FAIR Amicus Brief 11-2012-OCR PDF

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

BOARD OF IMMIGRA TION APPEALS
In the Matter of: A. R. C-G et al.
Respondent File No. A [Redacted]
In Removal Proceedings
BRIEF OF AMICUS CURIAE
FEDERATION FOR AMERICAN IMMIGRATION REFORM
November 13, 2012
1
Immigration Reform Law Institute
Michael M. Hethmon, Esq.
25 Massachusetts Ave. NW
Suite 335
Washington, D.C. 20001
(202) 232-5590
litigation@irli.org
Attorney for Amicus Curiae FAIR
BOARD OF IMMIGRATION APPEALS
In the Matter of: R. D. C. P-G et al.
November 13, 2012
1
Suite 335
(202) 232-5590
litigation@irli.org
BOARD OF IMMIGRATION APPEALS
In the Matter of: M. J. V .. et al.
November 13, 2012
1
Suite 335
(202) 232-5590
litigation@irli.org
On behalf of the Federation for American Immigration Reform (FAIR), the
Immigration Reform Law Institute (IRLI) respectfully responds to the request of the
Board of Immigration Appeals, dated July 19, 2012 and extended by letter dated
September 11, 2012, for amicus briefing in Matter of M.J. v., Matter of A.R. C-G, and
Matter of R.D. C. P-G.! IRLI is the public interest law affiliate of FAIR. The BIA has
requested that all supplemental briefs address identical questions of law. Amicus FAIR
has thus prepared a consolidated amicus curiae brief, with the intent that the analysis may
assist in informing the Board's deliberations whether the cases are reviewed jointly or
separately.
TABLE OF CONTENTS
I. Table of Authorities ............................................................................................ .iv
II. Issue Addressed .................................................................................................... 1
A. Question presented .................................................................................... 1
B. Evidentiary Standards and Burdens .......................................................... 1
C. Introduction ............................................................................................... 3
III. Procedural Summary ............................................................................................. 6
A. Matter ofM.J.V ........................................................................................ 6
B. Matter of A.R. C-G et al .......................................................................... 8
C. Matter ofR.D.C. P-G .............................................................................. 1 0
I The BIA also requested briefing in two additional cases, Matter of E.M. C. and Matter of
L. G. p-c (file # redacted in both cases). After inquiry to the Office of the Clerk in
October 2012 IRLI learned that decisions had already been issued in September 2012.
The BIA explained it did not notify FAIR because it is a third party.
IV. Analysis and Argument. ...................................................................................... 13
A. Definition of Membership in a Particular Social Group ......................... 13
1. An applicant for asylum must apply the BIA's interpretation of the
phrase ...... "membership in a particular social group" in Matter of
Acosta .......................................................................................... 13
2. A social group formulation cannot be based on a shared experience
of past gender-related persecution .............................................. 15
3. An intimate domestic relationship is not an immutable
characteristic for asylum Purposes .............................................. 16
4. Victims of domestic violence can rarely establish that the
society in which the violence occurred considers persons in
intimate domestic relationships as members of a particular
social group ................................................................................. 21
5. The proposed status ofa victim of domestic violence is too
amorphous to define the discrete class of persons required to form
a particular social group .............................................................. 24
B. Acts of Domestic Violence can Rarely Amount to Persecution ............. 26
I. The BIA has failed to provide a gender-neutral legal definition of
domestic violence that can consistently distinguish criminal and
sexual assaults from cognizable acts of persecution ................... 26
2. Most acts of domestic violence reported by asylum applicants lack
the severity of harm required for a finding of persecution ........ .30
3. The suffering of a victim of domestic violence rarely rises to the
level of atrocity required for a grant of humanitarian asylum based
on past persecution alone ............................................................ 37
C. The Nexus Requirement for Cognizable Harm ...................................... 38
11
I. Victims of domestic violence by a private actor can rarely show
that violence by an intimate partner was committed with the
imprimatur of a govermnent entity ............................................. 38
2. Victims of domestic violence can rarely show that their domestic
partner's acts were motivated by a statutory characteristic
possessed by the victim ............................................................... 44
3. Criminal sexual violence rarely has the requisite nexus with a
statutory ground for asylum ........................................................ 46
D. A Wen-founded Fear of Future Persecution .......................................... .49
I. Victims of domestic violence can rarely show a wen-founded
future fear of an being singled out for persecution or a risk of a
systematic or organized effort to kill, imprison, or severely injure
them ............................................................................................ .49
2. The presumption that safe relocation would not be reasonable
conflicts with controlling law when applied to domestic violence
applicants .................................................................................... 52
VI. Conclusion .......................................................................................................... 56
iii
I. TABLE OF AUTHORITIES
U.S. Supreme Court Cases
INSv. Aguirre-Aguirre, 526 U.S. 415 (1999) ................................................................... 3
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ........................................................ 3,4,49
INSv. Elias-Zacarias, 502 U.s. 478 (1992) .............................................................. 39,44
Negusie v. Holder, 555 U.S. (2009) .................................................................................. 3
Eighth Circuit Cases
Al Khouri v. Ashcroft, 362 F.3d 461 (8th Cir. 2004) ........................................................ 2
Cigaran v. INS, 159 F.3d 355 (8th Cir. 1998) ................................................................ 37
Gaitan v. Holder, 671 F.3d 678 (8th Cir. 2012) .............................................. 13,21,22,24
Gomez v. Gonzalez, 425 F.3d 543 (8th Cir. 2005) .......................................................... 38
Hasalla v. Ashcroft, 367 F.3d 799 (8th Cir. 2004) ........................................................ .40
Ixtlilca-Morales v. Keisler, 507 F.3d 651 (8
th
Cir. 2007) ............................................... 38
Khrystotodorov v. Mukasey, 551 F.3d 775 (8
th
Cir. 2008) ........................................... XX
Kondakova v. Ashcroft, 383 F.3d 792 (8th Cir. 2004) ................................................... .31
Krasnopivtsev v. Ashcroft, 382 F.3d 832 (8th Cir. 2004) ............................................... 38
Mambwe v. Holder, 572 F.3d 540 (8th Cir. 2009) .......................................................... 37
Mouawad v. Gonzales, 479 F.3d 589 (8th Cir. 2007) ..................................................... 30
Ngengwe v. Mukasey, 543 F.3d 1029 (8
th
Cir. 2008) ................................................. 17,36
Ramirez v. Gonzales, 166 Fed. Appx. 261 (8th Cir. 2004) ............................................. 31
Regalado-Garcia v. INS, 305 F.3d 784 (8th Cir. 2004) .................................................. 31
Salman v. Holder, 687 F.3d 591 (8th Cir. 2012) ............................................................ 27
iv
Setiati v. Gonzales, 439 F.3d 710 (8
th
Cir. 2006) ............................................................ 31
Shoaira v. Ashcroft, 377 F.3d 837 (8th Cir. 2004) ......................................................... 31
Valioukevitch v. INS, 251 F.3d 747 (8th Cir. 2004) ...................................................... ..40
Zakirov v. Ashcroft, 384 F.3d 541 (8
th
Cir. 2004) ........................................................... 38
Fifth Circuit Cases
Abdel-Masieh v. INS, 73 F.3d 579 (5th Cir. 1996) ......................................................... 32
Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) ..................................................... 32,38
Garcia-Garcia v. Mukasey, 294 Fed. Appx. 827 (5th Cir. 2008) ................................. ..41
Hallman v. INS, 879 F.2d 1244 (5th Cir. 1989) .............................................................. 24
Majd v. Gonzales, 446 F.3d 590 (5th Cir. 2006) ............................................................ 32
Mohammad v. Ashcroft, 90 Fed. Appx. 746 (5th Cir. 2004) ........................................ ..41
Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) ............................................ 22
Sanchez v. Holder, 332 Fed. Appx. 199 (5th Cir. 2009) ............................................... ..45
Shaikh v. Holder, 588 F.3d 861 (5th Cir. 2009) ............................................................. 44
Shufang Li v. Holder, 2012 U.s. App. LEXIS 1026 (5th Cir. 2012) .............................. 32
Tamara-Gomez v. Gonzales, 447 F.3d 343 (5
th
Cir. 2006) ............................................. 38
Tesfamichael v. Gonzales, 469 F.3d 109 (5th Cir. 2006) ............................................... 32
BIA Decisions
In re Rodi Alvarado Pena, A[redactedJ (BIA Feb. 19,2004) ...................................... 5,47
In re J-B-N-, 24 1. & N. Dec. 208 (BIA 2007) ............................................................... .44
In re L-R, A[redactedJ(SF Imm.Ct. Aug. 10,2010) ..................................... 16, 25, 47, 48
In re McMullen, 17 1. & N. Dec. 542 (BIA 1980) .......................................................... 39
v
In Re 0-2, 221. & N. Dec. 23 (BIA 1998) .............................................................. 35,36
In Re S-P, 21 I &N Dec. 486 (BIA 1996) ....................................................................... 39
Matter of A-M-E & J-G-U, 24 I.&N. Dec. 69 (BIA 2007) ............................................. 21
Matter of A-T, 25 1. & N. Dec. 4 (BIA 2009) ................................................................. 13
Matter of Acosta, 19 I & N Dec. 211 (B IA 1985) ................... ................................ passim
Matter ofC-A, 23 I & N Dec. 951 (BIA 2006) ................................................... 14,21,22
Matter of Fuentes, 19 I & N Dec. 658 (B.I.A. 1988) ...................................................... 53
Matter of J-Y-C, 24 I & N Dec. 260 (BIA 2007) .............................................................. 1
Matter ofKasinga, 21 I&N Dec. 357 (BIA 1996) .......................................................... 54
Matter of Mogharrabi, 19 I & N Dec. 439 (BIA 1987) ................................................... .4
Matter ofN-M-, 251. &N. Dec. 526 (BIA 2011) ........................................................... .44
Matter ofR-A-, 221. & N. Dec. 906 (BIA 1999) ................................................. .4, 34, 45
Matter ofR-A-, 241. & N. Dec. 629 (AG 1999) ............................................................... 3
Matter ofS-E-G, 24 1. & N. Dec. 579 (BIA 2008) ................................................... 13, 24
MatterofS-M-J, 211. & N. Dec. 722 (BIA 1997) ................................................. 1, 2, 23
Matter ofT--, 20 1. & N. Dec. 571 (BIA 1992) ............................................................. .44
Matter of Velasquez, 2010 BIA LEXIS 21 (BIA 2010) .................................................. 28
Other Cases
Abdulrahman v. Ashcroft, 330 FJd 587 (3d Cir. 2003) ................................................ .49
Ahmed v. Ashcroft, 341 FJd 214 (3d Cir. 2003) ............................................................ 32
Blazina v. Bouchard, 286 F.2d 507 (3d Cir. 1961) ......................................................... 33
Castro-Martinez v. Holder, 641 F.3d 1103 (9th Cir. 2011) ........................................... .41
Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir. 2005) ............................................... 2
VI
Chavarria v. Gonzalez, 446 F.3d 508 (3d Cir. 2006) ..................................................... 33
Dia v. Ashcroft, 353 F.3d 228 (3td Cir. 2003) ................................................................... 5
Escobar v. Gonzales, 417 F.3d 363 (3td Cir. 2005) ........................................................ 39
Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) .......................................................... 32,38,50
Galina v. INS, 213 F.3d 955 (7th Cir. 2000) .................................................................. .41
Gomez v. INS, 947 F.2d 660 (2d Cir. 1994) .................................................................... 16
Hussain v. Holder, 576 F.32d 54 (l st Cir. 2009) ............................................................. 34
Islam (A.P.) v. Secretary of State for the Home Department, Regina v. Immigration
Appeal Tribunal & Another Ex Parte Shah (A.P.) (Conjoined Appeals),
2 All ER 545 (1999) ............................................................................................ 18
Jian Hui Shao v. BIA, 465 F.3d 497 (2d Cir. 2006) ........................................................ 50
Kaur v. Ashcroft, 388 F.3d 734 (9th Cir. 2004) ................................................................ 2
Kante v. Holder, 634 F.3d 321 (6th Cir. 2011) ............................................................... 15
Khozhaynova v. Holder, 641 F.3d 187 (6th Cir. 2011) .................................................. .46
Klawitter v. INS, 970 F.2d 149 (6th Cir. 1992) .............................................................. .46
Krastev v. INS, 292 F.3d 1268 (loth Cir. 2002) .............................................................. 38
Li v. Atty Gen'l of the U.S., 400 F.3d 157 (3d Cir. 2005) ............................................... 33
Li Hua Yuan v. AG of the U.S., 642 F.3d 420 (3d Cir. 2011) ......................................... 23
Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005) ................................. : ................................ 50
Lopez-Perez v. AG of the U.S., 2011 U.S. App. LEXIS 19309 (3d Cir. 2011) ............. .47
Lukwago v. Ashcroft, 329 F.3d 157 (3td Cir. 2003) ....................................................... 15
Mazariegos v. Office of the United States AG, 241 F.3d 1320 (11th Cir. 2001) ........... .45
Mendez-Garcia v. Holder, 2011 U.S. App. LEXIS 17896 (7th Cir. 2011) .......... 39,41,46
Mitreva v. Gonzales, 417 F.3d 761 (7th Cir. 2005) ................................................... 37,51
vii
Morehodov v. United States AG, 270 Fed. Appx. 775 (lIth Cir. 2008) ........................ .41
Ortiz-Araniba v. Keisler, 505 F.3d 39 (1st Cir. 2007) ..................................................... .4
Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010) .......................................................... 13
Perez v. AG o/the U.s., 422 Fed. Appx. 158 (3d Cir. 2011) .......................................... 37
Pheng v. Holder, 640 F.3d 43 (lst Cir. 2011) ................................................................ .46
Rivera-Barrientos v. Holder, 2011 U.S. App. LEXIS 18567 (lOth Cir. 2011) ........ 14,22
Roman v. INS, 233 F.3d 1027 (7th Cir. 2000) .............................................................. ..41
Sarkisian v. AG o/the U.S.,322 Fed. Appx. 136 (3d Cir. 2009) ..................................... 38
Soha Farouk Fahmy Abdelhalim v. Holder,
417 Fed. Appx. 536 (6th Cir. 2011) ................................................................... 50
Stanojkova v. Holder, 645 F.3d 943 (7th Cir. 2011 ) ....................................................... 31
Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) ......................................... 3, 13,22
Urquia-Rodriguez v. AG o/the U.S., 372 Fed. Appx. 256 (3d Cir. 2010) ..................... .41
Valle-Montes v. AG o/the U.S., 342 Fed. Appx. 854 (3d Cir. 2009) ........................ 15,40
Ward v. Attorney Gen. o/Canada, 103 D.L.R. (4th) 1; 2 S.C.R. 689 (1993) ................. 14
Yang v. McElvoy, 277 F.3d 158 (2d Cir. 2002) ................................................................ 2
Federal Statutes
8 U.S.C. 1101(a)(42) ............................................................................................... .42,49
8 U.S.C. 1158 (b)(l) ..................................................................................... 1,2,13,38,44
8 U.S.C. 1227(a) .......................................................................................................... 28
8 U.S.c. 1229a(b) .......................................................................................................... 2
8 U.S.C. 1254a .............................................................................................................. 39
viii
Federal Regulations
8 C.F.R. 208.13(b)(1(iii) ......................................................................................... 37,52
8 C.F.R. 1003.1 .............................................................................................................. 6
8 C.F.R. 1208.13 ........................................................................................ 1,49,50,53,54
Proposed Rule, Asylum and Withholding Definitions,
65 Fed. Reg. 76588 (Dec. 7,2000) .................................................................... .40
Other Legal Materials
Bayes-Wiener, 1., NOTE: "FAMILY BROILS" AND PRN ATE TERROR: A GENDER-
NEUTRAL, PSYCHOLOGICALLy-BASED ApPROACH To DOMESTIC VIOLENCE
AND ASYLUM LAW, 79 UMKC 1. Rev. 1047 (2011) .................................... 26,27
Hathaway, James c., A RECONSIDERATION OF THE UNDERLYING PREMISE OF
REFUGEE LAW, 31 Harv. Int'l 1.1. 129 (1990) .................................................... 18
Hethmon, M., TSUNAMI WATCH ON THE COAST OF BOHEMIA: THE BIA
STREAMLINING REFORMS AND JUDICIAL REVIEW OF EXPULSION ORDERS,
55 Catholic U. L.R. 999 (2006) .......................................................................... 55
Kelly, J & Johnson, M., DOMESTIC VIOLENCE: DIFFERENTIATION AMONG TYPES OF
INTIMATE PARTNER VIOLENCE: RESEARCH UPDATE AND IMPLICATIONS FOR
INTERVENTIONS, 46 Fam. Ct. Rev. 476 (2008) ................................................... 26
Kelley, Linda, DISABUSING THE DEFINITION OF DOMESTIC VIOLENCE,
30 Fla. st. U.L. Rev. 791 (2003) ......................................................................... 26
Langlois, J., PERSECUTION OF F AMIL Y MEMBERS, Memorandum to INS Asylum
Division, AILA Doc. No. 97063090 (June 30, 1997) ........................................ .48
UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES,
19U.S.T. 6259,6261, 189U.N.T.S.150(Jan. 31, 1967) ................................... 17
Ver Steegh, N. , DIFFERENTIATING TYPES OF DOMESTIC VIOLENCE:
IMPLICATIONS FOR CHILD CUSTODY, 65 La. 1. Rev. 1379 (2005) ...................... 27
ix
II. ISSUE ADDRESSED:
A. Question Presented
Can domestic violence, in some circumstances, form the basis of an asylum claim
under section 208 of the Immigration and Nationality Act, in light of Matter of R-A, 22
I&N Dec. 906 (BIA 1999), vacated 22 I&N Dec. 906 (AG 2001), remanded 23 I&N Dec.
