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In the Supreme Court of the United States
March Term 2015
Miguel Rodriguez, Petitioner,
v.
United States of America, Respondent.
On Writ of Certiorari to the Supreme Court of the United States
Court of Appeals for the Fourteenth Circuit
Brief for petitioner
Team P4
1
QUESTIONS PRESENTED
1. Whether Petitioner’s former membership as a teenager with the PR25 gang places him
under a protected particular social group for asylum purposes; and
2. Whether Petitioner’s participation in vehicle burning and rock-throwing to protest a new
government policy constitutes a commission of a serious nonpolitical crime barring his asylum
application pursuant to 8 U. S. C. § 1158(b)(2)(A)(iii).
2
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................................... 1
TABLE OF CONTENTS ................................................................................................................ 2
TABLE OF AUTHORITIES .......................................................................................................... 3
OPINIONS BELOW ....................................................................................................................... 4
JURISDICTIONAL STATEMENT ............................................................................................... 4
STATUTORY PROVISIONS INVOLVED................................................................................... 5
STANDARD OF REVIEW ............................................................................................................ 6
STATEMENT OF THE CASE ....................................................................................................... 7
SUMMARY OF THE ARGUMENT ............................................................................................. 9
ARGUMENT ................................................................................................................................ 12
I. MR. RODRIGUEZ’S FORMER MEMBERSHIP WITH THE PR25 GANG AS A
TEENAGER SATISFIES THE PARTICULAR SOCIAL GROUP REQUIREMENT FOR
ASYLUM PURPOSES. ............................................................................................................ 12
A. The Court of Appeals Erred in Applying the BIA’s Test for a Particular Social Group and
Should Have Used the Acosta Test Instead. .......................................................................... 13
B. Mr. Rodriguez Would Qualify for Asylum Under the Acosta Test Because Former
Membership in the PR25 Gang as a Teenager Would Constitute an Immutable
Characteristic. ........................................................................................................................ 17
C. Mr. Rodriguez Would Still Qualify for Asylum Under the BIA’s New Test. .................. 20
II. THE COURT OF APPEALS ERRED IN FINDING THAT THERE ARE SERIOUS
REASONS TO BELIEVE THAT MR. RODRIGUEZ HAS COMMITTED A “SERIOUS
NONPOLITICAL CRIME” UNDER 8 U.S.C. § 1158(B)(2)(A)(III). ..................................... 23
A. Mr. Rodriguez Has Not Committed a “Serious Nonpolitical Crime” Because None of Mr.
Rodriguez’s Acts Constitute a “Serious” Crime. ................................................................... 23
B. Even if Mr. Rodriguez’s Crimes Were “Serious”, He Has Not Committed a Serious
Nonpolitical Crime Because the Criminal Nature of His Acts Is Outweighed By Their
Political Nature. ..................................................................................................................... 32
C. Mr. Rodriguez Has Not Committed a Serious Nonpolitical Crime Because Applicants for
Asylum in His Situation Are Not the Type of Applicant the “Serious Nonpolitical Crime”
Exception Was Enacted to Exclude. ...................................................................................... 35
CONCLUSION ............................................................................................................................. 36
3
TABLE OF AUTHORITIES
Cases Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007)....................................................................... 18
Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009) ............................................................... 18
Berhane v. Holder, 606 F.3d 819 (6th Cir. 2010) ................................................................... 30, 35
Cantarero v. Holder, 734 F.3d 82 (1st Cir. 2013) .......................................................................... 6
Castillo-Arias v. United States AG, 446 F.3d 1190 (11th Cir. 2006)............................................ 13
Chay-Velasquez v. Ashcroft, 367 F.3d 751 (8th Cir. 2004) .......................................................... 26
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ........................... 13
Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002) ........................................................................ passim
Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) .................................................................................... 12
Gallagher v. I.N.S., No. 85-3203, 1986 WL 16657 (6th Cir. Mar. 31, 1986) .............................. 28
Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009) ........................................................................... 18
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) ......................................................... 21
Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) .......................................................... 18
I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (1999) ...................................................................... 26, 32
Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir.2003)........................................................................ 21
Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014) ........................................................................ 17
Matter of Acosta, 19 I. & N. Dec. 211, (BIA 1985) .............................................................. passim
Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69 (BIA 2007) ...................................................... 20
Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014) ................................................................. 14
Matter of Ballester-Garcia, 17 I. & N. Dec. 592 (BIA 1980) .................................... 23, 24, 25, 26
Matter of E-A-, 26 I. & N. Dec. 1 (BIA 2012) ....................................................................... passim
Matter of Fuentes, 19 I. & N. Dec. 658 (BIA 1988)............................................................... 15, 17
Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996) .................................................................... 15
Matter of McMullen, 19 I. & N. Dec. 90 (BIA 1984) ............................................................. 23, 32
Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014) .......................................................... passim
Matter of Rodriguez-Palma, 17 I. & N. Dec. 465 (BIA 1980) ............................................... 26, 35
Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (BIA 1990) ........................................................ 15
Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014)............................................................... 20, 21
McMullen v. I.N.S., 788 F.2d 591 (9th Cir. 1986) .................................................................. 32, 35
Rivera Barrientos v. Holder, 658 F.3d 1222 (10th Cir. 2011)...................................................... 20
U.S. v. Farish, 535 F.3d 815 (8th Cir. 2008) .......................................................................... 24, 25
Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010) .......................................................... 18, 28
Valdiviezo-Galdamez v. AG of the United States, 663 F.3d 582 (3d Cir. 2011) ........................... 14
Statutes 8 U.S.C. § 1158(b)(2)(A)(iii) (2014) ........................................................................................ 5, 23
ARK. CODE ANN. § 5-38-302 (2015) ............................................................................................. 27
DEL. CODE ANN. tit. 11, § 804 (2015)........................................................................................... 27
INA § 101(a)(42)(A) (2014) ................................................................................................. 5, 9, 12
MODEL PENAL CODE §2.09 (2015) ............................................................................................... 28
MODEL PENAL CODE §220.1 (2015) ............................................................................................. 27
S.D. CODIFIED LAWS § 22-33-9.3 (2014) ...................................................................................... 27
4
Other Authorities 6A C.J.S. Assault § 106 (2014) ..................................................................................................... 29
R. Millar, W. H. Rutherford, S. Johnston & V. J. Malhotra, Injuries caused by rubber bullets: A
report on 90 patients, BRITISH JOURNAL OF SURGERY, June 1975, at 480 ................................ 30
U. N. High Comm’r for Refugees, Guidelines on the Application of the Exclusion Clauses
(Article 1(F) of the 1951 Convention), ¶2 (Sept. 4, 2003) ........................................................ 36
OPINIONS BELOW
On June 6, 2008, Mr. Rodriguez filed for asylum based on his fear of persecution by the
PR25 if he returned to Honduron. An immigration judge ordered Mr. Rodriguez removable and
denied his application for asylum.
Mr. Rodriguez appealed the denial of his asylum application. The BIA affirmed the IJ’s
decision on the ground that “former gang membership” is not a protected particular social group.
Further, the BIA held that Mr. Rodriguez’s involvement in the death penalty protest before
coming to the United States constituted a nonpolitical serious crime and barred his asylum
application.
On appeal, Mr. Rodriguez argued that his former gang membership is protected as a
particular social group and that his protest does not constitute a serious nonpolitical crime.
The U.S. Court of Appeals for the Fourteenth Circuit affirmed the BIA’s decision.
