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

Rating: 4 votes, 5.00 average.

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

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

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  1. Someone12's Avatar will be only a matter of moments before we start seeing a new wave of Hispanic wives, arriving at our doorstep, with their sniveling brats in tow, claiming their husbands have been beating them...all without proof of course....just hear-say phony stories....that's all this country needs are more uneducated liars overwhelming our social structure and filling up our schools with their equally uneducated kids....of course, immigration attorneys are really only interested in the billable hours that will be coming their way....we must stop selling out the American way of life to anyone with a's ludicrous and dangerous....already, schools across the US are filled to the brim with illegal brats - now even more will start flooding them, most needing English language training, while the US taxpayers foot the bill....tell AILA to start thinking about being patriotic instead of greedy (good luck with that)....nowadays, any old pretext is supposedly grounds for granting asylum....what this really means is granting welfare....think about that when your kids start complaining about over crowded classrooms, or bring home diseases.....yea, great job Rog and others of his ilk....keep selling out America for $400 an hour....
    Updated 09-27-2014 at 10:06 PM by Someone12 (misc)
  2. ImmigrationLawBlogs's Avatar
    Any discussion of immigration which leaves out the hate factor has to be incomplete, as Someone12's rant reminds us.

    Roger Algase
    Attorney at Law
  3. Someone12's Avatar
    Hey forgot the GREED know, the one that it is behind all the phony rhetoric spewed forth by immigration attorneys....your view, as well as those of your misguided brethren is "'let everyone into the US, as long as they have to stop by my office so I can charge them thousands of dollars to fill out some color-in-the dot forms" guys do some great work...selling out America to anyone with a few dollars in their pockets....
  4. ImmigrationLawBlogs's Avatar
    Someone12 seems to be unaware that many, of not most, of the lawyers who are currently representing detained Central American border children in their asylum cases are doing it pro bono.

    Even people who have no problem about substituting hate in place of truth would have to agree that not many of the Border Children or their families are in a position to pay "$400 per hour" in legal fees.

    Roger Algase
  5. Someone12's Avatar
    Oh, I am fully aware that maybe 1% of these cases are done pro bono....mostly for window dressing, and with the aim of getting even more 'clients' through the doors (and sadly, across our borders) who will be billed at obscene rates....keep up the charade, one believes that immigration attorneys are looking for ways to work for free....remind us all many of those unwashed brats have YOU taken into YOUR home to be taken care of by YOU instead of MY tax dollars? I'll go out on a limb and
    Asylum is a thinly disguised term for 'the best liar gets a green card'....and of course, those lies are often courtesy guessed it....immigration attorneys, whose abilities to draft fairy tales are the envy of the Brothers Grimm and Hans Christian Anderson...
    The next wave of alleged abused Hispanic wives will arrive right after they stop in that special storefront, funded no doubt by immigration attorneys....what happens inside? the alleged Hispanic spouse is directed to stand in front of an object that looks like the bottom of a frying pan...she is instructed to push the red button, and then the spring activated pan smacks her in the face, leaving bruises and a broken nose....her picture is quickly taken before any healing begins, then the 'pro bonehead' attorney steps into action, writing up a completely false account of how this woman's husband has been beating her, so she should get asylum....her next stop in this process is the cash register, where she shells out a few meager pesos, but then signs a promissory note that results in 30% of her future pay 'earned' in the US going to.....yep...that same immigration attorney...what a scam...say, my fellow this what you want? Our country infiltrated by choreographed scammers from south of the border? Best to write your congressman/representative and put an end to this nonsense before your town fills up with these folks...and be sure to send a thank-you card to ole Rog and his cohorts, for their efforts....
  6. ImmigrationLawBlogs's Avatar
    Someone12 obviously has a great gift for writing fantasy, almost rivaling that of the authors he (or she) mentions.

    I look forward to seeing other examples Someone12's output in the fiction section of my local bookstore one of these days.