694 (AG 2005), remanded and stay lifted 24 I&N Dec. 629 (AG 2008)? Also, has the
respondent met her burden of proof for asylum and withholding of removal?2
B. Evidentiary Standards and Burdens
The applicant for a grant of asylum bears the burden of proof to establish that
he or she is a refugee within the meaning of INA 101(a)(42)(A). 8 C.F.R. 1208.13(a)
(1996). In defensive asylum proceedings such as these, ordinarily the respondent is
solely responsible for formulating and establishing the statutory elements of his or her
application. Matter of J-Y-C, 24 I&N Dec. 260, 261 nl (2007). Specifically, each
Applicant-Respondent in the cases under review were required to "establish that ...
membership in a particular social group ... was or will be at least one central reason for
persecuting the applicant." INA 208(b)(I)(B)(i), 8 U.S.C. 1158 (b)(I)(B)(i)(as
amended by REAL ID ActP.L. 109-13, 103(a)(3), 119 Stat. 231 (2005)).
Unlike Article III judges, an immigration judge ("IJ") plays a proactive role in
developing the record in defensive asylum proceedings. In particular, the presentation of
evidence is a proper function of an immigration judge. Matter of S-M-J, 21 I. & N. Dec.
2 In this brief, FAIR only addresses respondent's eligibility for asylum. Because FAIR
concludes that in each of the three cases presented for supplemental briefing, the
reasoning of the IJ in support of his decision to deny asylum was correct, amicus does not
believe any Respondent can meet the more rigorous standard for a grant of withholding
of removal. Khrystotodorov v. Mukasey, 551 F.3d 775, 784 (8
th
Cir. 2008)( cited in Matter
of A.R.C-G, at 7).
1
722,727 (BIA 1997). The Immigration and Nationality Act ("INA") directs that an
immigration judge shall "receive evidence, and interrogate, examine, and cross-examine
the alien and any witnesses," 8 U.S.C. 1229a(b)(1), and affords applicants a "reasonable
opportunity" to present evidence, 8 U.S.C. 1229a(b)(4)(B). See Yang v. McElvoy, 277
F.3d 158, 162 (2d Cir. 2002) (an IJ "is not merely a fact finder and adjudicator, but also
has an obligation to establish and develop the record"); Kaur v. Ashcroft, 388 F.3d 734,
737 (9th Cir. 2004) (obligation of the IJ to fully develop the record); Al Khouri v.
Ashcroft, 362 F.3d 461, 464-65 (8th Cir. 2004)(duty to fully develop record in pro se
context).
Background evidence is particularly important to an immigration judge's
credibility determination. Matter ofS-M-J, 21 1. & N. Dec., at 728. As the "trier offact",
the IJ has a duty to determine whether the applicant should provide evidence which
corroborates credible testimony. INA 208(b)(1)(B)(ii), 8 U.S.C. 1158 (b)(1)(B)(ii)(as
amended by REAL ID Act P.L. 109-13, 103(a)(3. The agency responsible for
initiating removal proceedings, the U.S. Department of Homeland Security, also has a
general duty to assist the IJ by introducing into evidence the most current country reports,
advisory opinions, or other information readily available from federal agency sources.
Matter ofS-M-J, 21 1. & N. Dec. at 727.
If the IJ does rely on background information about country conditions when
adjUdicating the alien's application, the source of the IJ's knowledge of the particular
country must be made part of the record. Matter of S-M-J, 21 1. & N. Dec., at 727. Both
the IJ and the BIA may take judicial notice of foreign law providing protections against
or sanctioning domestic violence. Castro-Perez v. Gonzales, 409 F.3d 1069, 1071 (9th
2
Cir. 2005). However, intemational refugee law and conventions are not background
information, and are not binding on the Attorney General, the BIA, or federal courts. INS
v. Aguirre-Aguirre, 526 U.S. 415, 427-428 (1999).3
The BIA is entitled to Chevron deference in interpreting ambiguous provisions of
the INA. Negusie v. Holder, 555 U.S. 511, 516 (2009) (finding INA 208 ambiguous);
INS v. Cardoza-Fonseca, 480 U.S. 421, 445-50 (1987); Aguirre-Aguirre, 526 U.S. at
424-425. Neither a finding by an individual immigration judge that persecution occurred
or that an applicant was a member of a particular social group, nor summary affirmation
of such a finding by a BIA Board Member, is sufficient to constitute the agency's
interpretation. Ucelo-Gomez v. Gonzales, 464 FJd 163, 169 (2d Cir. 2006).
C. Introduction
The background of this request for supplemental briefing are past attempts by the
BIA and the federal courts to apply the basic statutory elements of refugee law to asylum
claims based on gender-related domestic violence. See e.g. In Re R-A-, 24 I&N Dec. 629
(BIA 2008)(cited procedural cited showing that AG lifted stay previously imposed on the
BIA and remanded the case for reconsideration of issues presented with respect to asylum
claims based on domestic violence.) Those attempts, spanning more than two decades,
have not produced an authoritative regulatory definition.
The limited function of asylum in domestic and international law is to protect
refugees in the United States from persecution that may occur subsequent to their
removal from the United States to their country of origin. The legal function of asylum is
3 "Indeed, the [U.N.] Handbook itself disclaims such force, explaining that 'the
determination of refugee status under the 1951 Convention and the 1967 Protocol ... is
incumbent upon the Contracting State in whose territory the refugee finds himself.'"
Cardoza-Fonseca, 480 U.S. at 439, n.22 (quoting U. N. Handbook, at I, P(ii)).
3
not to provide a remedy for past persecution, or an entitlement or immigration benefit
earned through suffering. Cardoza-Fonseca, 480 U.S. at 429, 438; Matter of
Mogharrrabi, 19 I &N Dec. 439 (BIA 1987). As the Board stated in its original 1999
decision in Matter of R-A-,
The questions before us, however, are not whether some equitable or
prosecutorial authority ought to be invoked to prevent the respondent's
deportation to Guatemala ... Rather, the questions before us concern the
respondent's eligibility for relief under our refugee and asylum laws.
221. & N. Dec. 906, 914 (BIA 1999).4
In that regard, amicus FAIR endorses the adjudicative approach identified by the
Eleventh Circuit for identifying a particular social group:
To strike an acceptable balance between (1) rendering "particular social group" a
catch-all for all groups who might claim persecution, rendering the other four
categories meaningless, and (2) rendering ''particular social group" a nUllity, by
making its requirements too stringent or too specific."
Castillo-Arias v. U.S. Att'y Gen 'Z, 446 F.3d 1190, 1997 (11 th Cir. 2006).
FAIR does not believe that the BIA can both strike that balance and meet the
statutory eligibility requirements for asylum under the Immigration and Nationality Act,
its related regulations, and binding court decisions for any of the proposed formulations
of a particular social group it has reviewed that are based on gender-related domestic
violence, except possibly in rare and extreme circumstances.
4 In the course of preparing this brief, FAIR has noticed hundreds of often complex
appellate opinions and scholarly legal essays criticizing the BlA's interpretation of one or
more of the elements of an asylum claim, in particular in the relevant areas of gender,
sexual identity, intimacy, the status and function of the household, and how persecution
might occur wi thin these contexts. While a review of this body of critical writing is far
beyond the scope of this brief, FAIR notes a pervasive intent of these writers to
reinterpret American asylum and refugee law which supports their views on asylum law
but which is incompatible with existing immigration statutes. Any amendment of these
immigration laws must be done by the Congress.
4
The most difficult of the problems that a BIA precedential decision must address
is the fonnulation of a working definition of the meaning of persecution in cases
involving domestic abuse. In particular, such decision must establish rules construing (I)
the requisite severity of the claimed harm or punishment, (2) the application of the "on
account of' nexus requirement, and (3) the definition of the claimed social group itsel
See In Re Rodi Alvarado Pena, DHS Position on Respondents Eligibility for Relief, 6-7
(BIA Feb. 19, 2004) ("Whitley Brief'). FAIR would add that a viable definition of
domestic violence itself and better criteria to detennine the availability of state protection
against private actors are also needed.
It is FAIR's conclusion that the Board's established analytical approach to the
statutory requirements of INA 208 adopted by the agency, centered on Matter of Acosta
and its progeny, remain the best standard to consistently accommodate the many complex
adjudicatory criteria imposed by U. S. immigration law.
Finally, it is important to consider that asylum is a system of adjudication that is
especially "vulnerable to manipulation." Dia v. Ashcroft, 353 FJd 228, 262 (3d Cir.
2003)(Alito, J. dissenting). In the past, when applicants attempted to circumvent the
statutory parameters of INA Section 208 and relief is granted for motives that are clearly
not cognizable as a basis for discretion by the Attorney General, the Congress responded
by making the requirements for protection more stringent, as was the case most recently
with the 2005 evidentiary refonns enacted under the REAL lD Act. P.L. 109-13, 119
Stat. 231 (2005). While the Secretary of Homeland Security has the discretionary
authority in certain limited circumstances to defer action after inadmissible alien victims
of overseas acts of domestic violence with whom the Secretary may sympathize have
5
been issued final orders of removal, the BIA does not have this authority. 8 C.F.R.
1003.1
III. PROCEDURAL SUMMARY.
In preparing this brief, Amicus FAIR only had access to redacted copies of federal
immigration judge decisions. In each decision, portions of the record unavailable to
amicus FAIR were referenced and none of the documentary records cited as
determinative by the immigration judges were made available. Based on the limited
record available, FAIR attempts to answer the second question posed by the BIA,
whether "the respondent has met her burden of proof .... " The available record shows
that the immigration judge considered the following relevant facts:
A. Matter ofM.J.V.
Respondent MJ.v. is a female citizen of Guatemala who has been legally
separated and possibly divorced from her husband since 2001, although the immigration
judge was unable to determine the finality of the divorce. Respondent's nationality was
redacted from the immigration judge's oral decision provided to FAIR, but the repeated
page citations to the 2008 Department of State Human Rights Report for Guatemala,
Decision, 6-7, makes it evident that the country in question is Guatemala.
Respondent female entered the United States without inspection on [date
redacted], around 2007. Sometime later, Respondent filed an asylum application Form 1-
586 with USCIS on [date redacted]. The application was denied as untimely because
Respondent was unable to prove her date of entry. Decision, 2. Respondent was served
with an NT A. Respondent appeared for her removal hearing in Immigration Court in
6
[Omaha] Nebraska, in the 8
th
Circuit and renewed her claim for asylum. Respondent
admitted allegations in the NT A and conceded removability. Decision, 2.
Respondent claims she suffered persecution on account of her claimed
membership in a particular social group, composed of "married women in Guatemala
who are unable to leave the relationship." Decision,3. Respondent was the sole witness
at the removal hearing. The IJ found Respondent to be a credible witness, and the parties
stipulated to the facts in the Respondent's affidavit. Decision, 4. The IJ found that the
asylum officer had incorrectly found the asylum application to be untimely, and the DHS
conceded that the application was timely filed. Decision, 9.