JURISDICTIONAL STATEMENT
A statement of jurisdiction has been omitted in accordance with the rules of the U.C. Davis
School of Law Asylum and Refugee National Moot Court Competition.
5
STATUTORY PROVISIONS INVOLVED
8 U.S.C. § 1158 provides in pertinent part:
(a)(1) In general
Any alien who is physically present in the United States or who arrives in the United States
(whether or not at a designated port of arrival and including an alien who is brought to the
United States after having been interdicted in international or United States waters),
irrespective or such alien’s status, may apply for asylum in accordance with this section or,
where applicable, section 1225(b) of this title.
*****
(b)(2) Exceptions
(A) In general
Paragraph (1) shall not apply to an alien if the Attorney General determines that—
*****
(iii) there are serious reasons for believing that the alien has committed a serious
nonpolitical crime outside the United States prior to the arrival of the alien in the United
States.
INA § 101(a)(42)(A) provides in pertinent part:
The term "refugee" means:
(A) any person who is outside any country of such person's nationality or, in the case of a
person having no nationality, is outside any country in which such person last habitually resided,
and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself
6
of the protection of, that country because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political
opinion.
STANDARD OF REVIEW
Whether Mr. Rodriguez belongs to a particular social group is a legal determination
which receives de novo review. Cantarero v. Holder, 734 F.3d 82, 84 (1st Cir. 2013). The BIA’s
finding that Mr. Rodriguez committed a serious nonpolitical crime is a finding of fact that
receives review under the substantial evidence test. See Efe v. Ashcroft, 293 F.3d 899 (5th Cir.
2002). Under substantial evidence review, “the Board’s factual determinations are only
reversible if this court finds that the evidence compels a contrary conclusion.” Id. at 905.
7
STATEMENT OF THE CASE
Miguel Rodriguez was born and raised in Honduron, a developing country in South
America that “has consistently endured much social strife and political instability.” R. at 5. Mr.
Rodriguez grew up under the constant threat of violence from local gangs. R. at 5. These gangs
would pressure Mr. Rodriguez to join them and frequently beat him when he refused. R. at 5.
When he was only 14, Mr. Rodriguez joined a local gang as a means to obtain protection from
the constant threats and beatings. R. at 5. He did not realize that he had joined PR25, a
transnational criminal organization “notorious for their use of violence and their fatal
retributions.” R. at 5. Two years later, Mr. Rodriguez had to obtain a tattoo that established his
membership in the PR25 gang. R. at 5.
At age 17, Mr. Rodriguez took part in a protest against the government’s legislation
reinstating the death penalty. R. at 5. He did so in part because of his personal political belief that
the death penalty is an ineffective way to combat criminal activities, and in part because the
PR25 threatened to beat him and his younger sister if he did not participate in the protest. R. at 6.
He was afraid of the PR25’s threats because “previous disobediences had resulted in horrific
retributions from the PR25 organization.” R. at 6.
The protest against the government’s reinstatement of the death penalty took place about
two blocks from City Hall. R. at 5. As part of the protest, Mr. Rodriguez and other members of
the PR25 “burned an already obsolete vehicle owned by one of the members.” R. at 5. Mr.
Rodriguez insisted that the group take safety precautions when burning the vehicle. R. at 6. He
“made sure that no easily explosive parts remained in the car, burned the vehicle near a fire
hydrant and away from civilian clustered areas, and kept fire extinguishers near the scene.” R. at
6. While burning the vehicle, “the group kept the fire under control.” R. at 5-6. Because of the
8
safety measures that Mr. Rodriguez insisted on, “no one was injured from the vehicle burning.
Nor did any civilians suffer unnecessary financial damages.” R. at 6.
“As part of the government’s attempt to suppress the protest, police officers used shields
and rubber bullets to disperse the crowds.” R. at 6. In order to defend himself against the police
officers’ use of force, Mr. Rodriguez threw rocks at the officers. R. at 6.
Ultimately Mr. Rodriguez decided to renounce his membership with the PR25 because he
did not wish engage in illegal activities. R. at 6. In retribution, “the gang beat him up and
threatened to kill his family.” R. at 6. These threats took the form of dead animals at the doorstep
of his family’s home and threats written on the walls of his house. R. at 6. In fear of his own well
being and that of his family, Mr. Rodriguez fled to the United States with his sister. R. at 6. They
entered the U.S. on July 8, 2007 with fake passports. R. at 7.
Although Mr. Rodriguez has not engaged in any criminal activities since leaving the
PR25 gang, he was arrested on February 9, 2008 for driving without a license. R. at 7. ICE
started removal proceedings for illegally entering the U.S. with a fake passport based on 8 U.S.C.
§ 1325 (a). R. at 7. On June 6, 2008, Mr. Rodriguez filed for asylum on the grounds that his
former membership with the PR25 gang places him at risk of future persecution. R. at 7.
In order to support his case, Mr. Rodriguez submitted the testimony of a
Honduron police officer who said that PR25 aggressively sought to punish those who left
the gang. R. at 7. He also submitted testimony from Honduron citizens who admitted that
the society of Honduron “is reluctant to protect those who left the gang.” R. at 7. The
gang has connections in the Honduron government through which they could arrest Mr.
Rodriguez. R. at 6. Therefore, the government of Honduron would not be able to protect
Mr. Rodriguez from gang persecution. The gang members “force local citizens to report
9
the former gang members’ location and forbid them to assist the former member in any
way.” R. at 8. As a result, the citizens of Honduron avoid contact with anyone who was a
former member of the PR25 gang and employers would deny jobs to any former gang
member. R. at 8. The citizens of Honduron would easily identity Mr. Rodriguez’s
association with the gang because was forced to get a characteristic gang tattoo. R. at 8.
SUMMARY OF THE ARGUMENT
I. The Court of Appeals for the Fourteenth Circuit erred in giving Chevron deference to
the Board of Immigration Appeals’ interpretation of a particular social group and finding that
Mr. Rodriguez was not a member of a particular social group. Asylum seekers must prove that
they fear persecution on account of “race, religion, nationality, membership in a particular social
group, or political opinion.” INA § 101(a)(42)(A) (2014). In order to define a particular social
group, the Court of Appeals should have applied the Acosta test instead of the BIA’s new
statutory interpretation which requires that a group establish “(1) a common immutable
characteristic, (2) particularity, and (3) socially distinct within the society in question.” Matter of
M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014). The new requirements of particularity and
social distinction are unreasonable because they have created significant confusion in circuit
courts as they struggle to distinguish between the two. These requirements also place an
unreasonable burden on asylum seekers who must now provide a more complex definition of
their particular social group. Therefore, this court should apply the Acosta test, which is a
reasonable test that allows sufficient flexibility in examining social groups while maintaining
asylum as an avenue only for those legitimately persecuted due to a common characteristic that
they cannot change. Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985). Under the Acosta
10
test, this court would find that Mr. Rodriguez possesses the element of immutability because he
cannot relinquish his experiences as a former teenage member of the PR25 gang. Even when
examined under the BIA’s new test, the facts of this case prove that Mr. Rodriguez would still
qualify for asylum. The characteristics of teenager and former gang member sufficiently narrow
down the group and provide a specific category of persecuted persons under which Mr.
Rodriguez falls. At the same time, these characteristics provide an objective benchmark through
which to test whether future asylum seekers fall under Mr. Rodriguez’s group. Mr. Rodriguez
also meets the social visibility requirement because citizens of Honduron recognize former gang
members and actively distance themselves from them. Although the BIA’s new standard
contains two unreasonable prongs, Mr. Rodriguez does meet all three requirements and therefore
qualifies as a member of a particular social group.
