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  1. BIA Twists Logic To Reach Right Asylum Social Group Result, Pt. 2. By Roger Algase

    Updated, September 30, 10:36 am:

    In my September 29 Immigration Daily "blogging", I discussed the BIA's barely coherent attempt to define the three requirements for showing that one is a member of a "social group" for asylum purposes in the recent case of Matter of A-R-C-G, 26 I&N Dec. 388 (August 26, 2014).

    My September 29 comments were directed only at the issue of what constitutes a "social group" (sometimes referred to a "particular social group", or "PSG"). I only tangentially mentioned the related, but distinct, requirement in asylum cases of showing that one has a fear of persecution "on account of" membership in the PSG in question. This is sometimes called the "nexus" requirement.

    However, before someone seeking asylum can even reach the "nexus" issue, he or she must show that the alleged PSG is recognizable for asylum purposes. If the claimed PSG does not actually exist as a matter of asylum law. it does not matter whether or not one was persecuted because of membership in the social group in question.

    In the above BIA case, the DHS had conceded that the woman seeking asylum had met the "nexus" requirement, i.e. that the claimed persecution was "on account of" her membership in the alleged PSG. Therefore, the decision did not discuss the "nexus" requirement, except to make a general statement that whenever "nexus" is in dispute it "will depend on the facts and circumstances of the individual claim".

    Its decision only dealt with the question whether the claimed PSG, i.e. "married women in Guatemala who are unable to leave their relationship" could be recognized as a PSG for asylum purposes. (As I pointed out in my previous comment, the DHS had conceded this point as well, but the BIA decided to discuss it anyway.)

    My colleague and distinguished asylum law authority Nolan Rappaport, in his comment to my above September 29 post, provides a detailed and erudite discussion of the "nexus" issue.

    However, since "nexus" was not an issue in the A-R-C-G- case (having been conceded by the DHS, as pointed out above), and was not discussed by the BIA in that case except in passing, my September 29 comments about the above case did not concern that issue and it will not be covered further in my discussion of that case, which is limited to the issue that the BIA actually dealt with in its decision, namely what constitutes a PSG.

    This discussion will be continued in my forthcoming comments.

    Nolan also mentions the Violence Against Women Act (VAWA) as a possible alternative to asylum as a remedy for victims of spousal abuse. But VAWA only applies to victims (of either sex) of abuse at the hands of USC or LPR spouses. It does not cover victims of abuse resulting from marriage or other relationships with people are not US citizens or permanent residents. Therefore, VAWA cannot be substitute for asylum.

    Nolan has suggested expanding VAWA in a personal communication to me. I fully support his idea.

    To be continued.

    Updated 09-30-2014 at 09:47 AM by ImmigrationLawBlogs

  2. BIA Twists Logic to Reach Right Result in "Social Group" Asylum Case. By Roger Algase

    The following comments, which are Part 1 of a 3-part series, have been revised and expanded as of 12:35 pm on September 27.

    Ever since the BIA's almost 30 year old decision in Matter of Acosta, 19 I&N Dec. 211(1985), the concept of persecution because of membership in a "Particular Social Group" (referred to below as a "PSG"), has been a major barrier to asylum, because of a restrictive definition of this term which the BIA has continued to hold to, at least in principle. However, in a few recent decisions, the BIA has applied this term more flexibly and reasonably in practice (sometimes with "friendly persuasion" from the federal circuit courts or the Attorney General).

    This comment will take a closer look at one such very recent decision, in which the BIA had to use twisted and internally contradictory logic in order to uphold the rigid Acosta definition of a PSG in principle, while reaching a fair and realistic result in practice. This decision adds to the already growing support to be found elsewhere for changing the definition of PSG to make it more attuned to the reality of persecution faced by many people in, for example, certain Central American countries which are unable to deal effectively with gang violence and domestic violence.