Respondent testified that, after six years of marriage in which no abuse was
reported, in 2000 her [husband, identity redacted] hit their four year old daughter and
"broke her arm." [Husband] also beat and raped Respondent's 16 year old sister during
this same incident. Respondent returned home from work and discovered the incidents,
and [husband] "beat her and threatened to kill her." Decision, 4.
In 2001, Respondent separated from [husband] and obtained legal custody of her
young daughter. She did not finalize a divorce because [husband] "refused to sign the
divorce papers." For six years thereafter, through 2007, Respondent resided and was
employed in various locales in Guatemala, but [husband] continued to find her, contact
her, and threaten her. [Husband] was "aware of his legal separation from the respondent"
but continued "to contact her for six or seven times between 200 I and 2007 and made
threats in an attempt to convince her to return to him." Respondent testified that she
changed jobs and moved to a different area within Guatemala to avoid [husband], but he
"located her each time and made threats to her each of these times." Decision, 4.
7
"[Husband] often threatened to kill Respondent if she did not return to him and if she did
not do what he wanted her to do." In one incident, [husband] cut Respondent with a
knife. Decision, 4.
Respondent only reported one incident to the police, in February 2007. The
police "were not effective in stopping [husband] from contacting the Respondent and
threatening and intimidating her." Decision,S.
Respondent's daughter sti1l resides in Guatemala with Respondent's sister.
Respondent reported no contacts by [husband] with her family members since
Respondent left Guatemala and she has received no threats from him since 2007.
Respondent does not know where [husband] lives, or if he sti1l resides in the locality
where they were domiciled during their marriage. Decision,S.
At the conclusion of the proceedings, the applications for asylum and WOR were
denied, but the Respondent's request for voluntary departure was granted. Decision, 18.
Respondent MJ.V.'s application was adjudicated by a Nebraska Immigration Court, and
is thus subject to Eighth Circuit precedent.
B. Matter of A.R. C-G et al.
From the redacted decision provided by the BIA to amici it can be surmised that:
Lead respondent is a legally separated female citizen of [redacted, hereafter
"Country X"] accompanied by three children, who are derivative applicants for asylum
and WOR. Decision, 1. Respondent and her children entered without inspection on
[redacted date] and were personally served NTAs. ld. 1-2. Respondent timely filed
Form 1-589 for asylum and WOR but did not apply for CAT relief or request voluntary
departure. Decision, 2. Respondent asserted a well-founded fear of persecution on
8
account of membership in a particular social group defined as "married women in
[Country X] who are unable to leave their relationship." Decision, 2. Respondent
appeared for removal proceedings in Immigration Court in [Kansas City], Missouri, in
the 8
th
Circuit. Respondent conceded removability which is established on the basis of
her pleadings. ld. 2. The IJ found Respondent to be a credible witness in the
proceedings. Decision, 4.
Respondent testified that she attended school for two years and married her
husband when she was 17 years old. Decision, 2. [Husband] began beating respondent
after she had given birth to three children. [Husband would "hit her with his face on her
head face, and body ... when ever he would come home in the evenings [sic]." One time
[husband] broke her nose. Another time he threw paint thinner on her. The IJ found that
Respondent had "described [husband's] continuous campaign of abuse which was
directed at her." ld. 2.
Respondent told her father about the abuse. Father called [husband] and "told
him not to beat his daughter." Once, Respondent left and "stayed with her father for
about three days." After she returned, "[husband] continued to hit her." Respondent
moved in with her father "on several other occasions" but [husband] would come to her
father's house and threaten to kill Respondent if she did not return to him. Decision, 2-3.
Once, Respondent went to stay in [redacted other locality] with a friend "for about
three months." [Husband] came to [redacted locality] and told her to return home and
that if she would return "he would no longer abuse her." But "upon returning to the
village, [husband] continued to abuse the Respondent." Decision, 3.
9
After Respondent left [Country X] in [date redacted], "[husband] has contacted
her in the United States and asked if she knew that he "could make her return to [redacted
locality or Country X?]. Decision, 3. Respondent believes that if she returns to [locality],
"[husband] would find and beat her." ld. 3. At the conclusion of the proceedings, the
applications for asylum and WOR were denied and the Respondent and her four children
were ordered removed.
Respondent A.R. C-G's application was adjudicated by a Missouri Immigration
Court, and is thus subject to Eighth Circuit precedent.
C. Matter of R.D.C. P-G
Respondent R.D.C.P-G was a female citizen of [redacted Country X] of
[redacted] age. IJ Oral Decision ("Decision"), 1-2. Respondent is a registered nurse
holding various professional work certifications. ld. 3.
Respondent appeared with counsel for a removal hearing before the Immigration
Court in Houston, Texas, in the Fifth Circuit. Respondent admitted removability under
INA 212(a)(7)(A)(i)(I) (entry without a valid entry document), pursuant to an entry
without inspection at [locality redacted] Texas. Decision, 1-2. The Respondent was
served with an NT A within two months, but later filed an application for asylum. The
application for asylum was denied, based apparently on the credible testimony of the
Respondent, as no documentary evidence in the record was mentioned by the IJ.
Respondent "entered into a personal relationship" in [Country X] with a person
"who turned out to be a gang member." Decision, 2. The "relationship" was of short
duration-about nine months, including a "six month hiatus" when the abusive partner
was incarcerated and thus physically isolated from Respondent. Decision, 8. Respondent
10
"began living with this partner at his mother's home on April 1,2008." Shortly afterward
"he began to abuse her." Respondent's domestic partner was a user of illegal narcotics.
Id.3. Some of the times he allegedly abused the Respondent he was under the influence
of drugs. Id. 3. During the two and a half months between April 9, 2008 and December
28, 2008 when he was not incarcerated, Respondent's domestic partner physically abused
her approximately three times a week. On "at least one occasion," specifically April 9,
2008, "he threatened the respondent by putting a gun against her head." Id. 2, 8. During
the remaining six-month period of the relationship the partner "was incarcerated." Id.3.
5
It would be unusual for abuse amounting to persecution to occur which the persecutor
was incarcerated, and the IJ Decision fails to identify testimony to the contrary.
"On one occasion" Respondent called the police, who declined to get involved in
"a personal relationship." Decision, 4. On December 28, 2003, Respondent "attempted
to leave her partner by going to her mother's home. However, [the partner] followed her
to the house and abused her again and threatened to kill both the respondent and her
mother." Id. 4. The decision is silent as to whether Respondent returned to the partner's
domicile after December 28, 2008, and does not find that abuse or threats occurred
thereafter.
5 The IJ decision is internally contradictory on this chronology. The IJ identifies the
cohabitation as beginning on April I, 2008. Decision, 3. Later, the IJ states that at some
period between April 9 and December 28, 2008 there was a "six month hiatus" from
[violent episodes] "when her partner was incarcerated." Decision, 8. The IJ found that on
September 15, 2008 the partner punched Respondent so hard so as to cause a miscarriage.
Decision, 8. Presumably, because the IJ found that there was a "six month hiatus" from
the beatings during incarceration, the September 15 punch that caused the miscarriage
must have occurred while the partner was not incarcerated. The only other threat
identified by the IJ was April 9, when the partner threatened Respondent with a gun.
Therefore, the only possible dates of incarceration would be April 10 through September
14, which is approximately five months, not six months.
11
The IJ found that "Respondent's partner threatened her and abused her because he
wanted to control her and confine her to his mother's home and to prevent her from
working." Decision, 3. Respondent "did not suffer any permanent injuries or any broken
bones or intemal injuries during this episode or any of the other episodes." Id. 3.
The IJ held that "even if any of these incidents considered separately does not
amount to persecution, the accumulative effect of these abuses over the period of time
discussed above [i.e. the approximately ten weeks between mid-April and the end of
December 2008 when the partner was not incarcerated] in this decision is sufficient to
classify the abuses the respondent described as persecution." Decision, 8. However, the
IJ then concluded that "the motive of the alleged persecutor ... was based on a number of
motives perhaps even psychological defects." Id. 8-9. The IJ held that "this type of
motive which falls into a personal type of category does not support an asylum claim"
because "an alien's fearing retribution over purely personal matters cannot establish
persecution." Id. 10. The IJ held that Respondent failed to establish past persecution, a
well-founded fear of future persecution, or that membership in a particular social group
was at least on central reason for persecuting her. Id. 10-11.
Respondent's applications for asylum, WOR, and voluntary departure were
denied and Respondent was ordered removed to [Country X]. Respondent R.D.C. P-G's
application was adjudicated by a Texas hmnigration Court, and is thus subject to Fifth
Circuit precedent.
12
IV. ANALYSIS AND ARGUMENT
A. Defmition of Membership in a Particular Social Group
1. An applicant or asylum must apply the BIA's interpretation of the phrase
"membership in a particular social group" in Matter of Acosta.
To be eligible for a grant of asylum at the discretion of the Attorney General, "the
applicant must establish that ... membership in a particular social group ... was or will be
at least one central reason for persecuting the applicant." INA 208(b )(1 )(B)(i), 8 U.S.C.
1158 (b)(I)(B)(i)(as amended by the REAL ID Act P.L. 109-13, 103(a)(3), III Stat.
231 (2005). The particular social group ground is utilized in applications inVOlving
persecution by private parties because gender itself is not a recognized statutory ground
under which applicants may receive protection. Perdomo v. Holder, 611 F.3d 662, 666
(9th Cir. 2010). The applicant has the burden to delineate a cognizable particular social
group in which membership is claimed. Matter of A-T, 25 L & N. Dec. 4, 15 (2009)
(citing Matter of A-T-, 24 L & N. Dec. at 623, fns.6,7.)
The BIA first published its official agency interpretation of the phrase "particular
social group" in Matter of Acosta, 19 L & N. Dec. 211, 233 (BIA 1985); see Fatin v. INS,
12 F.3d 1233, 1239-1240 (3rd. Cir 1993) .. Characteristics associated with a "particular
social group" must be (1) common, (2) immutable, (3) innate, and (4) unchangeable.
Vcelo-Gomez v. Gonzales, 448 F.3d 180, 188 (2d Cir. 2006) (citing Matter of Acosta, 19
I. & N. Dec. at 233)). The Acosta formulation has been repeatedly reaffirmed by the
Circuit courts. The Eight Circuit has explicitly affirmed the Acosta definition of
particular social group, as articulated in Matter of S-E-G, 24 I&N Dec. 579 (BIA 2008)
Gaitan v. Holder, 671 F.3d 678, 681 (8th Cir. 2012). The First, Third, Sixth, Seventh,
13
and Tenth Circuits have also adopted the BIA's particular social group fonnulation.
Matter ofC-A-, 23 I. & N. Dec. 951, 955 (BIA 2006); Rivera-Barrientos v. Holder, 2011
U.S. App. LEXIS 18567 (lOth Cir. 2011).6
In Matter of M.J. v., the IJ found that Respondent had sought protection as a
member of a particular social group, which the Respondent defined as composed of three
elements: (1) married women, (2) of Guatemalan nationality, who (3) are unable to leave
the relationship. Decision, 9-10. In A.R. C-G, The IJ found that Respondent had sought
protection as a member of a particular social group, which the Respondent defined as
composed ofthree elements: (l) married women, (2) of Country X, who (3) are unable
to leave the relationship. Decision, 5. Amicus FAIR contends that these fonnulations
fail to meet any of the four current tests recognized by the BIA for identifying a
cognizable social group.
In Matter of R.D.C.P-G, the 1J did not identify any particular social group
fonnulation presented by the Respondent. The IJ simply repeated his conclusion that the
Respondent failed to meet her burden as to the nexus element. See Part IV. C., infra.
This omission was by itselffatal to Respondent's claims for relieC
6 The Supreme Court of Canada has also endorsed the Acosta approach. Ward v. Attorney
Gen. of Canada, 103 D.L.R. (4th) 1; 2 S.C.R. 689 (1993). While the BIA has noted the
existence of alternative hybrid standards in the Second and Ninth Circuits incorporating
various options based on "voluntary associational relationships," the BIA continues "to
adhere to the Acosta fonnulation. Under Acosta, we do not require a 'voluntary
associational relationship' among group members." Matter ofC-A-, 23 I. & N. Dec. 951,
957 (BIA 2006). But no voluntary associational relationship has been alleged in this
case.
7 Amicus FAIR points to this omission to emphasize that a precedential decision must
include specific direction as to the elements that must be addressed in an IJ decision
deciding a particular social group asylum application based on claims of gender-related
persecution by a private actor. See e.g. Ucelo-Gomez v. Gonzales, 448 F.3d, at 188
(complaining that "application of the Acosta principles by the agency has been sporadic,
14
These defects in the proposed social group formulation are also instructive as to
why "domestic violence" is such a problematic basis for granting protection in general.
2. A particular social group formulation cannot be based on a shared
experience of past gender-related persecution.
group:
The common experience of past persecution cannot define a particular social
Although the shared experience of enduring past persecution may, under some
circumstances, support defining a "particular social group" for purposes of fear of
foture persecution, it does not support defining a "particular social group" for past
persecution because the persecution must have been "on account of' a protected
ground. INA 101 (a)( 42)(A).
Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003). The Third Circuit characterized
this as a matter of logic: "[T]he social group must exist prior to the persecution" if
membership in the group is to motivate the persecution. Id. at 172.
This limitation has been correctly applied to gender-related social group
formulations. See Valle-Montes v. AG of the U.S., 342 Fed. Appx. 854, 856-857 (3d Cir.
2009)("Victims of rape" were not a cognizable particular social group, because the
"group" does not exist independently ofthe persecution.); Kante v. Holder, 634 F.3d 321,
324 (6th Cir. 2011)(Guinean women subjected to rape as a form of political control was
not a particular social group because their claimed shared characteristic was the violence
that they suffered). In Matter of R-A-, the BIA originally denied recognition to a
particular social group defined as "Guatemalan women who have been involved
intimately with Guatemalan male companions, who believe that women are to live under
male domination," because the proposed definition relied on impermissible circular
non-specific, and unhelpful.")
15
reasoning-the group is defined by the harm that the applicant fears. See e.g. Gomez v.
INS, 947 F.2d 660, 661 (2d Cir. 1994). No reported federal opinion has recognized
harm inflicted on "married women ... unable to leave the relationship" as a ground for
asylum.