II. The Court of Appeals erred in failing to find substantial evidence to compel the
conclusion that Mr. Rodriguez did not commit a serious nonpolitical crime. The actions that Mr.
Rodriguez took on the day of the death penalty protest in Honduron do not constitute a “serious”
crime. He and other members of the PR25 burned a vehicle that belonged to another member of
the PR25. They did so in a safe and carefully controlled environment. Because no person or
piece of property was harmed or even placed at risk of harm, this cannot be considered a serious
crime. Furthermore, when considered in light of American criminal law, this action should be
considered one taken while under duress, since Mr. Rodriguez participated in the protest due to
threats from the notoriously violent PR25. Therefore, this crime cannot be considered serious.
Mr. Rodriguez then proceeded to throw stones at police officers who were shooting at the
protesters with rubber bullets. This action caused little if any harm, and it was done in self-
defense against the violent actions of the police officers, so it also should not be considered a
11
serious crime. Since Mr. Rodriguez did not commit a serious crime, he cannot be guilty of a
serious nonpolitical crime.
Even if Mr. Rodriguez’s actions did constitute a serious crime, he did not commit a
serious nonpolitical crime because his crime was political, meaning that the political nature of
his actions outweighed their criminal nature. Burning the vehicle was a political act because it
was done as part of a protest in front of City Hall to convince the government to repeal the death
penalty. Throwing rocks at police officers was also political because it resulted from the initial
protest and the government’s method of responding to the protest. Because Mr. Rodriguez’s
actions were not directed toward civilians, but toward City Hall, the police officers, and the
government as a whole, his crimes should be considered more political than criminal, meaning
that they are not serious nonpolitical crimes.
Even if the court does consider Mr. Rodriguez’s crimes serious and nonpolitical, they are
not the type of crimes the law was intended to encompass. The serious nonpolitical crime
exception is meant to prevent bad people from coming into the United States and avoiding the
repercussions of the crimes they committed in the country that they ran away from. This is not
why Mr. Rodriguez came to the United States. He is not a fugitive from justice, and he is not a
serious criminal who we wouldn’t want to live amongst us as a citizen. The statute was not
intended to bar asylum applicants whose crimes were committed under such specific
circumstances as Mr. Rodriguez’s were.
Therefore, Mr. Rodriguez’s actions compel the conclusion that there are not serious
reasons for believing that he has committed serious nonpolitical crimes.
12
ARGUMENT
I. MR. RODRIGUEZ’S FORMER MEMBERSHIP WITH THE PR25 GANG AS A
TEENAGER SATISFIES THE PARTICULAR SOCIAL GROUP REQUIREMENT FOR
ASYLUM PURPOSES.
A person fleeing from persecution qualifies for asylum if they can prove that they would
be unable to find protection in their country of origin due to their “race, religion, nationality,
membership in a particular social group, or political opinion.” INA § 101(a)(42)(A) (2014). The
statute does not further define what constitutes “membership in a particular social group.” Mr.
Rodriguez seeks asylum on account of belonging to the social group of people with former
membership in the PR25 gang as a teenagers. Congress did not explain the intent behind this
phrase, which has led to much confusion among courts. See Fatin v. INS, 12 F.3d 1233 (3d Cir.
1993). The BIA first interpreted this requirement as membership in a group in which all of its
members share an innate characteristic. Matter of Acosta, 19 I. & N. Dec. at 233. This
interpretation followed the principle of ejusdem generis, by which items in a list should be given
consistent interpretations. Id. Therefore, a particular social group would have to be defined by an
“immutable characteristic” just as the other categories (race, religion, etc.) consist of
fundamental characteristics that an individual cannot or should not be required to change. Id.
This creates a criterion for asylum that allows judges certain flexibility as they weigh
facts in a case per case basis. At the same time, the immutable characteristic provides a specific
test through which to grant asylum only to those unable to avoid persecution. Id. at 234. In
Matter of Acosta, the respondent did not convince the court he belonged to a particular social
group, namely that of taxi drivers in El Salvador, because he could have left the group at any
point. The characteristic of driving a taxi was neither inherent to him nor strictly necessary. Id
13
Under the Acosta test, Mr. Rodriguez would qualify for asylum because his group meets
the immutability the requirement. Instead, the Court of Appeals chose to apply the BIA’s new
test for a particular social group, which presents an unreasonable standard. Nevertheless, Mr.
Rodriguez should still qualify for asylum because his particular social group meets all three
requirements of the BIA’s new test.
A. The Court of Appeals Erred in Applying the BIA’s Test for a Particular Social
Group and Should Have Used the Acosta Test Instead.
The BIA has the authority to redefine or create additional factors for its interpretation of a
particular social group as long as they are reasonable. Castillo-Arias v. United States AG, 446
F.3d 1190, 1197 (11th Cir. 2006). While the Court of Appeals discussed the immutable
requirement, they erred in applying the BIA’s two new requirements of particularity and social
distinction because these requirements are unreasonable. Consequently, the BIA’s interpretation
of a particular social group should not receive Chevron deference because it is unreasonable. See
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).
1. The new requirements of particularity and social distinction have not only created
confusion in the judicial system but they also contradict BIA precedent.
The requirement of particularity stems from a concern that social groups could be too
numerous or broad. Id. at 1198. However, the Acosta test already provides a reasonable measure
to avoid broad groups by requiring that asylum seekers demonstrate that members of their group
share an immutable characteristic. Only those targeted because of that common characteristic
would gain asylum through the Acosta test. Although this could result in groups that encompass
large numbers of people, numerosity should not factor in the determination of asylum. Certainly
14
the BIA would grant asylum to an oppressed religious group within a country, regardless of their
numbers. In addition, the prong of social distinction requires an asylum applicant to prove that
the society from which they originate perceives a given social group as significantly different.
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 243 (BIA 2014). The inquiry as to whether a group
has traits that a society would distinguish seems to almost blend with finding particularity by
creating well-defined categories or boundaries. Valdiviezo-Galdamez v. AG of the United States,
663 F.3d 582, 608 (3d Cir. 2011).
It seems unreasonable and almost contradictory to require a group to have narrowly
defined boundaries while also requiring the society at large to recognize the given group. This
could pose a problem because, in order to ensure their safety, certain persecuted groups have an
incentive to make sure that a member of society would not be able to recognize their group. Id. at
607. Even if a persecuted group did not attempt to hide itself, society at large may have no
knowledge of their existence or, much less, their persecution. For example, if the newly
established government of a hypothetical country held a grudge against former customs officers,
they could conceivably persecute this group without the knowledge of society. Former customs
officers would be aware that the government seeks to punish them but ordinary citizens would
have no reason to view their group as distinct within their society. Under the social distinction
requirement, a group persecuted by their government would not qualify for asylum until the
society at large recognizes this persecution. Matter of M-E-V-G-, 26 I. & N. Dec. at 243. The
BIA recently found that married women form Guatemala who could not leave their relationships
would qualify as a particular social group. See Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA
2014). The prevalence of misogyny and domestic violence makes married women a
distinguishable group within Guatemalan society. Id. at 394. Women facing the exact same
15
persecution in a different country where their society would not see them as different would not
qualify for asylum. This arbitrary notion of social distinction would preclude an individual from
seeking asylum unless their society viewed them as different, which in itself invites subjective
interpretation. Certainly Congress did not intend for individuals facing persecution to have to
endure and wait until their society become aware of their particular social group before these
individuals could seek asylum.
