under 3part test Challenges: 1. Increased Evidentiary Burden 2. PSG no longer parallel with other 4 grounds 3. Troubling particularity dicta Analysis for a PSG Claim Identify a cognizable group under 3part test Challenges Cont’d: 4. Homogeneity of groups 5. Size of groups 6. Is meeting both social distinction and particularity possible? Analysis for a PSG Claim Prove membership in the group Analysis for a PSG Claim Nexus: establish past persecution or a well-founded fear of persecution on account of that membership Analysis for a PSG Claim Nexus “One Central Reason” Direct or Circumstantial Evidence PSG “Hot Topics” Gang-based PSG Claims Types of Gang-based claims – What has worked and what hasn’t? Types of Gang-based claims: Resistance to Recruitment Witness or informant Family membership Gender Former Gang membership Gang-based PSG claims: Other Challenges Nexus Internal Relocation Gender-based PSG claims What has worked and what hasn’t? 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 Types of Gender-based PSG claims Domestic Violence Matter of R-A- & Matter of L-RMatter of A-R-C-G- Gender-based PSG claims Other Challenges Nexus Government unable/unwilling to protect Internal Relocation Practice Pointers for PSG Claims Practice Pointers Client should understand basis of claim Other bases: FGM, DV, Prior harm as basis for “other serious harm” claim (8 CFR 208.13(b)(1)(iii)(B) or humanitarian asylum claim 8 C.F.R. 208.13(b)(1)(iii)(A) Practice Pointers Client should understand basis of claim Ask about FGM, DV at beginning Explain why you are asking about sensitive issues Practice Pointers Argue for case-by-case determination based on: - specific facts - evidence of record Be creative in formulating PSG 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 Practice Pointers Matter of Fefe: IJ cannot rely exclusively on I-589 to make decision Use a PSG that has been used before Practice Pointers Use published decisions Use decisions from your Circuit/other Circuits Use unpublished decisions from list serves or Lexis/Westlaw 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 Practice Pointers Establish your record with Evidence Practice Pointers Establishing your record 1. Testimony and Affidavits 2. Use Experts for context 3. Documentary Evidence 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 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 Practice Pointers Use Experts to Establish - Socio-political context -Social distinction and particularity -Nexus -Ability/willingness of state to protect -Relocation options 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 Practice Pointers - Don’t forget other protected grounds - Don’t forget about CAT – explain pros/cons -Brief it!! Remember IJs and AOs know basics Practice Pointers Litigate like you may have to appeal -Challenge BIA’s additional requirements to preserve issue -Attempt to meet additional requirements 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 Thanks for Attending!!