    The decision I refer to as an illustration of the tension between the rigid definition of PSG which the BIA has consistently held to in principle and the more flexible way that this term is now coming to be used in practice by immigration judges and, in some instances, the BIA itself, is Matter of A-R-C-G-, 26 I&N Dec. 388, mentioned briefly in my comment in the September 26 Immigration Daily, and also in a footnote to an article by Muzaffar Chisti and Faye Hipsman appearing in the same issue.

    To give a brief summary of the above decision, it involved an application for asylum and withholding of removal by a woman from Guatemala whose testimony, which had been found to be credible by the Immigration Judge, showed that she was in a clearly abusive marital relationship, including regular beatings, damage to her nose and breast, rape and threats to kill her. However, the IJ had denied both of her applications on the grounds that she had failed to show that "married women in Guatemala who are unable to leave their relationship" qualified as a PSG, and she was ordered removed.

    On appeal to the BIA, however, the DHS changed its position and agreed that the above definition of PSG was acceptable for asylum or withholding of deportation purposes. The DHS requested remand to the IJ for further fact-finding on other issues.

    Nevertheless, even though there was no longer any dispute before it as to the definition of PSG, the BIA waded into this question in its decision anyway with a detailed analysis of this term.

    The BIA began by pointing out that in an earlier decision, Matter of R-A-, 22 I&N Dec. at 907, it had reversed an Immigration Judge's finding that membership in a social group consisting of "Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination" qualified a woman for asylum. In that decision, the BIA had reasoned that the social group in question was defined mainly for the purposes of the asylum case, and that it was "unclear which anyone in Guatemala perceives this group the exist in any form whatever". The BIA had also reasoned that "even if the proffered social group was cognizable, the respondent had not established that her husband had harmed her on account if her membership in the group".

    According to the A-R-C-G- decision, no fewer than three different Attorney Generals, (one Democrat and two Republicans: (Janet Reno, John Ashcroft and Michael Mukasey) directed the BIA to reconsider its decision concerning a social group in the R- A- case, and ultimately asylum was granted on remand to the IJ after both the Guatemalan respondent and the DHS stipulated that she was eligible for asylum.

    The above history, as given by the BIA, does not include any discussion of exactly what was erroneous about its refusal to accept the above definition of a social group in the R-A- case.

    However, three questions about its reasoning could legitimately be asked: First, what is wrong with defining a social group especially for the purposes of an asylum case, if the group does in fact exist?

    Second, why should it make any difference whether society as a whole in the country in question "perceives" the alleged social group as existing if it be shown to exist by other evidence? (This question goes to the heart of the 1985 Matter of Acosta case, which is still held to be the foundation of all legal wisdom in defining a PSG for asylum purposes, and two other recent (2014) BIA decisions which purport to be be based on Acosta, discussed below.

    Third, how is a women involved in an abusive relationship expected to prove that she was abused "on account of" the fact that she was in an abusive relationship, rather than simply because she was a woman?

    How many abusive men in any country are likely to take the time and make the effort to explain to their wives or girl friends that the man is beating, otherwise injuring, raping or threatening to kill the woman "on account" of her membership in a PSG for asylum purposes?

    (In such an instance, the term "on account of" has an elusive quality involving circular reasoning. It lacks the clarity of direct cause and effect found in other contexts, such as in the famous line from Leonard Bernstein's West Side Story: "I'm depraved on account of I'm deprived.")

    The BIA then turned to the three basic requirements for qualifying as a PSG, as defined in Acosta and two 2014 BIA decisions, Matter of M-E-V-G-, 26 I&N Dec. 227, and Matter of W-G-R-, 26 I&N Dec. 208, which purport to be following Acosta, with "clarifications".

    The BIA (in the decision under discussion, A-R-C-G-) stated the three requirements for a PSG, according to the three prior decisions mentioned above, as follows:

    (1) The group must be composed of members who share a "common immutable characteristic".

    (2) The group must be "defined with particularity", and

    (3) The group must be "socially distinct" within the society in question.