Applying the requirement of social distinction would create discrepancies with prior BIA
decisions where groups lacking visibility were granted asylum. For example, the BIA found that
women from a particular tribe who had not yet undergone female genital mutilation would fall
under a particular social group. Matter of Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996). These
women had a credible fear of persecution but the BIA did not provide any convincing reason as
to why their society would identify them as different simply because they hold a different
opinion with regards to female genital mutilation. The Acosta test would grant these women
asylum as members of a group that share an immutable characteristic, while the new BIA
standard of social distinction would make it extremely difficult for persons in a similar group to
gain asylum. The BIA also found that former police officers from El Salvador could fall under a
particular social group even though they lacked visibility because of their shared immutable
characteristic that would subject them to persecution. Matter of Fuentes, 19 I. & N. Dec. 658,
662 (BIA 1988). Once again, members of a given society would not necessarily distinguish a
former police officer from any other citizen and yet the new BIA test would make asylum
contingent upon this very requirement.
The BIA has also held that homosexuals in Cuba qualified as a particular social group.
Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (BIA 1990). The BIA clarified, in Matter of
16
M-E-V-G-, that the Cuban government kept files on homosexuals and persecuted them because
of this label. The BIA found that Cuban society viewed and treated homosexuals differently
because they belonged to this particular social group. Matter of M-E-V-G-, 26 I. & N. Dec. at
245. Although Cuban homosexuals meet the BIA’s new requirement of social distinction, a
nearly identical group could easily fail the test. For example, if the government of a country kept
track of and persecuted homosexuals, this group would not qualify for asylum unless their
society itself perceived them as different. The social distinction requirement thus creates an
unreasonable distinction between these two groups because it would only grant asylum to one of
them, in spite of equal degrees of persecution. While the BIA’s new test would create confusion
and deny asylum to groups that have been protected in the past, the Acosta test would avoid these
pitfalls by focusing solely on an applicant’s immutable characteristic and therefore providing a
reasonable standard for courts to follow.
2. These new requirements would create unreasonable hurdles for asylum seekers.
The additional requirements of social distinction and particularity create unreasonable
hurdles that particularly complicate the process for pro se asylum seekers. Instead of simply
proving their persecution and membership in a group with a shared immutable characteristic,
asylum seekers must now also develop complex legal arguments that prove all three prongs of
the test as well nuanced categories that narrow down groups. After being victims of persecution,
many asylum seekers arrive in the U.S. with few possessions and much less wealth. If some U.S.
Court of Appeals judges have trouble differentiating between particularity and social distinction,
then how high would be the burden for pro se asylum seekers, especially those who do not even
understand the English language? In this context, the legal system may encounter many victims
17
of persecution who do not have the means to procure a legal counsel and may lack the skills or
education to craft a legal argument that claims asylum by meeting not only the immutability
requirement but also particularity and social distinction. Especially with regards to this last
prong, asylum seekers would need to provide sufficient analysis and evidence that the society in
question distinguishes them as part of a separate group of people. Even with legal counsel,
meeting the social distinction requirement creates an unreasonable hurdle by having to procure
far more evidence than originally needed under the Acosta test. Although Mr. Rodriguez has
managed to provide evidence that he meets all three prongs of the BIA’s new test, this court
should nevertheless reject the test because of the unreasonable hurdles that it creates for future
asylum applicants.
B. Mr. Rodriguez Would Qualify for Asylum Under the Acosta Test Because Former
Membership in the PR25 Gang as a Teenager Would Constitute an Immutable
Characteristic.
The Court of Appeals erred in finding that Mr. Rodriguez did not fall under a social
group with an immutable characteristic. Just as a police officer in El Salvador cannot undo his
previous employment, Mr. Rodriguez will forever carry the burden of his past experiences. See
Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988). A group of former gang members
“share a common past experience” for which they would be persecuted. Matter of Acosta, 19 I.
& N. Dec. at 233. The Court of Appeals conceded that several circuits have already found former
gang membership to constitute an immutable characteristic. More specifically, former
membership in the MS-13, an international gang with a long history of drug trafficking and
persecution, would constitute an immutable characteristic. Martinez v. Holder, 740 F.3d 902, 911
(4th Cir. 2014). Especially given that a former gang member could never relinquish this
18
characteristic, they would fall under a particular social group. Benitez Ramos v. Holder, 589 F.3d
426, 429 (7th Cir. 2009). Additionally, the Sixth Circuit has found that a former gang member,
even someone at the bottom of the gang’s hierarchy, would possess an immutable characteristic
due to his former membership. Urbina-Mejia v. Holder, 597 F.3d 360, 366 (6th Cir. 2010). In
other words, the level of involvement in a gang would have no bearing on a person possessing
the immutable characteristic of former gang membership. The Seventh Circuit also found that a
former member of a violent organization in Kenya would fall under a particular social group,
which bears a striking resemblance to Mr. Rodriguez past membership in the violent PR25 gang.
Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir. 2009).
The majority deviated from these cases in fear of granting asylum to criminals who
would in turn become a danger to our society. This concern would essentially create an
exemption from asylum from groups in which individuals engaged in violent activities. Arteaga
v. Mukasey, 511 F.3d 940, 946 (9th Cir. 2007). The court in Arteaga worried that gang members
would use asylum as a means of relocating to the United States and continuing to engage in
illegal activities. Id. The Court of Appeals echoed this concern by pointing to the voluntary
association with gangs as the crucial argument why these applicants should be exempt from
asylum. R. at 11. However, Mr. Rodriguez renounced his membership in PR25 long ago and his
clean record in the United States should put aside any fears that he could present a threat to our
society. R. at 7. Furthermore, courts have allowed the immutable characteristic requirement to
include instances in which the applicant engaged in “voluntary association” as long as that
association was crucial to the individual’s dignity. See Hernandez-Montiel v. INS, 225 F.3d
1084, 1092-93 (9th Cir. 2000). Mr. Rodriguez did not wish to become involved in the PR25
gang; he joined for the sake of protecting himself and his family. He faced constant threats and
19
beatings and as a teenager, he had no choice but to join a local gang. It was only after he joined
that he realized the connection between the local gang and PR25. R. at 5. Therefore, his
association with the PR25 was the result of coercion from other gangs and an attempt to subsist
in a violent society. While Congress certainly did not intend for criminals to join gangs and
relocate to the U.S. with ease, it seems reasonable that they would want to protect victims of
gang persecution such as children that were forced to join the ranks of the PR25 gang. These
victims such as Mr. Rodriguez should have an incentive to defect at the first available
opportunity and seek asylum elsewhere.
In the country of Honduron, the PR25 gang controls not only local gangs but also
maintains a significant influence on the government of Honduron. R. at 6. Mr. Rodriguez has
provided evidence that the gang pursues former members in order to intimidate and physically
harm them. R. at 8. This illustrates that the PR25 would certainly consider Mr. Rodriguez’s
former membership as immutable. Even long after members leave the gang, the PR25 uses fear
and coercion to get local citizens to divulge the location of former gang members. R. at 8.
Through these methods, the PR25 warns not only former members but also citizens of Honduron
that gang membership creates a life long trait that will always haunt them. In spite of being
punished, Mr. Rodriguez would have no way to rid himself of his former status, except by
rejoining the gang. These facts, as well as the precedent, corroborate Mr. Rodriguez’s claim that
former membership with the PR25 gang, as a teenager would constitute an immutable
characteristic. Following the Acosta test, this immutable characteristic would make Mr.