In Matter of L-R, the original proposed fonnulation by the applicant's counsel
was "Mexican women in an abusive domestic relationship who are unable to leave."
Matter of L-R-, A-[ redacted], Order and Stipulation (San Francisco Immigration Court
August 4, 2010); see BIA Supplemental Briefing Notice, Matter of L-R-, (BIA December
23, 2008); analysis by counsel for Respondent Center for Refugee and Gender Studies,
http://cgrs.uchastings.edu/campaigns/Matter%20of''1020LR.php (visited November 10,
2012) .. This rejected fonnulation was much narrower, but still similar in its circularity,
to the fonnulation proposed here by Respondent A.R. C-G. In Matter of L-R, the DHS
again explained why this group and others similar to it were not valid particular social
groups: "To allow such circularity in defining a particular social group - individuals are
targeted for persecution because they belong to a group of individuals who are targeted
for persecution - would not be true to the refugee definition in U.S. law .... " Matter of L-
R, Department of Homeland Security's Supplemental Brief, 5-6 (2009)(citing UNCHR
Guidelines ~ 1(2), U.N. Doc. HCR! GIP/02/02 (2002)("Martin Brief').
3. An intimate domestic relationship is not an immutable characteristic.
To be eligible for a grant of asylum based on membership in a particular social
group, an applicant must demonstrate that he or she has an immutable characteristic
which the applicant shares with others similarly situated. Matter of Acosta, 19 I. & N.
Dec. at 219. While a past experience "is, by its very nature, immutable, as it has already
16
occurred and cannot be undone," that does not mean "that any past experience that may
be shared by others suffices to define a particular social group for asylum purposes". In
re C-A-, 23 1. & N. Dec. at 958-59
To grant asylum in cases involving gender-related domestic violence would
require a finding by the lJ that a Respondent's domestic status in Country X-whether as
a married woman or other intimate relationship---was an immutable characteristic which
,
she shares with others similarly situated. Ngengwe v. Mukasey, 543 F.3d 1029, 1034 (8th
Cir. 2008)( sex of Cameroonian widow an immutable characteristic under the Acosta
standard, but marital status could be changed). Such a finding is improper absent
country-specific testimony as to the immutability of a domestic relationship status such as
marriage, because it does not fit the requirements of an immutable characteristic as
defined by Acosta.
The BIA initially examined what constitutes membership in a particular social
group by examining the United Nations Protocol Relating to the Status of Refugees, Jan.
31,1967,19 U.S.T. 6223,(1968) ("the Protocol"). The BIA examined the United Nations
Protocol because Congress intended the 1980 Refugee Act to conform to the Protocol.
Acosta, at 220. In examining the Protocol, the BIA noted that the Protocol and the 1980
Refugee Act both listed as statutory grounds for asylum, race, religion, nationality,
political opinion, and membership in a particular social group. Id. Following the canon
of construction ejusdem generis,
8
the BIA reasoned that a ''membership in a particular
8 Ejusdem generis is a canon of construction. When a general word or phrase follows a
list of specifics, the general word or phrase will be interpreted to include only items of
the same type as those listed. For example, in the phrase horses, cattle, sheep, pigs, goats,
or any other farm animal, the general language "or any other farm animal" - despite its
seeming breadth - would probably be held to include only four-legged, hoofed mammals
17
social group" must be construed consistent with the other enumerated grounds as
possessing a common immutable characteristic. Id. at 233. The shared characteristic
might be an innate one such as sex, skin color, or kinship ties, or in some circumstances it
might be a shared past experience other than shared harm or punishment-such as former
military leadership or land ownership. Id.
In defining a particular social group, there are two limitations. First, the common
characteristic must be one that the members of the group either cannot change, or should
not be required to change, because it is fundamental to their individual identities or
consciences. Id. Second, it cannot be based on the shared experience of harm or
punishment itself. See Part IV.A.2, supra.
The legislative history of the 1951 United Nations Refugee Convention further
demonstrates the BIA's approach is correct and consistent with the framer's intent that
the grounds for asylum were to be construed strictly inclusive, as opposed to broadly
adaptive or illustrative.
9
The ejusdem generis canon was also applied to refugee and
asylum law in a landmark British domestic violence case, whose reasoning was cited as
instructive in Matter of R-A and other BIA decisions, to conclude that the 1951 Refugee
Convention "reasons" are "an inclusive list" and not, "as one finds in some human rights
typically found on farms, and thus would exclude chickens. Black's Law Dictionary, 556
(2004).
9 "The Convention Framers explicitly rejected an overarching humanitarian or human
rights approach to international refugee protection. French efforts to link refugee status to
violations of fundamental human rights and to a general human right to seek asylum
were summarily rejected as 'theoretical' and 'too far removed from reality.' In sum,
neither a holistic view of humanitarian need nor of human rights protection was seen as
the appropriate foundation for the new convention." Hathaway, James C., A
RECONSIDERATION OF THE UNDERLYING PREMISE OF REFUGEE LAW, 31 Harv. Int'l LJ.
129, 148 (1990)( discussing CONVENTION RELATING TO THE STATUS OF REFUGEES, July
28, 1951, 19 U.S.T. 6259).
18
instruments, illustrative." See Islam (A.P.) v. Secretary of State for the Home
Department, Regina v. Immigration Appeal Tribunal & Another Ex Parte Shah
(A.P.)(Conjoined Appeals), 2 All ER 545 (March 25, 1999)10(Opinion of Hope, LJ, ~ 4).
In Matter of M-J-V- the IJ did not directly address the immutability of the
Respondent's status of being a married woman in Guatemala who is unable to leave the
relationship. Respondent's argument raises multiple analytical conflicts. If the domestic
status of marriage meant being in a permanent intimate relationship, the record reveals
nothing necessarily permanent or immutable about Respondent's status. The record noted
in the IJ decision reveals that MJ.V. was not involuntarily coerced into marriage or
cohabitation, for example by sexual assault, kidnapping, or kinship group coercion, and
that she promptly responded to the original violent episode by moving out of the conjugal
dwelling and successfully obtaining a legal separation, and perhaps a divorce. Decision,
5. The IJ expressly found that the Respondent M-J-V-'s testimony was insufficient "to
show that she was unable to leave the relationship," an essential element ofthe proposed
social group. Decision, 15. The IJ had, by his own account, no basis for finding that
Respondent M-J-V- satisfied the immutability test. Acosta, 19 I. & N. Dec. at 233.
Similarly, the in Matter of A.R. C-G, the IJ did not directly address the
immutability of the Respondent A.R. C-G's status of being a married woman in Country
X. The relevant record reveals that Respondent A.R. C-G was not involuntarily coerced
into marriage or cohabitation, and she was able on multiple occasions to move out of the
conjugal dwelling and establish an alternative domicile with her father and subsequently
a friend. Decision, 1-2. The Decision is silent on whether Respondent ever sought a
10 Cited in Matter ofR-A-, 22 I&N 906, 937, 939 (2001); Perdomo v. Holder, 611 F.3d
662, 667 (9th Cir. 2010).
19
legal separation or divorce, or whether domestic law in Country X fails to afford those
legal options to married women. Moreover, the Decision never identifies any act of force
or violence by the husband to force Respondent to return to the conjugal domicile after
the various episodes of temporary separation initiated by Respondent A.R. C-G. To the
contrary, the record suggests that the husband promised that "he would no longer abuse
her" if Respondent A.R. C-G would "return to his home." Decision, 3. On these facts,
the IJ had no basis for finding that Respondent A.R. C-G satisfied the immutability test.
Acosta, 19 I. & N. Dec. at 233.
The IJ identified no record evidence that Country X family law fails to afford
married women the legal option of divorce. There are only a shrinking handful of
societies worldwide where an intimate relationship is one which an intimate partner can
never end, even in extremis, and which she or he should thus not be expected to change
as a pre-condition of classification as a refugee. The IJ failed to identify any adverse legal
or even social consequences for female-initiated separation in intimate relationships in
Country X. The status of marriage is simply not an immutable historic characteristic,
even in a society which might be culturally hostile to separation or divorce.
ll
If the
government did not treat marriage as absolutely permanent, the status upon which the
proposed social group was premised was subject to change, leaving the IJ no basis for
finding conformity with the immutability requirement. See Acosta, 19 I. & N. Dec. at
233.
II While gender may still be considered an immutable characteristic, in the sense that no
applicant for asylum should be expected to change their gender to avoid persecution, it is
by itselfnot a statutory ground for asylum Perdomo v. Holder, 611 F.3d at 666.
20
The analytical problem is even starker in Matter of R.D.C. P-G. An infonnal
relationship lasting only nine months, of which five months were in a "hiatus" due to
incarceration of the abuser on unrelated criminal charges, is arguably the opposite of an
immutable characteristic, both as to duration over time, and as a status under Guatemalan
domestic law. The Decision identifies nothing in the record other than the credibility of
Respondent's description of a limited period of several months during which she suffered
abuse at the hands of a violent criminal drug abuser.
4. Victims of domestic violence can rarely establish that the society in which the
violence occurred considers persons in intimate domestic relationships as
members of a particular social group.
If, arguendo, the Respondents in the cases under review were to share a relevant
immutable characteristic with other abused women in intimate domestic relationships,
their asylum applications would still fail, because they have not established the social
visibility of the particular social group in which they claim to be members. Subsequent
to passage of the REAL ID Act in 2005, the BIA clarified two required sub-elements of
the Acosta test. In Matter ofe-A, 23 I&N Dec. 951, 958 (2006), the BIA held that not all
groups sharing an "immutable or fundamental" characteristic are cognizable as particular
social groups. The BIA explained that its prior decisions had also considered the
"recognizability" or "social visibility" of a proposed group. Id.
The existence of social visibility must be "considered in the context of the country
of concern." Matter of A-M-E & J-G-U, 24 I&N Dec. 69, 74 (2007). The BIA does not
"require an element of cohesiveness or homogeneity among group members." Instead,
"the extent to which members of a society perceive those with the characteristic in
question as members of a social group" is to be considered as a relevant factor. Matter of
21
C-A-, 23 1. & N. Dec. at 957. Both the Eighth and Fifth Circuits have affmned the BIA's
social visibility test. Gaitan v. Holder, 671 F.3d at 681; Orellana-Monson, 685 F.3d at
521. The shared common immutable characteristic should make the social group
generally recognizable in and by the contextual community. Gaitan, 671 F.3d at 68l.
The important determination in applying the social visibility test is whether the
applicant's home country views the class as socially visible, not whether the applicant for
asylum herself is perceived to be a member of the social group that the applicant is
proffering. That inquiry is distinct, and must be made separately to comply with the
statutory showing of a nexus between the persecution and the statutory ground. In re C-
A-, 23 1. & N. Dec. at 958-59 (while a past experience "is, by its very nature, immutable,
as it has already occurred and cannot be undone," that does not mean "that any past
experience that may be shared by others suffices to define a particular social group for
asylum purposes.') In other words, before determining that an applicant is a member of
the social group, the applicant must first establish that the proffered social group
formulation was already recognizable in the relevant society at the time the alleged
persecution occurred. Amicus FAIR urges the BIA to reaffirm this important
precedential point.
Where the hann experienced by members of a group can be attributed to the
actions of ordinary criminals, "the scales are tipped away from considering those people a
particular social group within the meaning of the INA." Ucelo-Gomez v. Mukasey, 509
F.3d at 73. This skepticism has extended to sexual and spousal violence by private
actors. See e.g. Rivera-Barrientos v. Holder, 2011 U.S. App. LEXIS 18567 (lOth Cir.
Sept. 7, 2011)(denial of particular social group of "women in El Salvador between the
22
ages of 12 and 25 who resisted gang recruitment" as lacking social visibility, where
applicant was "brutally" attacked, slashed, gang-raped, and terrorized for weeks in own
home by Salvadoran MS-13 gang members); Faye v. Holder, 580 F.3d 37, 42 (lst Cir.
2009)(Senega1ese women with children out of wedlock who were abused by their
husbands did not meet socially visible and sufficiently particular tests.)
In Matter of M.J. V., the Decision provided to amicus FA1R contains no direct or
implied reference to testimony by applicant M.J. V. or background documentary evidence
about conditions in Guatemala that would establish the social visibility of the Respondent
or anyone else similarly situated. The IJ decision states that "the respondent has not
demonstrated that her particular social group is viewed or treated differently by society."
Decision, 15. Had the IJ reached a conclusion favorable to the Respondent on this point,
the IJ would have been obliged to identify the background evidence that formed the basis
of that conclusion. Matter of S-M-J, 21 1. & N. Dec. at 724 (findings of background
conditions require the IJ to identify the supporting background evidence in the record).
Similarly, the Decision in Matter of A.R. C-G, references no testimony or
background evidence on country conditions that would establish the social visibility of
the Respondent within the proffered social group. Because evidence of social visibility
of the proffered group of ''married women in Country X who are unable to leave their
relationship" is essential to the IJ's grant of asylum on a membership in a particular
social group ground, "its absence from the record was not harmless." See Li Hua Yuan v.
AG of the U.S., 642 F.3d 420, 427 (3d Cir. 2011). If arguendo the IJ had reached a
different conclusion that was favorable to the Respondent A.R.C-G on this point, the IJ
would have then been obliged to properly identify the background evidence that formed
23
the basis of that conclusion. Matter of S-M-J, 21 I. & N. Dec. at 724 (findings of
background conditions require the IJ to identify the supporting background evidence in
the record).
The social group fonnulation in these two cases is thus more analogous to the
very sympathetic proposed social group of young people in countries like Guatemala, El
Salvador, and Honduras, who have resisted recruitment by omnipresent national criminal
gangs, and even experienced violent reprisals as a result-- a fonnulation finnly rejected
by the BIA because of the lack of evidence supporting the social visibility of the
proposed group. Matter ofS-E-G, 24 1. & N. Dec. 579, 586 (BIA 2008).
In Matter of R.D. c.P-G, rather than specifying any claimed particular social
group assessing its visibility, the IJ characterized the claimed abuse as "retribution over
purely personal matters" and denied asylum by negative inference. Decision, 10.
5. The proposed status of a victim of domestic violence is too amorphous to
derme the discrete class of persons required to form a particular social
group.
