Asylum : Representing victims of DV & Procedural Updates
Asylum : Representing victims of DV & Procedural Updates
Christina Brown & Rebecca Kitson
What we will cover What we will cover
Latest changes in the law Representing victims of DVIssues with procedure
Lodging versus filing One year filing deadline Using expert witnesses
A quick asylum refresher A quick asylum refresher
Definition of a Refugee, INA 101(a)(42)(A) (Emphasis added) 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 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
A quick asylum refresher A quick asylum refresher
Accordingly, individuals may qualify for asylum if they can prove:
a well-founded fearof persecutionperpetuated by the government or an entity the government cannot or will not controlon account ofone of the five protected grounds
DV and asylum: BackgroundDV and asylum: Background
Background on the meaning of particular “social group” protected ground (PSG) Matter of Acosta, 19 I&N Dec 211 (BIA 1985):
Established the rule that a social group should encompass shared characteristics that members cannot change or should not be required to change, i.e., “immutable characteristics”
DV and asylum: BackgroundDV and asylum: Background
Matter of Kasinga, 21 I&N Dec 357 (BIA 1996) Involved a Togolese woman fleeing female genital cuttingRecognized that social group could be defined in reference to gender• “young women of the Tchamba-Kunsuntu Tribe who have
not had FGM, as practiced by the tribe, and who oppose the practice”
Found nexus between persecution and social group by taking societal context into consideration
DV and asylum: BackgroundDV and asylum: Background
In 2000, regulations were proposed by AG Reno that recognize gender as an immutable characteristic and that marital status can be under some circumstances. The Obama Administration indicated its intention to issue the proposed regulations in 2010, but it never happened.
The Regulatory Plan, 74 Fed. Reg. 64137, 64220-21 (Dec 7, 2009)
To date, no regulations have been promulgated
DV and asylum: BackgroundDV and asylum: Background
Matter of R-A- IJ initially granted asylum based on 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.” 10 year procedural nightmare resulted in stipulated grant in 2009New post-Acosta social group requirements of “social visibility” and “particularity” arose out of battle
In re R-A-, 22 I&N Dec 906 (BIA 1999); 23 I&N Dec 694 (AG 2005) Matter of R-A-, 24 I&N Dec 629 (AG 2008)
Case law update: 2014 – present Case law update: 2014 – present
Matter of M-E-V-G, 26 I&N Dec 227 (BIA 2014) 1) Clarifies “social visibility” element required to establish PSG does not mean ocular visibility but “social distinction” 2) An asylum or withholding applicant seeking relief based on PSG must establish that the group is 1) composed of members who share a common immutable characteristic; 2) defined with particularity; and 3) socially distinct within the society 3) Whether a social group is recognized is determined by the society’s perception, not by the persecutor. • See also Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014)
Case law update: 2014 – present Case law update: 2014 – present
Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)Depending on facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.
The view from the front lines: Case examples from Artesia
The view from the front lines: Case examples from Artesia
Case 1: El SalvadorCase 2: GuatemalaCase 3: Honduras
El SalvadorEl Salvador
Asylum claim Husband rapes her daily and beats herShe doesn’t report to police because she is told by police officer not toShe escapes to mother’s home, where husband stalks her with machete and threatens her
Loss – “El Salvadoran women in a domestic relationship who are unable to leave”
GuatemalaGuatemala
Asylum claim Husband rapes her daily and beats herBeats her children severely, breaking bonesTries to hack down a door with a machete to get to her
Win: “Guatemalan women in a common law marriage who are unable to leave the relationship or are viewed as property by virtue of the relationship”
HondurasHonduras
Asylum claim Woman kidnapped, raped, forced to marryHeld captive for years in family homeRaped repeatedly resulting in two childrenHusband tracked her down at parents and threatened to kill her
Win: “Married women in Honduras who cannot leave the relationship”
Practice tips : DV claims Practice tips : DV claims
Issues in Artesia claims“Unable to leave” Marital relationship Domestic abuse from family Women’s shelters and police protection
Practice tips: DV claims Practice tips: DV claims
Use of humanitarian asylum Arguing extension of one year for PTSD etc Alternative forms of relief (withholding, CAT, admin closure / pros discretion, etc)
Recent procedural challenges: One year deadline compliance
Recent procedural challenges: One year deadline compliance Lodging versus filing
Immigration Court Practice Manual
One year filing deadlineWhat to do when your NTA hasn’t been lodged? What to do when your first MCH is beyond the one year filing deadline?
Using expert witnesses Using expert witnesses
“Expert” Witness: Has specialized knowledge by virtue of skill, experience, training, education, that will help trier of fact understand an issue/fact. Matter of D-R-, 25 I&N Dec. 445 (BIA 2011); Kholyavskiy v. Mukasey, 540 F.3d 555 (2008); see also Fed. Rules of Evidence 702.
Can provide conclusions and inferences drawn from facts that lay persons are not qualified to make. United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994).
Using expert witnessesUsing expert witnesses
Qualifying the Expert CV/Resume - preferably tailored to your issue Written Declaration
Explain relevant background, scholarship, experience Background materials reviewed for testimony Direct contact with respondent? Describe. Documents (record excerpts) reviewed
Using expert witnessesUsing expert witnesses
Preparing the Expert Anticipate challenges, such as bias, no expertise on the specific matter at issue, and lack of recent travel Avoid OES “Overeager Expert Syndrome”
Using expert witnesses: Telephonic testimony Using expert witnesses: Telephonic testimony
Motion Requirements: ICPM § 4.15(o)(iii) State why the witness cannot personally appear Telephone number & location of witness Caveats
Cellphones disfavored Telephonic witness should be available during the entire hearing time slotICPM: Bring a prepaid international calling card for out of U.S. witness testimony.
Problems with telephonic testimonyProblems with telephonic testimony
Potential problems for telephonic testimony No way to verify ID of witness absent testifying from an US government office The appearance of a witness at an U.S. government office may be problematic in some countries, hours of business, not priority, and cost. 22 USC § 22.1. Alternatives: Neutral, third party-NGO office, other country consulate
Questions?? Questions??
Email addresses of presenters:
Rebecca Kitson, [email protected] Christina Brown, [email protected]