    The BIA went on to explain these requirements as follows:

    "The 'common immutable characteristic' requirement incorporates the standard set forth in Matter of Acosta (citation ommitted). The particularity requirement addresses 'the question of delineation' . Matter of W-R-G- (citation omitted). That is, it clarifies the point that 'not every "immutable characteristic" is sufficiently precise to define a particular social group.' Matter of M-E-V-G- (citation omitted). The 'social distinction' concept renames the former concept of 'social visibility' and clarifies 'the importance of "perception" or "recognition" to the concept of the particular social group. Matter of W-G-R- (citation omitted)."

    Clear enough. Got it? No doubt the above explanation will help immensely in making it possible for Central American women who are being beaten, raped, tortured and threatened with being killed by their husbands or boy friends to understand exactly what their rights might be for asylum in the US if they are lucky enough to escape from their abusive male partners.

    In my next post, I will describe how the BIA tried (with less than total success as a matter of reason and logic) to make some sense of the above quoted barely coherent, marginally comprehensible, jargon in order to reach the right result, namely refusing to let convoluted legal sophistry over the definition of a PSG stand in the way of granting asylum or withholding of deportation to the applicant in the A-R-C-G- case (provided that she is determined to have met other requirements for this relief on remand to the Immigration Judge).
    Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping business, employment and family based applicants from many parts of the world deal with the complexities and overcome the obstacles of our convoluted immigration system in order to achieve their goals of living and working in America.

    Roger's practice is focused on H-1B and O-1 work visas, and green cards through labor certification (PERM), extraordinary ability (EB-1) and opposite or same sex marriage, among other immigration and citizenship cases. His email address is algaselex@gmail.com

    Updated 09-30-2014 at 08:25 AM by ImmigrationLawBlogs

  3. Honduran Woman Fleeing Domestic Violence is Granted Asylum. By Roger Algase

    The following comment has been updated in order to include a reference to a recent BIA decision which significantly weakens, if not actually overruling, 30 years of restrictive BIA rulings on the question of what constitutes a "particular social group" for asylum purposes. This important decision, Matter of A-R-C-G- 26 I&N Dec. 388 (2014) which may have wide-reaching ramifications in asylum law, is cited in a footnote to the September 26 Immigration Daily article by Muzaffar Chisti and Faye Hipsman entitled: Unaccompanied Minors Crisis Has Receded From Headlines But Major Issues Remain.

    My revised comment appears below:

    The Huffington Post reports on September 25 that a Honduran woman and her two children who had been apprehended at the Mexican border and locked up in the notorious Artesia, New Mexico family detention center have been granted asylum by an immigration judge based on domestic violence by her husband. See: Honduran Woman Fleeing "Horrific Acts of Violence" Wins U.S. Asylum Together With Daughters.

    According to the report, the woman, identified by her initials, D.M.L. had been repeatedly beaten and forced to have sex with her husband at gunpoint. Her husband had also threatened to kill her. The Huffpost writes:

    "Although D.M.L. tried to leave once, her husband found her and their children. She decided that to get away from him, she would have to leave the country. She said she heard from family members that he is still looking for her.

    D.M.L. said she never went to the police because she thought they wouldn't help and she was unaware of other resources. Whether she had access to aid from the government was important to her bid for asylum. The attorney needed to prove that D.M.L. was part of a particular social group facing persecution - in this case, married women unable to leave their husbands - and that the government was either unable or unwilling to help her."

    The asylum grant was made possible by the efforts of lawyers from AILA's pro bono project, as well as by the help of a Honduran lawyer, Claudia Herrmannsdorfer, who spoke by phone from that country as an expert witness about the dangers of domestic violence faced by women in that country.

    The DHS has 30 days to appeal the decision (to a BIA which, over the past 30 years, has taken a highly restrictive view of what constitutes a particular social group for asylum purposes, sometimes employing arguments which have been so twisted that they would have arguably made the ancient Greek sophists embarrassed to use them).

    One can only hope that the Obama administration will do the right thing and decide not to appeal the case, which might result in giving D.M.L.'s husband more chances to rape or kill her.