The BIA has also held that a cognizable particular social group required
"particularity." Matter of S-E-G, 24 I&N Dec. 579, 584 (BIA 2008). The Eighth and
Fifth Circuits have recognized the particularity test. Gaitan, 671 F.3d at 681 ; Orellana-
Monson v. Holder, 685 F.3d, at 518 (reaffinning the particularity test); Hallman v. INS,
879 F.2d 1244, 1247 (5th Cir. 1989)(Asylum is not available to every victim of civil
strife, but is restricted to those persecuted for particular reasons).
PartiCUlarity requires that "the proposed group can be accurately described in a
manner sufficient! y distinct that the group would be recognized, in the society in
question, as a discrete class." Gaitan, 671 F.3d at 681 What matters under this
24
formulation is not the size of the group per se, but "whether the proposed description is
... too amorphous ... to create a benchmark for determining group membership." [d.
The U.S. Department of Homeland Security argued before the BIA in 2011 that the
UNHCR Guidelines on International Protection accord with the Board's view that the
particular social group category "cannot be interpreted as a catch-all that applies to all
persons fleeing persecution." Matter of L-R (Martin Brief), 7.
In Matter of M-J- V-, the IJ decision expressly held that "the respondent's
proposed social group is too amorphous to be cognizable," and that "the record, including
the Country Reports, does not support the conclusion that the stated group constitutes a
cognizable group in Guatemala." Decision, IS. Absent these findings, the record cannot
sustain on appeal a determination that Respondent met the social visibility or particularity
tests for membership in a particular social group.
In Matter of A.RC-G, the IJ decision was silent on whether Respondent's
proposed social group "would be recognized, in the society in question, as a discrete
class." The IJ appeared to hold, assuming for argument's sake that the proffered social
group did exist, that "lead respondent has not offered any evidence that would establish
that her membership in a group consisting of "married women in Country X who are
unable to leave their relationship" was "even a tangential reason ... why she was harmed."
Decision, 5-6. The record cannot sustain on appeal a determination that Respondent met
the social visibility or particularity tests for membership in a particular social group.
In Matter of R.D.C.P-G, no particular social group was identified in the IJ
decision at all. The IJ rejected the claim based primarily on the Respondent's failure to
meet the nexus test. See Part IV.C, infra.
25
B. Acts of Domestic Violence can Rarely Amount to Persecution
1. The BIA has failed to provide a gender-neutral legal defmition of domestic
violence that can consistently distinguish criminal and sexual assaults from
cognizable acts of persecution.
A major obstacle to adjudicating social group-based claims based on "domestic
violence" is that the BlA has never promulgated a regulatory definition of "domestic
violence."
The lack of a legal definition has significantly complicated the question of
whether domestic violence can ever constitute persecution. The predominant legal
presumption in both immigration and family law analysis in the United States has until
recently been that domestic violence refers to incidents of physical "battering" by a male
perpetrator upon a female victim. See e.g. Kelley, Linda, DISABUSING THE DEFINITION
OF DOMESTIC VIOLENCE, 30 Fla. St. U.L. Rev. 791 (2003)(reviewing research indicating
the unscientific basis of the acceptance in legal literature of battered woman syndrome as
the primary manifestation of domestic violence).
However, empirical social science research, especially clinical studies published
since the original 1999 decision in Matter of R-A-, has established the existence of
analytically distinct categories of violence between domestic partners. See generally,
Kelly, J & Johnson, M., DOMESTIC VIOLENCE: DIFFERENTIATION AMONG TYPES OF
INTIMATE PARTNER VIOLENCE: RESEARCH UPDATE AND IMPLICATIONS FOR
INTERVENTIONS, 46 Farn. Ct. Rev. 476 (2008). The clinical description of the type of
domestic violence where the personality profile and motivation of the parties best
coincides with the definition of persecution by non-governmental actors under current
26
U.S. refugee law is "Coercive Controlling Violence." See L. Bayes-Wiener, NOTE:
"FAMILY BROILS" AND PRIVATE TERROR: A GENDER-NEUTRAL, PSYCHOLOGICALLY-
BASED ApPROACH To DOMESTIC VIOLENCE AND ASYLUM LAW, 79 UMKC L. Rev. 1047,
1051 (2011). Coercive Controlling Violence, also labeled "intimate terrorism," is the
typology of domestic violence most frequently described in reports from battered
women's shelters, emergency rooms, and police reports in the U.S. and the British
Commonwealth. ld. It manifests the highest levels of per-couple incidents, a greater
degree of violence, and a risk of more serious injury. ld. In addition to severe physical
abuse, this type is also identified by a pattern of power, intimidation, and control of one
partner over another. See Bayes-Wiener, at 1048 (citing Ver Steegh, N.,
DIFFERENTIATING TYPES OF DOMESTIC VIOLENCE: IMPLICATIONS FOR CHILD CUSTODY, 65
La. L. Rev. 1379, 1380 (2005. In the United States, only a small minority of reported
domestic violence incidents, estimated at between II and 35 per cent, would conform to
this typology. Bayes-Wiener, ld. at 1049-50. By contrast, Bayes-Weiner notes that the
other three principal Johnson typologies of domestic violence, (I) Situational Couples
Violence, (2) Violent Resistance, and (3) Separation-instigated Violence, are
differentiated by the absence of power, intimidation and control motivations of the
violent actor. Id.
12
12 A highly correlated indicator is the finding that perpetrators of Coercive Controlling
Violence are very likely to be diagnosed with Axis II Personality Disorders, particularly
Borderline Personality Disorder and Antisocial Personality Disorder. Bayes-Wiener,ld.
at 1049-50. A diagnosis of such behavioral disorders as a component of the abuser's
motivation would logically have an adverse effect on a social group-based asylum
application, by breaking any nexus between the motivation for the act and the statutory
basis for the application. Assuming the scientific validity of the Johnson typology, only a
small percentage of domestic violence claims, where the severity ofthe violence was not
27
A legal standard based on the Controlling Coercive Violence social science model
is more suitable for use in asylum determinations than battered woman syndrome because
it is a gender-neutral standard. Empirical data has now made it clear that both men and
women perpetrate violence in domestic relationships. See Kelley, L., at 793-800. This
standard would also provide the immigration courts a more clinical basis for
distinguishing violence motivated by criminality or personality disorders from episodes
of legitimate persecution motivated by animus on account of one of the five statutory
grounds for asylum.
The Controlling Coercive Violence social science standard is also compatible
with the gender-neutral descriptions of "crime of domestic violence" applicable to
lawfully present aliens that are found elsewhere in federal immigration law. In
immigration law a "crime of domestic violence" means any "crime of violence," as
defined in 18 U.S.C. 16, for which "an alien who any time after admission [has been]
convicted." 8 U.S.C. 1227(a)(2)(E)(i). The crime of violence must be committed
against a current or former spouse, an individual with whom the alien shares a child in
common, or who is or has cohabited with the alien as a spouse or an individual similarly
situated to a spouse under the laws of the jurisdiction where the offense occurs. !d. "A
crime of violence is defined at 18 U.S.c. 16 as "(a) an offense that has as an element
the use, attempted use, or threatened use of physical force against the person or property
of another, or (b) any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of another may be used
a consequence of clinical behavioral disorder nor a criminal motive, would be viable as
persecution on account of membership in a particular social group.
28
in the course of committing the offense." Matter of Velasquez, 2010 BIA LEXIS 21 (BIA
2010).13
In A.R. C-G, the IJ decision identified no episodes of sexual violence or sexual
abuse by the husband towards the Respondent. Asylum applicant A.R. C-G
unsuccessfully submitted a claim for relief based on abuse which occurred within a
"marriage relationship" that she is "unable to leave." Decision,S. The IJ expressly
characterized the abuse by the husband against the Respondent as "criminal acts, not
persecution." Decision,S. The IJ characterized the alleged persecutor as "simply a
horrible husband who lacked a basic sense of morality." [d.
In Matter of M-J- V-, the extraordinary single reported episode in 2000 of battery
of an infant, rape of a sister, and battery of the Respondent after her unexpected
discovery of the prior two acts, better fits the situational couples violence typology. The
IJ correctly characterized the alleged Respondent as ''married to a person who abused her
and threatened her with additional harm," Decision, IS, but whose testimony "fails to
establish that the abuse suffered was motivated, even in part, by the Respondent's
membership in the proposed social group." Decision, 16. The threats and knife assault
over the subsequent six years seem best classified under a separation-instigated typology.
13Similarly, the Violence Against Women and Department of Justice Reauthorization Act
of 2005, Pub. L. No. 109-162, 3, 119 Stat. 2960, 2965 (2006) provides that the term
domestic violence "includes felony or misdemeanor crimes of violence committed by a
current or former spouse of the victim, by a person with whom the victim shares a child
in common, by a person who is cohabitating with or has cohabitated with the victim as a
spouse, by a person similarly situated to a spouse of the victim under the domestic or
family violence laws of the jurisdiction .... " 42 U.S.C. I 3925(a)(6). This VAWA
subsection is also referenced in 8 U.S.C. 1 I 84(d)(3)(A) and 1 1 84(r)(5)(A)(relating to
immigrant fiance visas.
29
Matter of R.D. c.P-G does present a scenario which on its face could fit the
Controlling Coercive Violence typology, and thus merit further assessment as domestic
violence eligible to be considered as persecution. The IJ found that the abuse was
egregious in its cumulative effect, and the abusive partner "wanted to control her and
confine her to his mother's home and wanted to prevent her from working." Decision, 3.
FAIR urges the BIA to consider whether its mission of bringing uniformity and
consistency to adjudications would be strengthened by drafting a gender-neutral and
more scientific regulatory definition of domestic violence applicable to asylum decisions,
to better distinguish between behavioral pathologies, criminal batteries and sexual
assaults, and cognizable acts of persecution. The BIA is urged to consider this issue in
crafting a precedential decision on the issue presented.
2. Most acts of domestic violence reported by asylum applicants lack the
severity of harm required for a rmding of persecution.
A second major obstacle to the formulation by the BIA of a precedential analysis
for domestic violence-based persecution claims is the absence of a uniform affirmative
definition of persecution in U.S. immigration law. If a claim of past persecution has been
filed, the IJ is required to make a finding regarding that claim. Mouawad v. Gonzales,
479 F.3d 589, 597 (8th Cir. 2007). Such a finding would necessarily consider whether
the alleged harm reached a level of "severity" sufficient to constitute persecution.
"Persecution" has not been defined by treaty, statute, or regulation, but the BIA has
filled the gap left by Congress with an official agency construction of "persecution."
Matter of Acosta, 19 I. & N. Dec. at 222. The BIA interpreted "persecution" to require "a
threat to the life or freedom of, or the infliction of suffering or harm upon, those who
30
differ in a way regarded as offensive." Id.
14
The BIA also provided illustrative examples
of harassment, adverse social or economic conditions, and oppressive discrimination
which it concluded did not rise to the level of the suffering or harm needed to constitute
persecution. Id.
Following Acosta, federal appellate courts tend to emphasize that the requisite level
of severity should be so harsh that it places the life or freedom of the applicant at risk.
15
The Eighth Circuit has been particularly clear on this high threshold for cognizable harm.
Persecution in the Eighth Circuit requires a showing of the infliction or threat of death,
torture, or injury to one's person or freedom, on account of race, religion, nationality,
membership in a particular social group, or political opinion. Regalado-Garcia v. INS,
305 F.3d 784, 787 (8th Cir. 2002). The mere presence of some physical harm does not
require a finding that the applicant has been persecuted in the past. Kondakova v.
Ashcroft, 383 F.3d 792, 797 (8th Cir. 2004); Setiadi v. Gonzales, 437 F.3d 710, 713 (8th
Cir. 2006)("Even minor beatings or limited detentions do not usually rise to the level of
past persecution. ") Emotional or psychological harm also do not presumptively
constitute persecution. Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir. 2004) (although
female respondent had been clinically diagnosed with symptoms of post-traumatic stress
disorder, such symptoms of emotional or psychological harm did not rise to the requisite
level of a threat to life or freedom.) Instead, unfulfilled threats must be so menacing as to
14 The phrase "upon those who differ in a way regarded as offensive" is simply a
paraphrase of "on account of an enumerated ground," and was taken by the BIA from the
legislative history of a 1978 precursor bill to the 1980 Refugee Act. In Re T -Z, 24 I. &
N. Dec. 163,170 (BIA 2007)(citingH.R. Rep. No. 95-1452, at 5 (1978.
IS But cf. Stanojkova v. Holder, 645 F.3d 943, 949 (7th Cir. 2011)(Esterbrook, J.: "The
[Acosta] definition was vacuous with regard to the minimum amount of harm required;
and since then the Board's approach, which reviewing courts have tended to mirror, has
continued to be of the 'I know it when I see it' variety.")
31
cause significant actual suffering or harm to constitute past persecution. Ramirez v.
Gonzales, 166 Fed. Appx. 261, 262 (8th Cir. 2006) (citing Lim v. INS, 224 F.3d 929, 936
(9th Cir. 2000).
Both the Fifth and Third Circuits have emphasized the limited scope of statutory
persecution under the Acosta doctrine:
[T)he concept of persecution does not encompass all treatment that our
society regards as unfair, unjust, or even unlawful or unconstitutional. If
persecution were defined that expansively, a significant percentage of
the world's population would qualify for asylum in this country -- and it
seems most unlikely that Congress intended such a result.
Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006); Fatin v. INS, 12 F.3d 1233, 1238-
1240 (3rd Cir. 1993).
In the Fifth Circuit, persecution is "infliction of suffering or harm, under
government sanction, upon persons who differ in a way regarded as offensive (e.g., race,
religion, political opinion, etc.), in a manner condemned by civilized governments."
Shufang Li v. Holder, 2012 U.S. App. LEXIS 1026 (5th Cir. 2012). Harm or suffering
need not be physical, but can also arise from "the deliberate deprivation of liberty, food,
housing, employment, or other essentials oflife." Abdel-Masieh v. INS, 73 F.3d 579, 583
(5th Cir. 1996). However, for suffering to constitute persecution requires more than a
few isolated episodes of harassment or intimidation. Eduard v. Ashcroft, 379 F.3d 182,
187 (5th Cir. 2004). It cannot be based on "mere denigration, harassment, and threats."
Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006).