Rodriguez eligible for asylum as a member of a particular social group.
20
C. Mr. Rodriguez Would Still Qualify for Asylum Under the BIA’s New Test.
Although the new requirements of particularity and social distinction are unreasonable,
Mr. Rodriguez meets both prongs. The objective categories of teenager and former gang member
create a specific group to which Mr. Rodriguez belongs. The society of Honduron distinguishes
and avoids former gang members, which satisfies the social distinction requirement.
1. Former membership in PR25 as a teenager meets the particularity requirement.
The Court of Appeals found that “people who had a former membership with the PR25
gang as teenagers” would not qualify as a distinct social group. This requirement mostly seeks
that groups have well-defined boundaries as opposed to broad categories of individuals. For
example, wealthy Guatemalans would not constitute a particular social group unless they had
other defining characteristics. Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 76 (BIA 2007).
The category of wealthy individuals relies on a highly subjective category because even within
Guatemalan society, many people would disagree as to who qualifies as wealthy. Id. By contrast,
Mr. Rodriguez has provided two objective categories through which to view his particular social
group. The record leaves no doubt that Mr. Rodriguez is a former member of PR25 and that this
experience occurred when he was a teenager. R. at 5.
The Court of Appeals deferred to the BIA’s interpretation of particularity as a “discrete
class of persons.” Matter of M-E-V-G-, 26 I. & N. Dec. at 239. The BIA has previously provided
age as an example of a characteristic that could make a group of former gang members
sufficiently discrete. Matter of W-G-R-, 26 I. & N. Dec. 208, 221 (BIA 2014). The Tenth Circuit
has found that young people who resisted gang membership would qualify as a particular social
group. Rivera Barrientos v. Holder, 658 F.3d 1222, 1231 (10th Cir. 2011). The further division
21
of the group as “young persons” created a narrow enough category that would by no means
encompass all persons that were persecuted by gangs. Id. Likewise, Mr. Rodriguez falls under
the distinct group of teenagers that were members of the PR25 gang.
The category of age has a special significance because of the role of minors in our
society. In countries where gangs have significant power, teenagers are particularly susceptible
to gang violence and coercion USAID, Central America and Mexico Gang Assessment Report,
April 2006, at 15. Therefore, they represent a specific sector of the population that requires care
and protection from adults. As a 14 year old without a father, Mr. Rodriguez would have had a
difficult time relocating and as the record indicates, he could not escape the targeted persecution
of violent gangs. R. at 5. In Lukwago, a former child soldier was found to belong to a particular
social group. Lukwago v. Ashcroft, 329 F.3d 157, 178 (3d Cir. 2003). The mere idea of teenagers
being forced to wage war or join gangs certainly shocks the conscience of most ordinary persons.
2. Former membership in PR25 as a teenager would qualify as membership in a
socially distinct group.
The BIA has clarified that social visibility refers to how a society perceives a group,
instead of some literally visual characteristic. Henriquez-Rivas v. Holder, 707 F.3d 1081, 1085
(9th Cir. 2013). The BIA has further explained that this requirement refers to visibility from the
point of view of the society in question and not the persecutors. Matter of M-E-V-G-, 26 I. & N.
Dec. at 240. Even in cases where the society would not normally interact with a particular group,
if they became aware of the group, they would recognize the group’s common characteristic.
Matter of W-G-R-, 26 I. & N. Dec. at 217. The Court of Appeals erred in concluding that the
society of Honduron would not perceive former teenage members of PR25 as a distinct social
group. They focused on the fact that Mr. Rodriguez did not distinguish between the perception of
22
former PR25 members in Honduron and former teenage members of PR25. R. at 12. The
distinction is an arbitrary one that the society of Honduron need not necessarily make. Mr.
Rodriguez has established that the society avoids contact with former gang members. R. at 8.
Beyond recognizing Mr. Rodriguez’s tattoos, citizens of Honduron would not accept former
gang members in their society because of their previous affiliation. R. at 8. This means the
Honduran society differentiates between current and former gang members, whether by visual
characteristics or through information provided by PR25. Therefore, by belonging to the larger
category of former gang members, Mr. Rodriguez would already fulfill the social distinction
requirement. Although Mr. Rodriguez left the PR25 gang and was a victim of their violence,
employers of Honduron would not hire Mr. Rodriguez due to his former membership in the
PR25 gang. R. at 8. Even if Mr. Rodriguez explained his circumstances and demonstrated, as
shown in the record, that he has not engaged in any illegal activities since leaving the gang,
employers would treat Mr. Rodriguez differently because they would perceive him as belonging
to the particular social group of former gang member. This further proves that once Honduron’s
society becomes aware that Mr. Rodriguez belonged to the PR25 gang, they would recognize and
distinguish the primary trait that defines Mr. Rodriguez’s group, that of former gang members.
If he returned to Honduron, Mr. Rodriguez would face unfair hostility from society at
large and would also fear for his life due to persecution from the PR25 gang; these events would
both result from the perception of Mr. Rodriguez as belonging to a very specific and well-
recognized group of persons within the country of Honduron. As a means of persecuting former
gang members, the PR25 force local citizens to report on the location of former gang members.
R. at 8. This means that in every corner of Honduron, the PR25 would ensure that the society at
large would view Mr. Rodriguez as belong to a particular social group. Therefore, he meets the
23
social visibility requirement, in addition to the prongs of immutability and particularity, which
places Mr. Rodriguez under a protected particular social group for asylum purposes.
II. THE COURT OF APPEALS ERRED IN FINDING THAT THERE ARE SERIOUS
REASONS TO BELIEVE THAT MR. RODRIGUEZ HAS COMMITTED A “SERIOUS
NONPOLITICAL CRIME” UNDER 8 U.S.C. § 1158(B)(2)(A)(III).
Asylum shall not be granted to an alien if the Attorney General determines that “there are
serious reasons for believing that the alien has committed a serious nonpolitical crime outside the
United States prior to the arrival of the alien in the United States.” 8 U.S.C. § 1158(b)(2)(A)(iii)
(2014). A sufficient, but not necessary, condition for a crime to qualify as a serious nonpolitical
crime is “if it involves acts of an atrocious nature.” Matter of McMullen, 19 I. & N. Dec. 90, 97-
98 (BIA 1984). We agree with the finding of the Court of Appeals that Mr. Rodriguez’s “conduct
does not involve acts of an ‘atrocious nature’ such as murder or terrorism.” R. at 15. However,
because Mr. Rodriguez’s crimes were neither serious nor nopolitical, the Court of Appeals erred
in concluding that he had committed a serious nonpolitical crime.
A. Mr. Rodriguez Has Not Committed a “Serious Nonpolitical Crime” Because None of
Mr. Rodriguez’s Acts Constitute a “Serious” Crime.
The Court of Appeals erred in applying a balancing test evaluating the political nature of
Mr. Rodriguez’s actions without first considering whether he had committed a crime that was
serious on its face. Regardless of whether a crime is political, it must be “serious” to be
considered a “serious nonpolitical crime.” See Matter of Ballester-Garcia, 17 I. & N. Dec. 592
(BIA 1980) (evaluating whether a theft without any political value was a “serious” crime for
24
purposes of deciding whether applicant had committed a “serious nonpolitical crime”). When it
is unclear whether a crime is “serious”, as when it is “an offense against property only”, then
such factors as the alien’s description of the crime, the turpitudinous nature of the
crime according to our precedents, the value of any property involved, the length
of sentence imposed and served, and the usual punishments imposed for
comparable offenses in the United States, are all proper considerations in
attempting to decide whether or not a crime may have been serious.