    Roger Algase
  7. Someone12's Avatar
    Mine's free, whereas the blather you write is costly...for those stupid enough to buy it....but then people send money to TV evangelists as well...both of these 'professions' - immigration attorneys and TV evangelists, promise what they cannot deliver - i.e., visas (attorneys are not empowered to issue these, thank whatever deity is listening), or front row seats in heaven...all the while fleecing (or billing) the flock (clients)....what a great scam....but just a reminder to our listening audience...immigration attorneys do NOT help American citizens....instead, these paragons of virtue try to find loopholes or a sympathetic adjudicator to help visa cheats, border jumpers and fraudsters gain admission to the United of America...many immigration attorneys help displace American citizens in the workplace, often by dummying up resumes for foreigners who cannot tie their own shoes, then drafting up phony job titles so as to create the illusion that the job in question is a 'specialty occupation' (for the H1B, for example)'s amazing to what low depths these 'practitioners' will sink in order to sell out American jobs....just so the attorney can collect $3000-4000 for doing little more than filling in the dots on forms a precocious 12 year old could complete...while spouting their rhetoric about our 'broken immigration system' and 'complex laws'....what a load....
    So America, when your job is sold off to the cheapest bidder, you can thank Ole Rog and his band of Merrymen at AILA, where greed and avarice are the norm....and ethics.....well....I doubt anyone in that organization could even define the word.
  8. ImmigrationLawBlogs's Avatar
    Someone12 says that immigration attorneys do not help American citizens. Of all the misstatements in his (or her) various rants in response to my post, this is one of the worst.

    Immigrants are at least as responsible as US citizens for creating jobs and innovations which benefit our economy and provide employment to Americans. Immigrants are also major consumers (and I am not talking about legal services) of all kinds of products and services as well as providing tax revenue and social security contributions, to name only a few of the benefits that all Americans receive from them.

    If Someone12 and his ilk had their way, America would have zero immigration and our economy (and society) would collapse. If that is being an American "patriot" it is the kind of patriotism our country doesn't need, any more than it needs the hatred of ethnic and racial minorities which runs through almost every sentence that Someone12 writes.

    Roger Algase
  9. Someone12's Avatar
    The classic refrain from ethically challenged immigration attorneys (are there any other kind??)..."immigration creates jobs for Americans..."...what horse many IT folks watched their jobs being handed over to dotheads with some flimsy degree from Mumbai University (for $99.95) who were willing to work for 35% of the Americans? helped out by...????....yep...ole Rog and his ready-to-sell-out Americans brethren....
    We keep hearing this tiresome refrain, yet no one can point to REAL facts....they just toss out numbers without any actual foundation....suppose to make all those out-of-work Americans feel better about being unemployed....
    The real reason behind these charlatans' blather is they want to mask what is actually happening...that AILA is willing to sell out American jobs to anyone with a pulse, to try and obtain asylum for anyone with a story, to try and obtain a waiver for any dirtbag....AILA has no limits to the audacious manner they will do business....but virtually none of it is for free...they all want billable the car load....
    I heard something once from a friend who is a retired consular officer (the ultimate enemy of immigration attorneys).. that in order to become an immigration attorney, one must have either (a) taken and failed the ethics course or (b) never attended such a course? Such "strict" requirements........about on par with the requirements to become a TV evangelist....
    At the end of the day, with immigration attorneys, it's all about one and only one thing: the money....everything else is just fluff.
    Yea Rog, sleep must lead a lonely life, surrounded by a few others of your ilk....because no one else with any common sense would wish to share the same air, lest the gene pool get compromised....
  10. Someone12's Avatar
    while Rog continues to find new ways to sell out American citizens....BTW Rog, illegal immigrants siphon off benefits that dwarf whatever sales taxes these scumbags might accidentally pay while buying tortillas.....a fact that Rog and AILA seems to forget....just look at California, a state being run into the dirt thanks to the incredible sums of money being spent on illegal immigrants (through benefits obtained fraudulently), through the loss of wages (thanks to these same lowlifes working for pennies on the dollar) and other sums of US taxpayer's contributions to these irresponsible cheats..... meanwhile, Rog and Associates wants even more ways to bring 'em and keep 'em in America, just as long as Rog and Co get to have them drop by their offices to leave a bundle of ill gotten gains do you sleep at night?
  11. hiddenNY's Avatar
    If this guy knows anyone who actually gets 400/hr for an asylum case, please let me know. Though he does make a valid point, being the nuttiness - individuals who actually want to be in the US without breaking the law do have few options, and you should give it to - immigrants contribute greatly, but I would conflate immigrants with the undocumented.
  12. Intecon's Avatar
    I really just want to know who is funding this campaign of children coming from out southern border. I have been practicing law too long to believe all this is being done free, for altruistic motives. It just doesn't make sense.