In the Third Circuit, "persecution is defined as 'extreme behavior, including threats
to life, confinement, torture, and economic restrictions so severe that they constitute a
threat to life or freedom." Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003)
32
(emphasis added); Fatin, 12 F.3d at 1240. Persecution can include confinement, torture,
deadly threats, and economic restrictions, but the resulting harm must be "so severe" that
they constitute a threat to life or freedom. Fatin, at 1238-40. Findings of persecution as
a consequence of threats has been restricted to "only a small category of cases, and only
when the threats are so menacing as to cause significant actual suffering or harm." Li v.
Atty Gen'l of the u.s., 400 F.3d 157, 164 (3d Cir. 2005). Asylum protection has not been
formally extended to threats that, "while sinister and credible in nature, were not highly
imminent or concrete or failed to result in any physical violence or hann to the alien."
Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006). The mere "repugnance" of a
foreign governmental policy to our own concepts of freedom, is not sufficient to
characterize official policy as persecution. Blazina v. Bouchard, 286 F.2d 507, 511 (3d
Cir. 1961) cert. denied, 366 U.S. 950 (1961).
In Matter of MJ. V. the IJ identified as credible Respondent's testimony that, after
approximately six years of marriage, during one extraordinary incident in 2000 her
[husband, name redacted] had beaten and seriously injured her and her four year old
daughter, and had also raped her sixteen year old sister. Soon thereafter Respondent
chose to separate from the husband, and they never resumed cohabitation. Decision, 4.
During approximately six subsequent years of legal separation in Guatemala, through
2007, the husband contacted and threatened Respondent on average once a year.
Respondent testified that the motivation of the ex-husband was to pressure Respondent to
end the legal separation and resume marital cohabitation,which never occured. Testimony
identified a single violent confrontation during that six-year separation period. In 2007,
all further contact and threats of violence by the ex-spouse ceased. Decision, 4.
33
Given the testimony by Respondent MJ.V. identified as credible and relevant by
the IJ, the conclusion in the oral decision that Respondent's harm did not rise to the level
of persecution was correct. Taken together, Respondent's testimony of one apparently
traumatic episode of violence by the then-husband against his wife, his young daughter,
and his teenaged sister-in-law, followed by a prolonged separation punctuated by annual
threats and one further serious incident of violence against Respondent, culminating with
no further contact of any kind between the former partners after 2007, do not constitute
past persecution. The summary of the record does not show testimonial or documentary
evidence of violence which would constitute a sufficient severe threat to Respondent's
life, either cumulatively or in an individual instance.
16
Those two episodes of violence in
the record, occurring years apart, are readily distinguishable from the extraordinary
suffering over decades described in Matter of R-A-, both by a lesser frequency and
duration and by their much lesser degree of danger to the respondent's life and liberty. In
its original decision in Matter of R-A-, prior to the various remands, the BIA had affirmed
that atrocious abuse occurred "from the moment [they] were married," and continued
until the respondent fled Guatemala .... " 22 I&N 901, at 909 B.I.A. 1999).
While the Matter of MJ. V. Decision characterized the assaults by the husband on
his wife as "unconscionable" and found that "the years of domestic abuse have physically
and emotionally scarred the lead respondent," it simply did not rise to the level of
persecution required by the BIA: "[T]he pain and suffering experienced by the lead
16 The husband broke his daughter's arm. Breaking an applicant's hand did not constitute
persecution. Hussain v. Holder, 576 F.32d 54, 57 (1
st
Cir. 2009). The husband raped his
sister-in-law. The record contains no indication of sexual abuse directed at the
Respondent.
34
respondent was unfortunate ... but from the standpoint of the asylum laws, she has not
been persecuted." Matter ofM.J. V. at 5.
In A.R. C-G, the Respondent's testimony of threats and abuse found to be relevant
by the IJ also do not meet the standards for past persecution. The summary of the record
does not include death, rape, sexual abuse, false imprisonment in the home, or threats
with weapons, which would support a finding of a sufficiently severe abuse, either
cumulatively or in an individual instance. The Respondent "described [husband's]
continuous campaign of abuse ... directed at her" as beginning with beatings "sometime
after [Respondent] had given birth to their three children." A.R. C-G Decision, 2. She
described the beatings as [husband] "hit[ting] her with his face [sic] on her head face, and
body ... when ever he would come home in the evenings." ld. She specifically identified
two instances of abuse--one where [husband] broke her nose and another where
[husband] threw paint thinner on her. ld.
Like Matter of M.J. v., the abuses in the record in Matter of A.R. C-G are readily
distinguishable from the extraordinary suffering documented in Matter of R-A-, both by
their lesser frequency and duration and the degree of danger to the respondent's life or
liberty. Based on the evidence from the Respondent A.R.C-G's testimony, deemed
credible and determinative by the IJ, the finding that Respondent A.R.C-G's harm did not
rise to the level of persecution was not clearly erroneous.
Unlike the two decisions from immigration courts in the Eighth Circuit, in Matter
of R.D.C.P-G a Texas IJ found that the "accumulative effect of these abuses over time
discussed ... in this decision is sufficient to classify the abuses the respondent described
as persecution." Matter of R.D. c.P-G Decision, 8. Relying on In re 0-2-, 22 I & N Dec.
35
23, (BIA 1998), the U in Matter of R.D.C.P-G found that the "accumulative effect or
impact of the abusive conduct ... is egregious enough to rise to the level of persecution
even without pennanent injuries." ld. The "respondent has suffered egregious hann that
is so overwhelming that it can be classified as persecution ... " ld. at 10. The episodes in
the record cited by the U to establish that the hann was cumulatively egregious included
Respondent R.D.C.P-G's domestic partner punching her and causing a miscarriage, id.at
3; Respondent suffering other unspecified non-pennanent injuries from "beatings and
abuses occurring about three times weekly when her partner was not in jail," id.at 8; and
"[Respondent['s being] threatened with a fireann on at least one occasion." ld. Based on
those episodes, the U stated that this abuse was "more significant, more serious, more
unsettling and destructive" because "they were abuses of a person as opposed to property
crimes." ld. at 9.
The U's reliance on In re O-Z- was misplaced. In that case it was precisely the
cumulative effect of property crimes plus threats that were unmistakably motivated by
persecutorial anti-Semitism. These elements, which transfonned the
nonpermanent injuries from several isolated beatings into persecution, were entirely
absent from Respondent R.D.C.P-G's application. 22 I & N Dec.23, at 26. See
Ngengwe v. Mukasey, 543 F.3d 1029, 1037 (8th Cir. 2008)( seizure of property from
widow so severe as to cumulatively amount to persecution).
The BIA's reasoning and the U's rationale are thus at odds. This inconsistency
illustrates the difficulty the BIA faces in fonnulating a standard for severity in the context
of domestic abuse claims. If the Board continues to endorse a highly individualized fact
specific approach to the severity issue, it lacks a reasoned basis to categorically recognize
36
acts of domestic abuse as persecution or to distinguish them from lesser non-eligible
domestic conflict.
3. The suffering of a victim of domestic violence rarely rises to the level of
atrocity required for a grant of humanitarian asylum based on past persecution
alone.
Current regulations provide that documentation as a victim of extreme conduct
amounting to an atrocity can make an alien eligible for a discretionary grant of
humanitarian asylum by the Department of Homeland Security on the basis of past
persecution alone. 8 C.F.R. 1208.13(b)(I)(iii). Such conduct must be "particularly
atrocious."). The applicant must demonstrate that she was the victim of a bona fide
documented atrocity. Cigaran v. Heston, 159 F.3d 355, 358 (8th Cir. 1998)
("Humanitarian asylum has been reserved for those cases in which the past persecution
suffered has been particularly atrocious").
In perspective, this is arguably the highest burden of persuasion required for any
exercise of humanitarian relief by the federal govenunent., An abused alien is "eligible"
for a grant of asylum under the humanitarian asylum regulation only in the "rarest"
circumstances, to prevent "an avalanche of asylum-seekers." Mitreva v. Gonzales, 417
F.3d 761, 765 (7'h Cir. 2005); see also Perez v. AG of the U.S., 422 Fed. Appx. 158, 163
(3d Cir. 2011) (Despite the court's sympathy for the applicant who was violently
sodomized and beaten by rebel militants, the applicant still could not satisfy the high
burden under 8 C.F.R. 1208.13(b)(l1 )); MamiJwe V. Holder, 572 F.3d 540, 549 (8th
Cir. 2009) (Angolan woman kidnapped and gang-raped by militias ineligible for
37
humanitarian asylum under 8 C.F.R. 1208.13(b)(1)(iii)(A) because acts were not on
account of a statutory ground and thus not past persecution.) 17
C. The Nexus Requirement for Cognizable Harm
"Asylum review does not end with a detennination of persecution. The alien
carries the burden to establish a nexus between the persecution and one of the five
statutory grounds for asylum. See 8 U.S.C. I 158(b)." Tamara-Gomez v. Gonzales, 447
F.3d 343, 349 (5th Cir. 2006). For an asylum claim based on membership in a particular
social group, the alien must establish that she would be persecuted or has a well-founded
fear of future persecution on account of that membership. Gomez v. Gonzalez, 425 F.3d
543, 544-46 (8th Cir. 2005); see also Falin, 12 F.3d at 1240. Whether an applicant
suffered or will suffer persecution on account of a statutory ground, in this case
membership in a particular social group, is a question oflaw. Sarkisian v. AG of the US.,
322 Fed. Appx. 136, 141 (3d Cir. 2009).
1. Victims of domestic violence by a private actor can rarely show that violence
by an intimate partner was committed with the imprimatur of a government entity.
Persecution consists only of "extreme conduct" - as opposed to extreme
circumstances or extreme conditions in the applicant's homelandor last habitual
residence. Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir. 2004); Eduard v.
17 A humanitarian asylum claim may also be based on a showing that the alien will suffer
"other serious harm upon removal," 8 C.F.R. 1208.13(b)(1)(iii)(B), defined as harm
equal in severity to persecution but not inflicted on account of one of the five asylum
grounds. Krastev v. INS, 292 F.3d 1268, 1271 (lOth Cir. 2002). However such a claim is
an either/or proposition, and would preclude relief for any of the Respondents, whose
applications are based on one of the five asylum grounds, membership in a particular
social group. Ixtlilco-Morales v. Keisler, 507 F.3d 651, 656 (8th Cir. 2007).
38
Ashcroft, 379 F.3d 182, 187 (5th Cir. 2004); Zakirov v. Ashcroft, 384 F.3d 541, 546 (8th
Cir. 2004). In Matter of Acosta, the BlA specifically excluded "generally harsh
conditions shared by many other persons" from the definition of persecution. 19 I. & N.
Dec. at 222.
A finding of past persecution thus requires the applicant to establish the existence
of a personal persecutor or actor; mere harm caused by generalized conditions of conflict
or strife cannot satisfy the nexus requirement. INS v. Elias-Zacarias, 503 U.S. 478
(1992); In re S-P-, 21 1& N Dec. 486, 489 (BIA 1996).18 To be cognizable, the harm or
suffering must be inflicted by either the government of a country, or persons or an
organization that the government was unable or unwilling to control. Acosta, 19 1. & N.
Dec. at 222.
Domestic violence is typically private behavior, perpetrated within the household
or family or between persons having a domestic relationship. For the acts of a private
(rather than govermnental) actor to constitute "persecution," the respondent must show
that the govermnent is unwilling or helpless to protect people like the respondent.
Mendez-Garcia v. Holder, 2011 U.S. App. LEXIS 17896 (7th Cir. 2011).
An applicant seeking to establish persecution by a government based on violent
conduct of a private actor must show more than just a "difficulty controlling private
18 Congress subsequently recognized this exclusion by enacting the Temporary Protected
Status ("TPS") statute, INA 244. By creating a TPS immigration classification,
Congress intended to distinguish cognizable acts of persecution for which asylum would
be appropriate, from harm caused by generalized forces such as acts of war, nature, or
God which would constitute a "serious threat" to the alien's personal safety for which
TPS would be appropriate. See INA 244, 8 U.S.C. l254a (establishing standards for a
grant oftemporary protected status); Escobar v. Gonzales, 417 F.3d 363, 368 (3,d Cir.
2005) (no finding of persecution for impoverished Honduran youth who was physically
abused by relatives, even though parent had been granted TPS).
39
behavior" or ineffectiveness in the enforcement of protective laws. Salman v. Holder,
687 F.3d 991, 995 (8th Cir.2012) (citation omitted); In re McMullen, 17 I. & N. Dec. 542,
546 (BIA 1980) (difficulty of authorities in controlling private behavior found
insufficient). Instead, the applicant "must demonstrate that the government condoned the
private behavior 'or at least demonstrated a complete helplessness to protect the
victims.'" Salman, at 995. "In particular, 'the fact that police take no action on a
particular report does not necessarily mean that the government is unwilling or unable to
control criminal activity, because there may be a reasonable basis for inaction.'" !d.; see
also Valioukevitch v. INS, 251 F.3d 747, 749 (8
th
Cir. 2001)(an asylum claim based on
actions by non-governmental parties fails where none of the incidents of abuse "occurred
with the imprimatur" of government officials); Hasalla v. Ashcroft, 367 F.3d 799, 804
(8th Cir. 2004)(a finding that police take no action on a particular report does not
necessarily mean that the government is unwilling or unable to control criminal activity,
which requires evidence of the basis for inaction).
Furthermore, even if the proposed 2000 regulations making gender a per se
ground for persecution had been implemented, that agency action would still not have
eliminated the requirement that any harm by a private actor can only constitute
persecution when it is inflicted by "a person or group that government is unwilling or
unable to control." Valle-Montes v. AG of the U.S., 342 Fed. Appx. at 857 (citing
proposed Asylum and Withholding Definitions, 65 Fed. Reg. 76588, 76597 (Dec. 7,
2000))(insufficient evidence of government willingness to control private actor
persecution where EI Salvadoran police took rape victim (and her father's) statements,
despite ineffective follow-up).
40
The Seventh, Fifth, First and Eleventh Circuits have similar nexus standards for
private actor persecution. The applicant must show that the government "condoned it or
at least demonstrated a complete helplessness to protect the victims." GaUna v. INS, 213
F.3d 955, 958 (7th Cir. 2000); see also Roman v. INS, 233 F.3d 1027, 1034 (7th Cir.
2000); Mohammad v. Ashcroft, 90 Fed. Appx. 746, 748 (5th Cir. 2004) (citing Meghani
v. INS, 236 F.3d 843, 847 (7th Cir. 2001)). An applicant must at least show the
government's acquiescence in the persecutor's acts or its inability or unwillingness to
investigate and punish those acts. Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir.