Id. at 595. Courts have also considered whether anyone was “placed at risk of serious harm” to
evaluate whether the crime was serious. Matter of E-A-, 26 I. & N. Dec. 1, 6 (BIA 2012).
The Court of Appeals erred in failing to properly apply these tests to Mr. Rodriguez’s
actions. When these standards are applied correctly to the facts surrounding Mr. Rodriguez’s
actions, there is substantial evidence to compel the conclusion that his actions were not “serious”
crimes, which means that he has not committed a serious nonpolitical crime.
1. Safely burning one obsolete vehicle without harming any other people or property is
not a “serious” crime.
The Court of Appeals claimed that burning a car was a serious crime because of the
danger and risk it caused, citing as authority Matter of E-A-, in which the applicant set passenger
buses on fire. Matter of E-A-, 26 I. & N. Dec. 1. In Matter of E-A-, the petitioner would “force
the buses to stop by constructing roadblocks of wood and then require the passengers to exit
before setting the vehicles on fire.” Matter of E-A-, 26 I. & N. Dec. at 2. In determining that a
fire is still a serious danger even when it causes no harm, Matter of E-A- relied upon the
reasoning in U.S. v. Farish, 535 F.3d 815 (8th Cir. 2008). In Farish, the court found that setting
fire to an empty house caused a “substantial risk of death or serious bodily injury” even though
no one was injured because the fire “could have easily spread to the adjoining residence and
become difficult to control before the fire department arrived.” Id. at 825.
25
The fire that Mr. Rodriguez set was substantially different from the fires in Matter of
E-A- and Farish because of the safety measures that Mr. Rodriguez insisted on taking. There is
no evidence that the people responsible for the fires in Matter of E-A- or Farish took any safety
precautions. In Farish, there was another residence nearby which could have caught fire, and in
Matter of E-A-, there were wooden roadblocks nearby that could have caught fire, in addition to
all of the passengers that had been forced out of the bus being burned. Mr. Rodriguez, on the
other hand, controlled the situation in which he burned a vehicle, eliminating the risks present in
the other cases. He “made sure that no easily explosive parts remained in the car, burned the
vehicle near a fire hydrant and away from civilian clustered areas, and kept fire extinguishers
near the scene.” R. at 6. While the group was burning the vehicle, they “kept the fire under
control.” R. at 5-6.
In Farish, it was due to pure chance that the fire didn’t “spread to the adjoining residence
and become difficult to control.” Farish, 535 F.3d at 825. But Mr. Rodriguez was not merely
relying on chance. He relied on safety measures to ensure that the fire did not become difficult to
control, harm any people, or damage any additional property. He never allowed a risk of harm to
materialize. For that reason, burning the vehicle should not be considered a serious crime.
In addition, the Court of Appeals failed to apply the test from Matter of Ballester-Garcia
for evaluating the seriousness of a crime to Mr. Rodriguez’s case. This test would only continue
to diminish the seriousness of his actions. Two factors taken into consideration in the Ballester-
Garcia test are “the value of any property involved” and “the length of sentence imposed and
served.” Matter of Ballester-Garcia, 17 I. & N. Dec. at 595. No sentence was imposed on Mr.
Rodriguez for burning the vehicle. This diminishes the seriousness of his crime. In addition,
there was little or no value to the property involved in his crime because the only property
26
damaged was a vehicle that was already obsolete. Furthermore, the vehicle was burned with the
owner’s consent; the owner was a member of the group carrying out the burning. This fact
further differentiates Mr. Rodriguez’s act from other cases where burning vehicles was found to
be a serious nonpolitical crime. See e.g., Chay-Velasquez v. Ashcroft, 367 F.3d 751, 755 (8th Cir.
2004) (finding that applicant had committed a serious nonpolitical crime for “burning buses
which served the civilian population”); I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 421 (1999)
(finding that applicant had committed serious nonpolitical crime for “setting about 10 buses on
fire”); Matter of E-A-, 26 I. & N. Dec. at 5 (finding that applicant had committed a serious
nonpolitical crime for “the burning of transit vehicles and private cars”). Because the PR25
owned the car that they were burning, that act should not be considered a serious nonpolitical
crime.
Two other factors in the Ballester test overlooked by the Court of Appeals are “the
turpitudinous nature of the crime according to our precedents” and “the usual punishments
imposed for comparable offenses in the United States.” Matter of Ballester-Garcia, 17 I. & N.
Dec. at 595. Various compilations of U.S. law have been used as the standard by which to
evaluate the seriousness of crimes committed outside the U.S. See e.g., Matter of Rodriguez-
Palma, 17 I. & N. Dec. 465, 469 (BIA 1980) (evaluating seriousness of crime committed in
Cuba by definitions in Corpus Juris Secundum and in Title 18 of the United States Code); Matter
of E-A-, 26 I. & N. Dec. at 4 (evaluating criminal nature of applicant’s actions in Cote d’Ivoire
using the Model Penal Code as a standard). The court in Matter of Rodriguez-Palma found that if
a crime is considered a felony in the United States, it should be considered a serious crime. 17 I.
& N. Dec. 465.
27
Under U.S. law, most states would only consider Mr. Rodriguez’s act a felony if it
“recklessly” created a “substantial risk” of putting people or property in danger. Under the
Model Penal Code, setting a fire is a felony only if it recklessly “(a) places another person in
danger of death or bodily injury; or (b) places a building or occupied structure of another in
danger of damage or destruction.” MODEL PENAL CODE §220.1 (2015). Several states have
reckless burning laws similar to that in the Model Penal Code. See, e.g., S.D. CODIFIED LAWS §
22-33-9.3 (2014). Arkansas’s penal code also requires that the act of burning recklessly create “a
substantial risk of death or serious physical injury to any person.” ARK. CODE ANN. § 5-38-302
(2015).
What Mr. Rodriguez did would not fall under these reckless burning statutes because he
did not recklessly create “a substantial risk of death or serious physical injury to any person”, nor
did he recklessly place “a building or occupied structure of another in danger of damage or
destruction.” No people or property were recklessly placed at risk because Mr. Rodriguez took
safety precautions to ensure this was the case. While there is no doubt that Mr. Rodriguez
engaged in intentional burning, because he did not do so recklessly and did not place any other
property or any person at risk of harm, his act cannot qualify as the felony of “reckless burning”
in Arkansas or any state with a reckless burning statute modeled on the MPC. Since the act
would not be considered a felony under U.S. law, it should not be considered a “serious” crime.
Even if his act does qualify as “reckless” under the Model Penal Code, still not all states
would consider his action a felony. For example, in Delaware, reckless burning is only a felony
when it causes a certain amount of financial damages. When the “total amount of pecuniary loss
caused by the burning… is less than $1,500,” the act is considered a misdemeanor instead of a
felony. DEL. CODE ANN. tit. 11, § 804 (2015). Therefore, under Delaware law, Mr. Rodriguez’s
28
act would certainly be only a misdemeanor, since the only damage was done to an obsolete
vehicle which certainly would not be worth $1,500. Since Mr. Rodriguez’s action would be at
worst a misdemeanor in Delaware, his action in burning the vehicle should not be considered a
“serious” crime.
