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Redefining "Social Group" to Uphold Border Children's Asylum Rights. By Roger Algase

Rating: 8 votes, 5.00 average.

Almost on a daily basis, new reports are coming out emphasizing the gravity of the humanitarian crisis caused in large part by uncontrolled gang violence in Central America's "Northern Triangle" (Guatemala, Honduras and El Salvador) which is causing thousands of unaccompanied children, many under the age of 12, to flee their homes and seek asylum, not only in the US, but in other Central and Latin American countries as well. My colleague Nolan Rappaport, who is an expert in asylum and refugee law and worked for the Board of Immigration Appeals for many years, has forwarded a report to me from the Center for American Progress dated July 24, 2014 discussing the root causes of the humanitarian crisis at the US border involving these children. See The Surge of Unaccompanied Children from Central America: Root Causes and Policy Solutions

(As a disclaimer on Nolan's behalf, I wish to make clear that his forwarding articles on this or any other subject does not necessarily imply that he endorses or agrees with their content.)

The above report states that because of high rates of homicide and violence in the above countries and lack of economic opportunity the number of children expected to reach the US/Mexican border by the end of the current fiscal year in September, 2014, is as high as 90,000. The report is valuable for its detailed analysis of the reasons for the mass exodus of children from these countries, especially gang violence and the activities of drug cartels. It also makes many recommendations for action by the US and other counties on the international scale to deal with this problem. However, the report also states:

"This brief, however, does not delve into the needed policy changes in the areas of immigration and refugee law."

Nolan is pessimistic about the possibilities for change in internal US policies, especially relating to asylum law, because of political factors. He therefore recommends changing current law in order to deny entry to all children at the Southern border seeking asylum in the US (not only those from Mexico), and to process them through the UN for refugee status outside the US. In his view, at least some of the children would eventually qualify for admission to the US as refugees. is not a political discussion site, but is devoted to immigration law only, so I will not discuss the political factors. I will only discuss one of the most important legal issues which Nolan correctly identifies as a major barrier to asylum claims in the US, including claims based on fear of gang violence. This obstacle to asylum is the definition of a "particular social group" ("PSG").

The definition of a PSG by the Board of Immigration Appeals and the federal courts has a history going back three decades, beginning with the decision in Matter of Acosta, 19 I&N Dec., 211 (BIA, 1985). From the time of that decision up to now, the BIA has (more or less) stuck to a narrow definition of this term which, if applied consistently across the board, could make asylum impossible for almost anyone to obtain.

However, the BIA has been far from consistent in applying its definition and has often contradicted itself, used circular reasoning, and been forced to change its rationales for upholding to its narrow definition of the sbove term. It has also run into some harsh criticism from the federal courts.

In a recent 7th Circuit Court of Appeals decision
, Gatimi v Holder, 578 F. 3rd 611, 616 (2009), Judge Richard Posner, one of the most highly respected judges in America, wrote:

"The only way, in the Board's view, that the Mungiki [a violent Kenyan organization] defectors can qualify as members to a particular social group is by pinning a target to their backs with the legend 'I am a Mungiki defector'".
(Emphasis added.)

A detailed analysis, including withering criticism of the BIA's lack of internal logic or consistency in its application of the PSG standard is contained in the Chicago-based National Immigrant Justice Center's February 2014 study, Particular Social Group Practice Advisory: "Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R-"

In my opinion, no one who has not read and absorbed this study thoroughly can claim to be truly knowledgeable about the current state of asylum law.

However, even Judge Posner, in his above decision stated: "We have no quarrel" with a 9th Circuit case in which young Honduran men who resisted being recruited into into gangs were denied asylum for failing to qualify as member of a PSG. See Ramos-Lopez v Holder, 563 F. 3rd, 855, 869-861 (2009).

Therefore, a more careful look at the above two cases, as well as other related decisions, is in order.

To be continued.