2007). A general difficulty preventing the occurrence of particular future crimes does not
meet this standard. Id.; see also Garcia-Garcia v. Mukasey, 294 Fed. Appx. 827, 829
(5th Cir. 2008)(applying the Keisler standard); Morehodov v. United States AG, 270 Fed.
Appx. 775, 779 (11 th Cir. 2008). The threshold for finding governmental "helplessness"
in the case of private actors engaging in spousal abuse is a high one. In Mendez-Garcia
v. Holder, the Seventh Circuit recently held that introduction into the record of two U.S.
State Department Reports on Human Rights Practices in Guatemala and a United Nations
Special Rapporteur report which identified rampant violence against and killings of
women, low prosecution rates for rape and domestic violence crimes, inadequate police
training on domestic violence, police corruption, police reluctance to respond to domestic
violence cans, and bureaucrats' complaints of a lack of resources for protecting women
did not reach the requisite level of Guatemalan govermnent "helplessness" for
establishing a fear of persecution from an abusive ex-spouse for asylum purposes. 2011
U.S. App. LEXIS 17896, 4-5 (7th Cir. 2011). Similarly, the Ninth Circuit rejected a
comparable record of private actor abuse in a Mexican male homosexual claim. See
41
Castro-Martinez v. Holder, 641 F.3d 1103, 1105 (9th Cir. 2011) (homosexual rapes not
inflicted by Mexican government actors failed to establish pattern or practice of
persecution, even where Country Reports documented Mexican societal discrimination
against homosexuals, attacks on gay men by private parties, evidence of widespread
police corruption in Mexico, and incidents of Mexican police violence against
homosexuals); see also Urquia-Rodriguez v. AG of the U. S., 372 Fed. Appx. 256, 259
(3d Cir. 2010) (State Department reports showing widespread government corruption,
police brutality, and gang violence in Honduras were insufficient to establish that the
Honduran government would acquiesce to victimization of the applicant, who had been
gang-raped, if she were removed).
In Matter of M.J. V. the facts deemed relevant by the U do not demonstrate that
local authorities "condoned" or "demonstrated a complete helplessness to protect the
victim" against the husband's abusive behaviors. Salman, at 995. The Respondent
M.J.V. testified that during the years of her marriage and the six subsequent years oflegal
separation, she only contacted the police once, in February 2007, who on that occasion
"were not effective in stopping [the ex-husband] from contacting the respondent and
threatening and intimidating her." Decision, 2. The record is thus ambiguous as to what
actions, if any, the police would have taken against her husband/former husband??? for
his child and spousal battery and rape of Respondent's sister, had it been reported. Such
ambiguity cannot satisfY the applicant's burden to demonstrate the government's
"complete helplessness" to protect her.
In Matter of A.R. C-G, there is a similar absence of findings to support the
required '''condoned' or 'demonstrated a complete helplessness to protect the victim'"
42
standard for ineffectiveness of government protection against abusive behavior
committed by a private actor, in this case the applicant's husband's. The IJ identified as
relevant evidence the Respondent's testimony that during the years between her marriage
and her unlawful joumey to the United States, she contacted the police "a few times and
was told they would not interfere in [sic] marital relationship." One time Respondent
"filed a formal complaint." Another time, "police came to her home, but did not arrest
[husband] after she "told police that [husband] had hit her in the head. Later, [husband]
told Respondent "that if she tried to call the police again he would kill her." A.R.C-G
Decision, 2.
On the single occasion when Respondent A.R.C-G actually filed a formal
complaint, the police did investigate sufficiently and determined that the husband's acts
did not constitute a threat to Respondent's life or freedom under local standards.
Decision, 2. As for the episodes when Respondent contacted the police informally, she
subsequently decided, without coercion, to resume cohabitation with her husband. Id. 9-
10. Given the absence oftestimony as to coercion, her decision to resume cohabitation is
additional support that the evaluation of the situation by the local police was not
negligent or arbitrary, much less indicative of a "complete helplessness" in the area of
domestic violence. The unfulfilled threat by the husband to kill Respondent if she "tried
to call the police again" is ambiguous as to whether a fear that the police would arrest
him restrained the husband against any future violence. Id. at 2, Therefore,
Respondent's own testimony thus implies that neither she nor her husband considered the
police to be completely helpless, the determinative standard. Where the public record, as
in this case, only reveals at worst police ineffectiveness, the IJ is obliged to hold as a
43
matter of law by the Salmon standard to find that the local and national law enforcement
in Country X had not degenerated to an "unable and unwilling" level of performance
where every misogynist qualified as a potential private actor persecutor.
2. Victims of domestic violence can rarely show that their domestic partner's
acts were motivated by a statutory characteristic possessed by the victim.
Since 1980, the INA has required the applicant for asylum to provide evidence
that the acts of the persecutor were motivated by a statutorily recognized characteristic of
the victim. INS v. Elias-Zacarias, 502 U.S. 478,483 (1992) ("the statute makes motive
critical, he must provide some evidence of it, direct or circumstantial."). That evidentiary
requirement was heightened by passage of the REAL ID Act in 2005. Congress expressly
directed that henceforth persecution can occur "on account of' a protected ground only if
that ground serves as "at least one central reason for" the feared persecution. 8 U.S.C.
1158(b)(1 )(B)(i). The applicant must demonstrate more than "an 'incidental, tangential,
superficial, or subordinate' reason" for his persecution. In re J-B-N-, 24 L & N. Dec. 208,
212, 214 (BIA 2007); Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009). But even
before 2005, neither asylum nor withholding of deportation relief ever provided for
protection "on account of' human rights abuses unconnected to the five specific grounds
enumerated in the INA. Matter ofT--, 20 L & N. Dec. 571, 577 (BIA I 992)(citing INA
208(a), 243(h)(1), and 101 (a)( 42)( definition of a refugee.
A persecutor's actual motive is thus a matter of fact to be determined by the
immigration judge and reviewed by the BIA for clear error. Matter of N-M-, 25 I&N
Dec. 526, 532 (BIA 2011).
In Matter of M-J- V- the the original violent episode in 2000 strongly suggests that
the husband's personality was the proximate cause of Respondent MJ.V.'s physical
44
abuse, not her membership in a social group. Matter of M.J. V. Decision, 5. Similarly, in
Matter of A.R.C-G, the summary of relevant facts on which the IJ relied clearly indicate
that the husband's sociopathic criminal personality was the proximate cause of
Respondent A.R.C-G's physical abuse. Matter of A.R.C.-G Decision, 5 ("[He] was
simply a horrible husband who lacked a basic sense of morality. He beat the respondent
arbitrarily and capriciously. There is no evidence that he ever sought to overcome a trait
that the lead respondent possessed.").
As was the case in the original Matter of R-A -, the essential nexus formulations in
both M.J. V. and A.R. C-G are defective. In each case, the applicant "fails to show how
other members ofthe group may be at risk of harm from him." Matter of R-A-,22 I. & N.
Dec. 906, 920 (BIA 1999); see also Sanchez v. Holder, 332 Fed. Appx. 199,202 (5th Cir.
2009) (No matter how abhorrent the crime, U.S. asylum laws were not written to provide
sanctuary where a particularized connection was missing between an applicant's fear of
future persecution and membership in a proposed social group of Honduran women who
have been raped.).
In both cases, the Respondents' nexus theory "is not backed by specific proof in
the record and is presented at too high a level of abstraction." Mazariegos v. Office of the
United States AG, 241 FJd 1320, 1328 (lIth Cir. 2001). The IJ in each case correctly
held that the motivation for the violence was based on personal or criminal intent, rather
than on account of the respondent"s membership in a particular social class.
In Matter of R.D.C.P-G, the IJ found no nexus between the motivation of the
Respondent's abusive domestic partner and any statutory ground, despite concluding that
the harm amounted "accumulatively" in severity to persecution. Matter of R.D.C.P-G
45
Decision, 8. The relevant threats and abuse were motivated by a desire "to control her
and confine her to his mother's home and to prevent her from working." [d. at 3. The IJ
explained that "the motive " .was based on a number of motives perhaps even
psychological defects." [d. at 8-9. "[T]his type of motive which falls into a personal type
of category does not support an asylum claim" because "an aliens fearing retribution over
purely personal matters cannot establish persecution." [d. at 10.
3. Criminal sexual violence rarely has the requisite nexus with a statutory
ground for asylum.
Emphasizing the gender-related or sexual aspects of a case cannot supply the
essential nexus between the harm claimed and a protected statutory ground. Where
sexual harm or threats of sexual harm are motivated by the sexual attraction of the
persecutor toward a victim, regardless of its offensiveness or predatory character, they
generally lack the requisite nexus to persecution under the INA, because Congress did
not contemplate that a claim of sexual harassment would constitute the type of
persecution for which asylum would be granted. Klawitter v. INS, 970 F.2d 149, 152 (6th
Cir. 1992); Mendez-Garcia v. Holder, 2011 U.S. App. LEXIS 17896 (7th Cir. Aug. 25,
2011) (threats, physical abuse, and generalized traumatic "despair" provoked by ex-
spouse in Guatemala did not rise to the level of past persecution).
Rape is committed for many reasons, but as an act of criminal violence is not a
presumptive act of persecution, even when committed by unrelated parties. Pheng v.
Holder, 640 F.3d 43, 47 (1st Cir. 2011) (no evidence that multiple rapes by police officer
of Cambodian wife of murdered politician were committed for statutory reasons, even
where Country Reports reported that rape was "widespread" in Cambodia); Khozhaynova
46
v. Holder, 641 F.3d 187, 196 (6th Cir. 2011)(repeated threats, robbery, beatings and an
unreported rape by Russian female shop owner not sufficient to show gender-based
persecution). Even persecution claims based on aggravated battery, rape, and assault
with a deadly weapon have been rejected by the Third Circuit, where the central nexus
was found to be criminal. Lopez-Perez v. AG of the U.S., 2011 U.S. App. LEXIS 19309,
14-15 (3d Cir. 2011) (criminal activity by private actors does not constitute persecution).
In the handful of recent cases where conjugal rape and severe sexual harm have
been found to constitute persecution, the procedural circumstance under which those
cases were resolved restricts their usefulness as precedent. See Whitley Brief; 17. For
example, in Matter of R-A-, after the final remand by the Attorney General, 24 I&N Dec.
629 (AG 2008), counsel for the DHS and the applicant first agreed to a grant of asylum.
As a consequence, the IJ did not make an independent determination as to whether R-A-'s
proposed particular social group satisfied the requirements for asylum, or the BIA's then-
new considerations of social visibility and particularity.
In Re L-R- is the other "domestic violence" IJ decision that has been publicized by
those seeking to broaden the meaning of asylum to include gender-related domestic
violence as representing an agency reinterpretation of the statutory framework that
supports recognition of female subject of domestic abuse from countries with patriarchal
cultures as victims of persecution. In re L-R- [case number redacted] (San Francisco
Immigration Court, August 10, 2010). The procedural posture of that IJ case does not
support that position. Originally in the immigration court, the IJ denied an application for
asylum based on membership in a particular social group, defined as Mexican women in
an abusive domestic relationship who are unable to leave, on the grounds that the
47
proposed social group was not cognizable, and there was no persecutorial nexus between
the criminal motivations of the abusive actor and harm and suffering experienced by the
applicant. See Matter of L-R-, Center for Gender and Refugee Studies, (summary of case
by applicant's legal counsel)
http://cgrs.uchastings.eduicampaigns/Matter%200f%20LR.php. (viewed September 5,
2012). An appeal was filed with the BIA, but the BIA issued no decision. Id. Instead, the
BIA remanded the case by joint stipulation, after the Obama administration suddenly
filed a brief arguing a radically different position on gender-based definitions of statutory
social groups. Upon remand, the IJ simply accepted a DHS recommendation supporting
a grant of asylum based on a generic "the stipulation ofthe parties." Id. This decision was
thus non-reported and non-precedential. Moreover, the action was questionable as a
matter of law, as asylum may only be granted by an immigration judge where authorized
by existing statute. 8 U.S.C. 1l01(a)(42)(A);
In Matter of MJ. v., the IJ decision correctly recognized that the "record ... fail[edJ
to establish" that the "single episode of criminal sexual violence by the alleged persecutor
in the domicile against a third party, the rape of the Respondent's sister ... was motivated,
even in part, by the respondent's membership in the proposed social group." Decision,
17. The witnessing ofhann to a family member or third party will not constitute persecution
of the applicant (assuming the hann reaches the severity level required for persecution)
unless the intent in harming the third party is to target the applicant on account of a protected
characteristic. See Langlois, Persecution of Family Members, Memorandum to INS
Asylum Division, AILA Doc. No. 97063090 (June 30, 1997). Nothing in the record of
Matter of M.J. V. demonstrated that the husband raped Respondent's teenage sister to
persecute Respondent for being a married woman in a marriage relationship she could not
48
leave. Decision, 9-10. The IJ finding was thus not clearly erroneous as the rape was a
obvious proximate cause of the break-up of the relationship.
In neither Matter of A.R. C-G nor Matter of R.D. c.P-G does the IJ decision indicate
that sexual abuse or violence was a relevant factor. In both cases, the IJ recognized in the
male partner only a sociopathic personal desire to control the movement of the
Respondent partner outside of the domicile. A.R. C-G Decision, 5; R.D. C.P-G Decision,
8-9. The decisions mention no other gender-related factor.
D. A Well-founded Fear of Future Persecution
1. Victims of domestic violence can rarely show a well-founded future fear of
being singled out for persecution or a risk of a systematic or organized effort
to kill, imprison, or severely injure them.
Under the INA, when an applicant for asylum cannot demonstrate past
persecution, the applicant may still qualify for asylum by demonstrating a well-founded
fear of future persecution on account of his or her membership in a particular social
group. INA 101(a)(42); 8 U.S.c. 1101(a)(42). To establish a cognizable fear of
future persecution, an applicant must demonstrate that she or he "has a genuine (i.e.
subjective) fear, and that a reasonable person in her circumstances would have an
objective fear of persecution if returned to her native country." Abdulrahman v. Ashcroft,
330 P.3d 587, 592 (3d Cir. 2003); INS v. Cardoza-Fonseca, 480 U.S. at 430-31. A
showing of past persecution creates a rebuttable presumption that the applicant will be
subjected to future persecution. 8 C.P.R. 1208.l3(b)(I). The burden of proof to rebut
the assumption, by a preponderance of the evidence, is placed on DRS. 8 C.P.R.