2. Even if burning a vehicle under these circumstances is a serious crime, Mr.
Rodriguez’s participation in the burning should not be considered a serious crime
because he participated in the crime while under duress.
When evaluating Mr. Rodriguez’s participation in the protest under U.S. law, we also
have to consider the fact that he was acting under duress. According to the definition of duress in
the Model Penal Code:
It is an affirmative defense that the actor engaged in the conduct charged to
constitute an offense because he was coerced to do so by the use of, or a threat to
use, unlawful force against his person or the person of another, that a person of
reasonable firmness in his situation would have been unable to resist.
MODEL PENAL CODE §2.09 (2015). Courts have also considered duress as a defense when
evaluating the serious nonpolitical crime exception. The duress defense has been rejected in
these cases only because the applicants lacked the factual basis to raise the defense, not because
it was an improper legal defense. See Gallagher v. I.N.S., No. 85-3203, 1986 WL 16657, at *1
(6th Cir. Mar. 31, 1986) (rejecting the duress excuse because of testimony “that the PIRA only
‘asked’ him ‘in a nice way’ to provide information on weapons usage, and that he was not fearful
of reprisal by the PIRA for his refusal to assist them”); Urbina-Mejia v. Holder, 597 F.3d 360,
363 (6th Cir. 2010) (rejecting applicant’s coercion argument because the facts suggested “that he
possessed a ‘fair amount of autonomy’ in that he shared in the proceeds of his crimes and carried
a firearm”).
29
Unlike in Gallagher and Urbina-Mejia, the evidence shows that Mr. Rodriguez was
really under duress. He wasn’t “asked…in a nice way” to participate in the protest, nor did he
have a weapon with which to defend himself against the PR25. Although he did have enough
autonomy to insist on safety measures, that doesn’t mean he had the option to not participate in
the protest. The PR25 threatened to beat him and his younger sister if he did not participate in the
protest. R. at 6. This threat came from an organization “notorious for their use of violence.” R. at
5. Furthermore, Mr. Rodriguez knew that “previous disobediences had resulted in horrific
retributions from the PR25 organization.” R. at 6. Mr. Rodriguez’s participation in the protest
therefore meets the Model Penal Code definition of duress. He was coerced into burning the
vehicle by the PR25’s threat to use violence against him and his sister. Because the PR25’s threat
to use unlawful force against Mr. Rodriguez and his sister was a credible threat, “a person of
reasonable firmness in his situation would have been unable to resist”, which means Mr.
Rodriguez was acting out of duress. Since duress would serve as a defense under American law,
it should serve as a defense for Mr. Rodriguez’s crime, which would significantly mitigate the
seriousness if his crime, and thus it should not be considered a “serious” crime.
3. Throwing rocks as an act of self-defense against police officers using guns and
shields is not a “serious” crime.
Under U.S. law, Mr. Rodriguez’s act of throwing rocks would be considered self-defense.
“One assaulted may repel force with force, and continue the self-defense as long as the danger
apparently continues. Hence, acts done in self-defense cannot be an assault.” 6A C.J.S. Assault §
106 (2014). In Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002), the court considered self-defense in
evaluating whether the applicant had committed a serious nonpolitical crime, and rejected it as a
defense only because the applicant “was no longer under immediate threat of physical harm” at
30
the time he committed his crime. Id. at 906. The Sixth Circuit has also found that where “rock
throwing was an act of self defense and was never directed at civilians…it might diminish the
criminal nature of the actions.” Berhane v. Holder, 606 F.3d 819, 825 (6th Cir. 2010).
The reason that Mr. Rodriguez threw rocks at the police officers was to defend himself
against the officers after they began shooting rubber bullets into the crowd. Rubber bullets
frequently cause severe injuries to the head and neck, and have been known to cause permanent
disabilities. They have also caused some deaths. R. Millar, W. H. Rutherford, S. Johnston & V. J.
Malhotra, Injuries caused by rubber bullets: A report on 90 patients, BRITISH JOURNAL OF
SURGERY, June 1975, at 480. Mr. Rodriguez was being assaulted by the police when they shot at
him with rubber bullets, putting him in danger of death or great bodily harm. He was therefore
acting in self-defense when he threw rocks at the officers. Neither Mr. Rodriguez nor any of the
other protesters assaulted or did anything violent to the police officers to cause them to start
shooting at the protesters. Mr. Rodriguez was therefore justified in using force in response to the
police using such unnecessary force to “suppress the protest.” R. at 6. Because he was acting in
self-defense, Mr. Rodriguez did not commit a crime under the standard of the Corpus Juris
Secundum – “acts done in self-defense cannot be assault.” Since his act does not qualify as
assault, it should not be considered a serious nonpolitical crime.
4. Even considered together, Mr. Rodriguez’s actions cannot be considered “serious”
crimes.
While some criminal actions “would not alone meet the definition of a serious
nonpolitical crime,” when considered together with other actions, they may still reach the level
of a serious crime. Matter of E-A-, 26 I. & N. Dec. at 4. In that case it was “particularly the
31
burning of buses and cars” combined with lesser offenses such as rock throwing that caused the
combination of applicant’s actions to reach the level of a serious nonpolitical crime. Id.
However, the court in Matter of E-A- also stated that “we consider the circumstances of
this case to be at the outer limits of what would constitute a serious nonpolitical crime.” 26 I. &
N. Dec. at 7 (emphasis added). Therefore, any acts less serious than what the petitioner did in
Matter of E-A- should not be considered a serious nonpolitical crime, and what Mr. Rodriguez
did was considerably less serious. First of all, Mr. Rodriguez was only involved in a single
vehicle burning, whereas the applicant in Matter of E-A- burned passenger buses and cars “on
five or six occasions.” Id. at 2. Furthermore, the applicant in Matter of E-A- burned and therefore
destroyed vehicles belonging to other people, whereas Mr. Rodriguez burned an obsolete vehicle
with the permission of its owner. Because Mr. Rodriguez’s actions did not cause financial losses
to any third party, this makes his crime far less serious than that in Matter of E-A-. In addition,
the multitude of safety measures that Mr. Rodriguez took make his crime less reckless than that
in Matter of E-A-. And in addition to the vehicle burning, the applicant in Matter of E-A- also
harassed innocent civilians. He “pushed baskets of food off the heads of merchants as they
walked on the streets, and threw merchandise off of merchants' tables in the market.” Id. Since
Mr. Rodriguez did not harass or in any way harm any civilians, his acts are also less serious in
this way. Because both of his actions considered together are less serious than the crimes
committed by the applicant in Matter of E-A-, the case that represented the “outer limits” of a
serious nonpolitical crime, Mr. Rodriguez’s actions should not be considered a serious
nonpolitical crime.
Even if this court disagrees with the BIA’s determination that Matter of E-A- represents
the outer limit, the combination of Mr. Rodriguez’s actions still should not be considered a
32
serious nonpolitical crime. An act of self-defense, combined with an act carried out under duress
that still caused no harm and little risk of harm to either person or property, does not equate to a
serious crime. The substantial evidence that his crimes were not serious compels the conclusion
that Mr. Rodriguez did not commit a serious nonpolitical crime.
B. Even if Mr. Rodriguez’s Crimes Were “Serious”, He Has Not Committed a Serious
Nonpolitical Crime Because the Criminal Nature of His Acts Is Outweighed By Their
Political Nature.