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Updated 07-29-2014 at 09:59 AM by ImmigrationLawBlogs

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  1. MKolken's Avatar
    There is a clear path to victory for most of these children. The problem is the Obama administration is aggressively pursuing their expeditious deportation. Humane deportations and all.
  2. Nolan Rappaport's Avatar
    I just want to clarify my position on a few points.

    First, I would expect a large percentage of the unaccompanied alien children to be given refugee status by UNHCR, not just a few.

    Second, asylum eligibility is based on the alien applicant being able to establish that he meets the "international" definition of a "refugee," but the interpretation of that international definition varies from country to country. UNHCR is not bound by the US interpretation. This is a good thing. The US interpretation makes it difficult for immigration judges to grant asylum on the basis of a gang-violence-based persecution claim. Please read Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). ** This is why asylum is so rarely given in US removal proceedings. According to a recent TRAC report on the outcome of 100,000 cases in which unaccompanied alien children have had removal hearings before an immigration judge through June 30, 2014, relief was granted by the judge in only 1% of the cases in which the child appeared without an attorney. *The percentage was 9% for kids who did have an attorney. *See Table 5. Specific Outcomes for Juvenile Cases in the Immigration Courts. * *

    Third, if the UNHCR classifies unaccompanied alien children as refugees, it can make arrangements to place them in a safe location anywhere in the world. Some could be placed in the US, some in Canada, others in Europe, and so on. In contrast, if they apply for asylum in a removal hearing before an immigration judge, they either win and stay here or they lose and are returned to the violence in their home countries. If the last 100,000 cases are an indication of what to expect now, applying for asylum in removal proceedings will result, 99% of the kids who appear without an attorney will be deported and 91% of the ones who do have an attorney will be deported.
  3. ImmigrationLawBlogs's Avatar
    Most likely, the Obama administration is so anxious to send the children back without a hearing precisely because they are afraid that Matt may be right and that the children will win if they are afforded their legal right to a hearing in immigration court.

    Roger Algase
    Attorney at Law
  4. ImmigrationLawBlogs's Avatar
    With regard to Nolan's comment, my above post is attempting to suggest that the BIA decision that Nolan mentions, along with many other similar ones, should not be taken as the last word on the border children's asylum rights. If one looks at these decisions carefully, as the National Immigrant Justice Center has done, and as Judge Richard Posner of the 7th Circuit Court of Appeals, along with other majority opinion judges in the 7th and 3rd Circuits have done, the reasoning of the BIA decisions starts to fall apart like a house of cards. It also becomes more evident that the BIA decisions are motivated more by a political desire to keep down the number of refugees or asylees than by a desire to follow accepted standards of legal reasoning and analysis.

    My subsequent posts will show that most of the BIA decisions dealing with the "Particular Social Group Requirement" are not well thought out and some of them are simply absurd, as Judge Posner pointed out in the extract from one of his decisions which I have quoted above. These flawed decisions may be the law now. If so, they should not continue to be the law for much longer. I have enough faith in the American justice system to believe that they will not be the law for much longer.

    Roger Algase
    Attorney at Law
    Updated 07-29-2014 at 04:09 PM by ImmigrationLawBlogs
  5. Nolan rappaport's Avatar
    Let's assume that roger is right and that the federal courts will change asylum law. How long will it take, and how many children will be deported back to the violence in Central America in the meantime?
  6. ImmigrationLawBlogs's Avatar
    Nolan advocates going along with flawed BIA asylum law decisions. I support fighting against them until they are overturned.

    Nolan has also pointed out that BIA decisions could be overturned by the Attorney General by a stroke of the pen. (Well, maybe a few strokes - the AG would have to write a formal decision.)

    Eric Holder, where is your pen?

    Roger Algase
    Attorney at Law
  7. Nolan Rappaport's Avatar
    It's fine to fight the boards asylum precedents. My point is that most of the children who have a removal hearing to apply for asylum are going to be deported. If we let UNHCR screen them for refugee status they have a much better chance of avoiding a return to the violence in Central America. The change Roger talks about could take years and it may never happen.
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