1208.l3(b)(I)(B)(ii). When the facts supporting an applicant's asylum claim are not
49
disputed, whether she can possess the necessary objective fear is a question of law. Jian
Hui Shao v. Bd. of Immigration Appeals, 465 F.3d 497,501 (2d Cir. 2006).
Under the "reasonable person" portion of the well-founded fear test, an asylum
applicant must establish either (1) that there is a reasonable probability she will be
singled out individually for persecution on account of a protected characteristic, or (2)
that there is a pattern or practice, in her country, of persecution against the group to
which she belongs. 8 C.F.R. 1208.13(b)(2); Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.
2005). "Singled out" means that a petitioner must demonstrate that the persecution they
fear would not be experienced by other members of the community outside their
proffered group. Fatin v. INS, 12 F.3d at 1243.
A major barrier for a victim of domestic abuse attempting to establish a
reasonable probability of being singled out for persecution is that the fear of future crime
in an applicant's native country, even if bona fide, by law does not meet the standard for
a well-founded fear of future persecution on account of a statutory ground. Soha Farouk
Fahmy Abdelhalim v. Holder, 417 Fed. Appx. 536,541 (6th Cir. 2011)("Abdelhalim's
application focuses on crime, and this court has previously held that the fear of crime is
legitimate but is not relevant to her fear of future persecution."); see discussion, Part
IV.C.3, supra. None of the three decisions under review find that any of the
Respondents would be singled out by anyone other than their former husband or domestic
partner if they were removed. None of the Respondents have established that other
members of their proffered group are at risk from the designated persecutor's abuse, or
that such abuse is not suffered by persons in marriages or intimate domestic relationships
who are not "unable to leave the relationship."
50
To constitute a pattern or practice, the persecution of a protected group must be a
"systematic, pervasive and organized effort to kill, imprison, or severely injure members
of the protected group, and this effort must be perpetrated or tolerated by state actors."
Mitreva v. Gonzales, 417 F.3d at 765. No Respondent in any of the cases under review
would be able to maintain an objective showing of a "practice or pattern" of persecution
in Guatemala or Country X. None of the decisions find or even imply that a claim has
been made that state actors have ''perpetuated'' a "systematic ... or organized effort" to
kill, imprison, or severely injure women in a marriage or intimate domestic relationship
who are unable to leave the relationship.
In A.R. C-G, the IJ found that the husband "has harmed the lead respondent and it
is certainly possible that he may harm her in the future." Decision, 6. The IJ correctly
distinguished that possibility of future criminal acts by the husband from a well-founded
fear of future persecution. If there was no nexus between the harm already suffered and
membership in a proposed particular social group, there could be no objective basis for a
well-founded future fear of persecution-as distinguished from future criminal harm at
the hands ofthe abusive actor.
In Matter of M.J. v., Respondent testified that her daughter still resides in
Guatemala with her sister, and that [husband] had not contacted Respondent or her family
members since 2007. Decision,S. Both factors support a conclusion that it was not clear
error for the IJ to find that the Respondent's failure to meet the nexus requirement
foreclosed her ability to demonstrate a well-founded future fear. ld. at 16.
The Respondent in Matter of R.D.C.P-G was the only applicant found to have
suffered "accumulative" harm that was "sufficient to classify the abuses the respondent
51
described as persecution." Decision, 8. Respondent was thus the only applicant in the
cases presented for supplemental briefing who could benefit from the presumption in 8
C.F.R. 208.13(b)(1)(iii) of a well-founded future fear of persecution based on past
persecution. But the IJ then found that "she has failed to establish a well-founded fear of
future persecution even though she has articulated a believable sUbjective fear of
returning to [Country Xl." ld. at 10. The IJ explained, "It is well settled that an alien's
fearing retribution over purely personal matters cannot establish persecution. Matter of
Mogharrabi, at 447." ld.
The significance of the difficulty experienced by the three Us in finding either a
"pattern and practice" or a probability of being "singled out" for persecution, given the
essentially private character of the domestic abuse reported in the decisions, is that the
abuse committed by the husband/domestic partner was hyper-local in character. None of
the three records suggests the existence of a national or even community effort to commit
domestic abuse. No claim was made or considered that state actors at any level have
"perpetuated" a "systematic ... or organized effort" to kill, imprison, or severely injure
"women who suffer domestic violence." Mitreva v. Gonzales, 417 F.3d, at 765. For the
BIA to overlook this absence of record evidence would render the statutory requirement
that the fear be "well-founded" a nullity.
2. The presumption that safe relocation would not be reasonable conflicts with
controlling law when applied to domestic violence applicants.
Consistent with asylum's core purpose as protection and not an immigration
benefit, a basic objective of U.S. immigration and refugee law is securing the safe
relocation of a victim of persecution within another locality of the applicant's country of
52
origin. An applicant is not eligible for asylum based on past persecution and does not
have a well-founded fear of future persecution if the applicant could avoid persecution by
relocating to another part of the applicant's country of nationality, or, if stateless, to
another part of the applicant's country of last habitual residence, where under all the
circumstances it would be reasonable to expect the applicant to do so. 8 C.F.R.
1208.13(b) (1)(i)(8); (2)(ii)(2011), Matter of Fuentes, 19 I. & N. Dec. 658, 663
(B.I.A. 1 988)(asylum claim based on nongovernmental action not adequately established
where the respondent's evidence is directed only to a local area of his country of
nationality.) The regulation envisions a two-part analysis: Whether a safe relocation
would be possible, and whether it would be reasonable. There is a regulatory presumption
that relocation would not be reasonable, absent a DHS showing, by a "preponderance of
evidence" to the contrary. 8 C.F.R. 1208.l3(b).
Several analytical difficulties arise in applying this regulatory reasoning and
burden-shifting scheme to a member of the particular social groups of married women or
women in intimate domestic relationships " ... who cannot leave the relationship." First,
domestic violence is per se localized abuse. The site of the abuse is the domicile or local
community wherein the abuser cohabits with the victim. To hold that domestic violence
is not by default localized abuse would compel the conclusion that any future intimate
male-female relationship within Country X would as a matter oflaw place the respondent
at risk of persecution. Such a stance would conflict with the circularity, particularity, and
nexus requirements of the particular social group ground. Yet that is the practical effect
of the 8 C.F.R. l208.13(b) presumption against reasonableness of relocation in the
context of private actor domestic abuse. These scenarios are distinguishable from, for
53
example, the successful cases of asylum granted on the ground of membership in a social
group comprised of women in a particular tribal society who are subject to female genital
mutilation. See e.g. Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). In such cases,
universal female mutilation was found to have a recognized legal status in the entire
contextual tribal society, enforced pursuant to customary law by all adult members of the
tribe.
Second, "inability to leave" the domestic relationship is a claimed core
characteristic of the proposed social group. If, as in these cases, the Respondent was in
fact able to terminate the marriage or intimate relationship, she has failed to establish her
membership in this particular social group. That failure would also necessarily rebut the
presumption that the applicant was unable to relocate, a finding that would however be in
direct conflict with the existing regulatory presumption. In the private actor context,
these two elements of an asylum claim are afortiori interdependent.
In Matter of M.J. v., the relevant testimony of the Respondent failed to show that
Respondent was unable to leave and thereby safely relocate, on the basis of either legal
impediments or the claimed lack of police protection. Matter of M.J. V. Decision, IS. In
Matter of A.R.C-G, Respondent's relevant testimony failed to state whether (1) she could
obtain a legal separation or divorce in Country X, or (2) whether Country X police could
protect her in another location, if her legal status changed and if she filed formal
complaints such as the one to which she testified the police in her former domicile had
responded. Matter of A.R.C.-G Decision,S.
For both Respondents, the absence of an U finding of a "pattern and practice" of
persecution, given the essentially private character of the domestic abuse in the record,
54
strongly supports an affinnation by the Board that it was reasonable to conclude that the
abuse committed by the husband was entirely local in character.
In Matter of R.D.G.C-P, there are conflicts in the chronology of events as
summarized in the IJ decision that leave the question of any interaction between abuse
and Respondent after December 2008 unanswered. See footnote 5. The abuser is
described as a gang member, but there is no testimony noted in the decision that would
establish that (1) the abuser's gang operated beyond the immediate local community, or
(2) that the abuser would use gang members to retaliate against the Respondent, either in
the [redacted] locality or a relocated domicile elsewhere in Country X if she were
removed from the United States.
In a larger context, when the regulatory presumption against the reasonableness of
relocation is applied to private individual actors, it conflicts with the core objective of
refugee law, to provide immediate protection against harm amounting to persecution, as
opposed to a remedy for cultural barbarism in Country X, or an immigration benefit for
those seeking to remain in the United States. FAIR has previously commented that there
is little to no evidence in the legal literature of cases of nonrefoulment violations by our
courts, where aliens were denied asylum in error and subsequently experienced
persecution after removal. 19
Finally Congress, which through its statutes sets immigration policy, has provided
the U.S. Department of Justice with a statutory tool to significantly reduce the likelihood
that a victim of domestic violence will be unable to relocate within his or her home
19 See Hethmon, TSUNAMI WATCH ON THE COAST OF BOHEMIA: THE BIA STREAMLINING
REFORMS AND JUDICIAL REVIEW OF EXPULSION ORDERS, 55 Catholic U. L.R. 999, 1052-
1053 (2006).
55
country due to governmental inaction. The Attorney General has the authority
(concededly invoked very infrequently) to request that U.S. consular authorities use their
discretionary power to deny visa applications in cases where the removal of a national of
the relevant foreign nation has been "unreasonably delayed" by the foreign government.
INA 243(d); 8 U.S.C. 1253(d). FAIR suggests that it is an appropriate construction of
that statute for the BIA to find that foreign officials, who are found to be ''unwilling and
unable" to protect their nationals who file defensive applications for asylum in the U.S.,
have ''unreasonably delayed" the safe return of the applicants within the meaning of
243( d). In that scenario, the BIA would have a basis in statute to recommend to the
Attorney General that the prescribed notification to the U.S. Department of State be
made. Utilization of the 243(d) procedure by IJs, with the oversight ofthe BIA, would
improve the specificity of data on risks of internal relocation available to adjudicators,
officials, and advocates alike. The sanction of denying U.S. visas to such officials and
their family would help strengthen vital indigenous protection from persecution
initiatives in many foreign nations.
VI. CONCLUSION
The serious social problem of domestic abuse is universal in human society.
However, it cannot be remedied under the statutory definition of persecution on account
of an enumerated ground. The analytical difficulties amply illustrated by the three
Respondents' testimony and the IJs' responses in these cases suggest that it is not
possible to formulate a viable legal construction of domestic abuse on either the basis of
individual suffering, or a finding of society-wide cultural misogyny, the two most
56
common theories advanced by those seeking a regulatory reinterpretation of the
immigration laws. These extremes are simply incompatible with the statutory parameters
of INA 208.
The variant formulations of "particular social group" proposed by the three
Respondents failed to meet any of the four current tests recognized by the BIA. The
major obstacles to a permissible formulation continue to be problems with circular
reasoning, where the common characteristic of the proffered social group is the harm it
suffers, and the inability of domestic violence victims to show the required nexus
between the harm they have suffered and a protected ground. The summaries of relevant
facts identified in the three U decisions also failed to demonstrate anything more than
localized ineffectiveness of law enforcement. The U's analysis of the objective motives
of the husband correctly identified the non-persecutorial proximate cause for the abuse--
the common criminality and personal cruelty of the husband or male domestic partner.
Review of the decisions for which the BIA has requested supplemental amicus
briefing indicate the BIA's current formulation of "membership in a particular social
group" is correct. It is consistent with the inclusive character of the five grounds for
protection established by the framers of the original Refugee Convention and
Congressional intent expressed in the plain language of the Refugee Act of 1980.
Criminal violence between spouses is not persecution, and the BrA has not yet
devised a legally sound method for analyzing claims of harm that can consistently
distinguish between ineligible criminality and cognizable persecution. FAIR urges the
BIA, perhaps in consultation with other government agencies, to propose a more
scientific, gender-neutral definition of domestic violence compatible with INA 208
57
standards. possibly along the lines of the Controlling Coercive Violence typology
discussed in Part B.l, infra.
The finding and conclusions of law in the written IJ Decision in each case were
not clearly erroneous, and the three orders denying the Respondents' applications for
asylum should all be sustained by the Board.
Respectfully submitted,
Immigration Reform Law Institute, Inc.
25 Massachusetts Ave. NW, Suite 335
(202) 232-5590
info@irli.org
58
Certificate of Service
I hereby certify that on November 13,2012, a copy of this amicus curiae brief was served
on the parties below, by hand delivery or first class mail, postage prepaid, as directed by
the Board of Immigration Appeals:
Board of Immigration Appeals
Clerk's Office
Attn: Rebecca Noguera
5107 Leesburg Pike, Suite 2400
Falls Church, VA 22041
Michael P. Davis
Deputy Director, Field Legal Operations
Department of Homeland Security
DHS Office of the Chief Counsel/HOD
126 Northpoint Drive
Suite 2020
Houston, TX 77060
Gino Mesa, Esquire
Law Offices of Gino Mesa
2028 Dismuke Street
Houston, TX 77023
American Immigration Lawyers Association
1331 G Street, NW, Suite 300
Washington, DC 20005
lSI MICHAEL HETHMON
59
I hereby certify that on November 13,2012, a copy of this amicus curiae brief was served
Board of Immigration Appeals
Clerk's Office
Michael P. Davis
DHS Office of the Chief CounsellOMA
1717 Avenue H
Omaha, NE 68110
Kristin A. Fearnow, Esquire
Peck Law Firm, LLC
212 S 74th Street, Suite 100
Omaha, NE 68114
lSI MICHAEL HETHMON
59
I hereby certify that on November 13, 2012, a copy of this amicus curiae brief was served
Board ofImmigration Appeals
Clerk's Office
Michael P. Davis
DHS Office of the ChiefCounsellKansas
2345 Grand Blvd.
Suite 500
Kansas City, MO 64108
Roy Petty, Esq.
Law Offices of Roy Petty
402 N. Second Street
Rogers, AR 72756
lSI MICHAEL HETHMON
59

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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