If a crime is “serious”, then in evaluating its political nature, a court will “consider it
important that the political aspect of the offense outweigh its common-law character.” Matter of
McMullen, 19 I. & N. Dec. at 97-98. Whether a crime’s political nature outweighs its common-
law nature is based on the following four factors:
(1) A determination that genuine political motives existed; (2) Whether the act was
directed toward modification of the political organization of the state; (3) Whether
a causal link exists between the crime and political purpose; and (4) A balance of
the political nature of the act with whether it was disproportionate to its objective.
Efe, 293 F.3d at 905. (citing Aguirre-Aguirre, 526 U.S. 415; McMullen v. I.N.S., 788 F.2d 591,
595 (9th Cir. 1986)). When this standard is applied to Mr. Rodriguez’s actions on the day he
participated in the death penalty protest, the political nature of his acts clearly outweighs their
criminal nature, meaning that they did not constitute a serious nonpolitical crime.
1. The political aspects of burning an obsolete vehicle in front of City Hall to protest
the reenactment of the death penalty outweigh the criminal aspects of the act.
Mr. Rodriguez’s participation in burning a vehicle to protest the government’s action fits
all four criteria listed in Efe necessary to make his crime a political one.
33
Mr. Rodriguez had (1) “genuine political motives” for burning the vehicle. The PR25 was
burning the vehicle as part of a protest against the reenactment of the death penalty. Mr.
Rodriguez was participating in part because of his genuine political belief that the death penalty
is an ineffective way to combat criminal activities. R. at 6. Although it is true that Mr. Rodriguez
also participated in the protest because of the threats he received from the PR25, this does not
undo the fact that he also participated because of his political belief. The balancing test does not
require that a political motive be the only motive for committing a crime; it merely requires that
a genuine political motive for the crime “exist.” See Efe, 293 F.3d at 905. Since a political
motive for participating in the crime clearly existed for Mr. Rodriguez, this helps to outweigh the
criminal nature of his actions.
The Court of Appeals found Mr. Rodriguez’s political motive to be “questionable since
the PR25 benefit from the non-existence of death penalty.” R. at 16. However, it is possible, and
even common, for people to have a genuine political belief in a policy that benefits them. A
person’s political support for tax cuts, welfare programs, or funding for parks or schools is not
made any less genuine by the fact that the person benefits from such policies. Similarly, Mr.
Rodriguez’s “personal belief that the death penalty is not an effective and moral way to combat
criminal activities,” R. at 6, is not any less genuine of a political belief if he also benefits from
the non-existence of the death penalty.
Mr. Rodriguez’s act also meets the second prong of the Efe balancing test because it was
(2) “directed toward modification of the political organization of the state.” He burned the
vehicle two blocks from City Hall as part of a protest clearly directed at the government. The
protest was aimed at convincing the state to repeal the legislation reenacting the death penalty,
34
which would change Honduron’s laws affecting the criminal justice system. The act was
therefore aimed at modifying the state’s political organization.
There is also (3) “a causal link” between Mr. Rodriguez’s action and his political goal.
He was trying to call attention to the fact that the legislation the government had passed was not
in line with what he wanted as a citizen of Honduron. He was hoping that through his protest, he
would cause the government to repeal the legislation with which he had a political disagreement.
That serves as a link between his action and his political goal.
Mr. Rodriguez’s act is also not (4) disproportionate to its political objective.
Disproportion between means and ends occurs when the criminal act is far more severe than is
warranted by the political goal. See Efe, 293 F.3d at 906 (finding that the “act of returning to the
demonstration to kill a police officer is disproportionate to the objective of installing Abiola”). In
Mr. Rodriguez’s case, protesting in front of City Hall by safely burning a vehicle owned by the
protesters is in no way disproportionate to a political goal as great as inducing the repeal of
legislation that affects whether certain people in Honduron get to live or die.
Mr. Rodriguez’s action in burning the vehicle meets all of the criteria to make it a
political crime. Because his action’s political nature outweighs its criminal nature, it should not
be considered a serious nonpolitical crime.
2. The political nature of throwing rocks at police officers trying to suppress a political
protest outweighs the criminal nature of the act.
In addition to the test outlined in Efe, a crime’s political value may be evaluated by the
person or group against which the crime is directed: “There is a meaningful distinction between
terrorist acts directed at the military or official agencies of the state, and random acts of violence
against ordinary citizens that are intended only ‘to promote social chaos.’” McMullen v. I.N.S.,
35
788 F.2d 591, 597 (9th Cir. 1986). Mr. Rodriguez’s act of rock throwing was not directed against
ordinary citizens, and it was not intended only “to promote social chaos.” Rather, it was directed
against police officers acting in their official capacity as government agents, and it was a
response to actions taken by the government in an “attempt to suppress the protest.” R. at 6.
Because the rock throwing resulted from the political protest against the death penalty, the rock
throwing has just as much political value as the protest, which already passes the Efe test for
political nature – Mr. Rodriguez had a genuine political motive for participating in the protest,
the protest was directed at modifying the laws in Honduron, and there was a causal link between
his actions and his protest. In addition, given “the prevalence of rock throwing as a form of street
protest”, Berhane, 606 F.3d at 825, the act of throwing rocks at officers trying to violently break
up a street protest is not disproportionate to the political goal of stopping the government from
suppressing protest and political expression.
Mr. Rodriguez’s political motivations in his acts of protest against a government he
disagreed with are enough to outweigh the low criminal value of his actions. Therefore, the
evidence compels a finding that his actions do not constitute a serious nonpolitical crime.
C. Mr. Rodriguez Has Not Committed a Serious Nonpolitical Crime Because
Applicants for Asylum in His Situation Are Not the Type of Applicant the “Serious
Nonpolitical Crime” Exception Was Enacted to Exclude.
The “serious nonpolitical crime” exception first appeared in U.S. immigration law in
1980. The exception was, and still is, “almost verbatim, the language of the United Nations 1951
Convention and 1967 Protocol Relating to the Status of Refugees.” Matter of Rodriguez-Palma,
17 I. & N. Dec. at 467. “The Conference Report which accompanied the final version of the
Refugee Act of 1980 indicates that it was Congress' intent that the provisions of [the “serious
36
nonpolitical crime” exception] be construed consistently with the Protocol.” Id. at 468. The
United Nations High Commissioner for Refugees has stated that the exception in the Protocol is
intended to deprive refugee protection to those guilty of “serious common crimes… and to
ensure that such persons do not abuse the institution of asylum in order to avoid being held
legally accountable for their acts.” U. N. High Comm’r for Refugees, Guidelines on the
Application of the Exclusion Clauses (Article 1(F) of the 1951 Convention), ¶2 (Sept. 4, 2003).
Mr. Rodriguez is not a fugitive from the law. He did not come to the United States to
“avoid being held legally accountable” for any crimes; he came here to escape persecution. By
granting him asylum, we also do not have to worry about him committing “serious common
crimes” in the United States. He only committed crimes due to a specific set of circumstances
present only in Honduron, which involved coercion by a powerful criminal organization with
“connections within the government.” R. at 6. Now that he has left behind Honduron’s
conditions of social strife and political instability, he will not commit crimes in the United States.
Mr. Rodriguez has “never engaged in any further criminal activities since renouncing his
membership with the PR25.” R. at 7. He is not the sort of asylum applicant that the exception
was meant to apply to. For that reason, the Court should find that he did not commit a serious
nonpolitical crime, and reverse the decision of the Court of Appeals.
CONCLUSION
For the foregoing reasons, this Court should reverse the judgment of the Fourteenth Circuit.