    We have laws in this country, just as do the countries to our south. We must respect their laws and they must respect ours.

    This is all just a regrettable political football that in my personal opinion will cause irreparable harm to the USA. But what do I know? . . . . I just fell off the turnip truck (about 71 years ago). Viva Zapata! Viva Mexico! Visa working in the USA to send money "home" . . . legal or illegal.
  13. Nolan Rappaport's Avatar
    I share Roger's concern about the difficulty of showing that the alleged persecution was on account of membership in a particular social group. The refugee definition?s proviso that the persecution be ?on account of? a protected ground has been construed to require that there be a ?nexus? between the harm that the alien has incurred or fears and the alien?s race, religion, nationality, political opinion, or membership in a particular social group. To establish the requisite nexus, the alien must provide some evidence (direct or circumstantial) that the persecutor is motivated to persecute the victim because the victim possesses?or is believed to possess?the protected characteristic. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). I'm not sure that can be shown for this particular social group.

    If the lady's husband is abusing her because she is in the particular social group involved in this case, we should be able to expect him to treat other members of that group the same way. Maybe he would beat and rape a housewife down the block and a few who live downtown where he works. But does that make sense? I don't think so. He isn't abusing this woman because she is a member of a particular social group. He is abusing her because she is his wife, he is a sadistic *******, and he can get away with it. Compare that to the situation in which someone persecutes gay men. The person who persecutes gay men will be inclined to go after any gay man he happens across at a time and in a place where he can get away with it. It doesn't have to be a particular gay man. He hates all gay men. I don't think we can infer from the fact that this lady's husband abuses her that he hates all housewives who are members of the particular social group we are discussing. Can we?

    I think this is an example of bad facts making bad law. The judge and the Board are straining to find some way to help women who are fleeing spousal abuse. Asylum isn't the right way to do it. The Violence Against Women Act would be a better vehicle for helping them. I don't know if it has a provision that would apply to this situation, but it certainly could be amended to provide one. A copy of that Act is available at,
  14. Someone12's Avatar
    the average asylum case costs about $20,000! How does the would-be asylee pay for this? By signing his or her life away to some immigration attorney, paid for from future earnings....
    As to the bad law, Nolan is right...why should the US be the recipient of every foreign spouse who has been smacked by her husband? this is a grounds for granting asylum? from whom? lowlifes? gimme a break...but ole Rog and others of AILA don't give a hoot about reality...all that matters to these 'noble practitioners' is billable hours....the more aliens who are allowed to come to the US and stay, under any pretext, is good enough for ole Rog and Associates....they are selling out our culture as fast as they can, with total disregard for the future of this country....sorry, but if your husband is an A-hole, divorce him or leave him...but don't expect the US taxpayers to pay for your new life in this country....what a load a horse manure....the US of A does NOT owe a particular standard of living to anyone and everyone on the planet...of course, Rog and AILA members would long as those 'anyones' have to stop by their office and shell out obscene sums of money for said attorney to take a few (very few) minutes to fill out forms a near moron could complete....yea....thanks Rog...thanks AILA...great work....selling out your fellow Americans for mere money...
  15. ImmigrationLawBlogs's Avatar
    The Violence Against Women Act is not a solution to the problem of women trying escape domestic violence in other countries where the government is unwilling or unable to protect them. VAWA only applies to people who are victims of domestic violence at the hands of a USC or LPR spouse. That is not going to help very many domestic violence victims outside of the US.

    Having said that, it is also true that if every case of discrimination or oppression directed against women anywhere in the world were to give rise to a valid asylum claim in the US, then half the world's population would have the right to live in America for that reason alone.

    I am in favor of liberal immigration policies, but there is unfortunately not enough room in America for everyone. However, while we of course need to have certain restrictions and controls over immigration, they should be based on reason and compassion, not prejudice and hate, such as typifies Somenone12's comments and those of his ilk.

    Roger Algase
    Attorney at Law
    Updated 10-26-2014 at 06:11 PM by ImmigrationLawBlogs
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