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

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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.




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

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