    Moreover, in the light of the recent (August 26, 2014) decision of the BIA in Matter of A-R-C-G - (26 I&N Dec. 388), which held that Guatemalan married women who are unable to leave the relationship constitute a particular social group for asylum purposes, there would not appear to be any valid reason for the DHS to appeal the IJ's ruling in the instant case, involving a Honduran woman who suffered almost identical abuse to that of the Guatemalan woman.

    Huffpost's story concludes:

    "In the courtroom in Arlington [Va.], [Laurel] Weinberg and [Karen] Bobadilla [D.M.L.'s lawyers] wiped away their tears after the decision, then quickly set about their first post-hearing task: Checking plans to get D.M.L. and her daughters out of the Artesia facility. Family detention is expanding rapidly, and immigration advocates are extremely concerned. They say women and children in asylum proceedings should be released if they aren't determined a flight risk, rather than locked up where they're denied free movement and have difficulty accessing legal counsel.

    'We're proving one by one that these women don't belong in detention', Weinberg said."
    Roger Algase is a New York Lawyer and graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping employment and family based immigrants from many parts of the world overcome the obstacles of our convoluted immigration system and achieve their dream of living and working in America.

    Roger's practice focuses on H-1B and O-1 work visas, and greens cards through labor certification (PERM), extraordinary ability (EB-1) and opposite or same sex marriage, as well as other immigration and citizenship cases. His email address is algaselex@gmail.com

    Updated 09-27-2014 at 02:06 AM by ImmigrationLawBlogs

  4. BALCA Upholds Denials Where Employers Failed to List Their Names on Notice of Filing

    The Board of Alien Labor Certification Appeals (“BALCA”) recently issued an en banc decision that discussed whether an employer must include its name on the notice of filing. In Matter of Tera Technologies, Inc. and Matter of USA Wool, Inc., BALCA considered two cases where employers failed to include their corporate names. Both cases were denied by the Certifying Officer. In response to the denial, one employer argued that the omission of its name was harmless because the notice of filing stated “our company,” and any “interested persons would have been aware that ‘our company’ referred to [the employer] because the notice of filing was posted on the company’s premises.” The en banc panel reviewed prior case law and determined that the “vast majority of BALCA panel decisions have affirmed the denial of certification if the petitioning employer’s notice of filing did not include the name of the employer.” This panel stated that the PERM regulations require strict adherence to the regulatory provisions. Consequently, BALCA found that the “clarity of [the requirement of including the employer’s name on the notice of filing] and the ease with which an employer should be able to comply with this requirement belie any suggestion that strict enforcement of this requirement offends fundamental fairness or procedural due process.” As stated in prior blog posts, the PERM process is exacting and BALCA is very unforgiving of errors. The Hammond Law Group is always happy to assist employers with ensuring that all requirements set out in the PERM regulations are met. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/.

  5. Anti-immigrant Protest Cancelled By Alleged Drug Cartel Threats. By Roger Algase

    The Guardian reports that organizers of an anti-immigrant protest intended to shut down 17 border crossing points in four states have cancelled their "event" because of alleged death threats from Mexican drug cartels. See Immigration protest cancelled over 'death threats from Mexican cartels' , September 20.

    The Guardian reports that conservative activists had planned to protest against illegal immigration and against President Obama's immigration policies by using vehicles as barricades to shut down the border crossings.

    A similar protest was cancelled in August, allegedly for the same reason according The Guardian.

    Of course, no drug cartel should ever have the power to stop Americans from exercising their rights to free speech and to peaceful expression of their opinions, even those consisting of anti-immigrant prejudice.

    But anti-immigrant activists might do well to remember that it is exactly this same tolerance for differing opinions, ethnicities, cultures and religions that is built into the foundations of our laws and our Constitution which makes America such a magnet for people from all over the world. Without this acceptance of diversity, which is just as fundamental as the right to free speech, America would not be America.

    From The Guardian's report, it is also by no means clear that the proposed demonstrations would have been legal in any event, as they would have apparently prevented federal immigration inspection officers from carrying out their duties, including admitting US citizens and other people who may have had the legal right to cross the border into the US.

    Updated 09-21-2014 at 01:34 PM by ImmigrationLawBlogs

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