SCATTERGORIES: Winning Asylum
Claims Based on Particular Social
Group
Speakers:
Dree Collopy, Benach Ragland LLP
Jason Dzubow, Dzubow & Pilcher, PLLC
Patricia Minikon, Minikon Law, LLC
Moderator:
Jumoke Oladapo, Ivylaw Law Office, LLC
AILA D.C. 2014 CONFERENCE
Introduction
What is a Particular Social Group
(PSG)?
Evolution of PSG Legal Standard
Matter of Acosta: common immutable
characteristic
Matter of C-A-; Matter of A-M-E-&
J-G-U-: particularity and social
visibility (new prongs of PSG analysis)
Evolution of PSG Legal Standard
Matter of S-E-G & Matter of
E-A-G-:
Social visibility and particularity now
required
Evolution of PSG Legal Standard
Circuit Courts Respond
1st, 2nd, 5th, 10th, 11th: Defer in whole or part
Ahmed v. Holder, 611 F.3d 90 (1st Cir. 2010)
Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007)
Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir.
2012)
Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir.
2011)
Velasquez-Otero v. U.S. Atty. Gen., 456 Fed. Appx.
822 (11th Cir. 2012) (unpublished)
Evolution of PSG Legal Standard
Circuit Courts Respond
3rd, 7th, & 9th: Reject Social Visibility
and Particularity in whole or part
Valdiviezo-Galdamez v. Atty. Gen., 663
F.3d 582 (3d Cir. 2011)
Evolution of PSG Legal Standard
Circuit Courts Respond
3rd, 7th, & 9th: Reject Social Visibility and
Particularity in whole or part
Gatimi v Holder, 578 F.3d 611 (7th Cir. 2009)
Benitez-Ramos v. Holder, 589 F.3d 426 (7th
Cir. 2009)
Cece v. Holder, 733 F.3d 662 (7th Cir. 2013)
Evolution of PSG Legal Standard
Circuit Courts Respond
3rd, 7th, & 9th: Reject Social Visibility
and Particularity in whole or part
Henriquez-Rivas v. Holder, 707 F.3d
1081 (9th Cir. 2013)
Evolution of PSG Legal Standard
Matter of M-E-V-G- &
Matter of W-G-RSocial Visibility now Social Distinction
Reaffirmed 3-part test
Evolution of PSG Legal Standard
3-Part Test for PSG Analysis (2014)
1. Common, immutable characteristic
2. Social distinction
3. Particularity
Current Trends in PSG Claims
Analysis for a PSG Claim
1. Identify a cognizable group under 3part test
2. Prove membership in the group
3. Establish nexus between
persecution and membership in group
Analysis for a PSG Claim
Identify a cognizable group under 3part test
Challenges:
1. Increased Evidentiary Burden
2. PSG no longer parallel with other 4
grounds
3. Troubling particularity dicta
Analysis for a PSG Claim
Identify a cognizable group under 3part test
Challenges Cont’d:
4. Homogeneity of groups
5. Size of groups
6. Is meeting both social distinction
and particularity possible?
Analysis for a PSG Claim
Prove membership in the group
Analysis for a PSG Claim
Nexus: establish past persecution
or a well-founded fear of
persecution on account of that
membership
Analysis for a PSG Claim
Nexus
“One Central Reason”
Direct or Circumstantial Evidence
PSG “Hot Topics”
Gang-based PSG Claims
Types of Gang-based claims –
What has worked and what
hasn’t?
Types of Gang-based claims:
Resistance to Recruitment
Witness or informant
Family membership
Gender
Former Gang membership
Gang-based PSG claims: Other
Challenges
Nexus
Internal Relocation
Gender-based PSG claims
What has worked and what
hasn’t?
Types of Gender-based PSG claims
FGM/FGC
Matter of Kasinga
Forced Marriage
Repressive social norms/Honor
Killings
Sex trafficking and forced prostitution
Rape and sexual violence
Femicide
Types of Gender-based PSG claims
Domestic Violence
Matter of R-A- & Matter of L-RMatter of A-R-C-G-
Gender-based PSG claims
Other Challenges
Nexus
Government unable/unwilling to
protect
Internal Relocation
Practice Pointers for PSG Claims
Practice Pointers
Client should understand basis of
claim
Other bases: FGM, DV, Prior harm
as basis for “other serious harm”
claim (8 CFR 208.13(b)(1)(iii)(B) or
humanitarian asylum claim
8 C.F.R. 208.13(b)(1)(iii)(A)
Practice Pointers
Client should understand basis of
claim
Ask about FGM, DV at beginning
Explain why you are asking about
sensitive issues
Practice Pointers
Argue for case-by-case determination
based on:
- specific facts
- evidence of record
Be creative in formulating PSG
Practice Pointers
Argue for case-by-case determination
Matter of E-F-H-L-: Alien entitled to
present his case even if IJ/AO believes
proposed PSG does not qualify
Practice Pointers
Matter of Fefe: IJ cannot rely
exclusively on I-589 to make decision
Use a PSG that has been used before
Practice Pointers
Use published decisions
Use decisions from your Circuit/other
Circuits
Use unpublished decisions from list
serves or Lexis/Westlaw
Practice Pointers
Present multiple PSGs
1. Acosta Group
2. M-E-V-G- and W-G-R- Group
Tip: Inclusion of weak claim with
strong one may weaken strong claim
Practice Pointers
Establish your record with Evidence
Practice Pointers
Establishing your record
1. Testimony and Affidavits
2. Use Experts for context
3. Documentary Evidence
Practice Pointers
Testimony and Affidavits
Get to the point!
The Goal: win asylum (not tell entire
life story)
Evidence supportive of claim: prove
applicant’s statements
Practice Pointers
Using Experts
Essential to provide proper context
for PSG when claim cannot be
documented with internet
research/precedent
Written report or in-person testimony
Practice Pointers
Use Experts to Establish
- Socio-political context
-Social distinction and particularity
-Nexus
-Ability/willingness of state to protect
-Relocation options
Practice Pointers
Other Documentary Evidence
(background information)
Passport; marriage certificates;
photos; School and work records &
evidence of missed work or school;
Birth certificates of children;
awards & certificates
Practice Pointers
- Don’t forget other protected
grounds
- Don’t forget about CAT – explain
pros/cons
-Brief it!! Remember IJs and AOs
know basics
Practice Pointers
Litigate like you may have to appeal
-Challenge BIA’s additional
requirements to preserve issue
-Attempt to meet additional
requirements
Practice Pointers On Appeal
- Challenge the BIA
-Get help from the experts!
-Don’t go it alone!
-Coordinate with other litigators: AILA,
AIC, NGOs, law schools
Thanks for Attending!!