Asylum

Elements of Cognizable Particular Social Group:

  1. immutable characteristic(s) (cannot or should not be changed)
  2. socially visible/recognizable/distinct
  3. particular (can clearly tell who is a member)

Nexus with Persecution due to race, religion, nationality, membership in a particular social group, political opinion.

  • Note doctrine of imputation: it can be the perception of belonging to one of the protected grounds that motivates the persecution, even if in actuality the victim did not possess that characteristic.

An adverse credibility determination (re. past persecution) must comport with the administrative record, and the IJ/BIA must offer a cogent reason for the determination. If upon review the decision is found to be based on speculation or conjecture, it can be reversed.

Two different evidentiary standards:

  1. “well-founded fear”: Standard for asylum, which is a discretionary grant; involves both subjective and objective elements (see Acosta and Cardoza-Fonseca 8 U.S.C. § 1158(a) / Refugee Act § 208(a)
  2. “clear probability”: Standard for withholding of deportation, which is obligatory on the government if it is “more likely than not” that someone will experience persecution if returned to their country (see Cardoza-Fonseca8 U.S.C. § 1253(h)/ INA (1980) § 243(h)

See 8 U.S.C. §1158

Relevant Case Law 

  • INS v. Stevic, 467 U.S. 407 (1984): withholding of removal has a higher bar–“clear probability.” (Summary)
  • Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th1985): Subjective test = genuine fear; persecution because of difference that the persecutor refuses to tolerate (at 516); persecution bcz gov’t attributed political opinions to alien
  • Argueta v. INS, 759 F.2d 1395 (9th Cir.1985): death threats based on mistaken belief that alien was guerilla fighter = persecution for political opinion
  • Matter of Acosta, 19 I&N Dec. 211, 232 (BIA 1985): seminal decision interpreting “PSG”—group shares common, immutable characteristic that can’t be changed or (bcz conscience) should not be changed. (Summary) Applied:
    • Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997): Filipinos of mixed Filipino-Chinese ancestry
    • Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996): women of tribe in Togo who oppose FGM (Summary)
    • Matter of H-, 21 I&N Dec. 337 (BIA 1996): subclan in Somalia sharing kinship and linguistic
    • Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990): persons id’d as gay by Cuban Gov’t
    • Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988): former members of El Salvador national police
  • INS v. Cardoza-Fonesca, 480 U.S. 421 (1987): Clarifying that the “well-founded fear” standard for asylum (a discretionary grant) is distinct from the “clear probability” standard for withholding of deportation. Apparently contradicts BIA’s Acosta, above. (Summary)
  • Desir v.Ilchert, 849 F.2d 723, 729 (9th 1988): re. well-founded fear of future persecution (mainly about political persecution; remanded to figure out future possibility) (Summary)
  • Matter of Fefe, 20 I&N Dec. 116, 118 (BIA 1989): Statute at the time required that asylum applicant be allowed to testify before judge under oath (at minimum); court held that ordinarily this should be a full oral examination. (Basis for decision in Matter of E-F-H-L- (BIA 2014) below, even though statute had been updated.)
  • Matter of Chang, 20 I&N Dec. 38 (BIA 1989): One-child policy in China; persecution isn’t about political opinion if it would be inflicted regardless of the political opinion. (Superseded on other grounds) (Summary)
  • INS v. Elias-Zacarias, 502 U.S. 478 (1992): nexus requirement: direct or circumstantial evidence that persecutor is motivated by victim’s real/perceived protected ground. (Native of Guatemala threatened by guerillas if he didn’t join up.) (Summary)
  • Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993): Haitian immigrants refouled because located on the high seas when intercepted. (Despite UNHCR Convention re. asylum-seekers.)
  • Fatin v. INS, 12 F.3d 1233, 1238-39 (3d Cir. 1993): struggle to define “PSG
  • Llana-Castellon v. INS, 16 F.3d 1093, 1097-98 (10th 1994): if persecutor is not state, must show that state is unwilling or unable to protect victim.
  • Matter of X-P-T, 21 I&N Dec. 634 (BIA 1996): Evaluating harm related to political opinion
  • Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996): The harm feared must be serious enough to be persecution
  • Matter of N-M-A-, 22 I&N Dec. 312 (BIA 1998): asylum granted based on past persecution alone only in limited cases.
  • Surita v. INS, 95 F.3d 814, 819-20 (9th Cir. 1998): State action: police refused to respond to requests for help = persecution
  • Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998): Anti-Semitic persecution in Ukraine & government inaction
  • Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998): review of adverse credibility determinations based on substantial evidence standard
  • Mgoian v. INS, 184 F.3d 1029, 1036-37 (9th Cir. 1999): State action requirement: pattern of government unresponsiveness
  • INS v. Aguirre-Aguirre, 526 U.S. 415 (1999): Determining nonpolitical crimes; balancing criminal activity with fear of persecution. When is a “protest” not a protest? When the acts are atrocious or at least disproportionate to political goals, as here (burning buses and smashing shops). (Summary)
  • Matter of R-A-, 22 I&N Dec. 906 (BIA 1999) (original decision—but it got bopped around to different adjudicators for the next nine years…)
    • While A.G. Ashcroft was working on it in 2003, the DHS “filed a brief positing a number of alternative positions, including that a cognizable particular social group in the case would be defined as ‘married women in Guatemala who are unable to leave the relationship.’” (3-4) (Summary A.G. 2008)
    • DHS Supplementary Brief in Matter of R-A- (2004) (Summary)
  • Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000): adverse credibility determinations can be reversed if they were based on speculation or conjecture rather than substantial evidence
  • Abdulai v. Ashcroft, 239 F.3d [542,] 554 [ (3d Cir.2001): Corroborating evidence sometimes necessary, according to these expectations:
    • Identify which part of the testimony could reasonably be corroborated
    • Inquire whether applicant has provided corroborating evidence
    • If not, are there reasonable explanations for lack of corroboration?
  • Gao v. Ashcroft, 299 F.3d 266 (3d Cir.2002): the relevance of adverse credibility determinations to asylum inquiry
  • Cardenas v. INS, 294 F.3d 1062, 1066 (9th 2002): “Asylum may be denied where the applicant has the reasonable option of avoiding abuse by relocating within the home country.” (12)
  • Abdulrahman v. Ashcroft, 330 F.3d 587, 591–92 (3d Cir.2003): applicant who establishes past persecution is presumed to have well founded fear of future persecution; up to gov’t to rebut this with changed country conditions.
  • Amanfi v. Ashcroft, 328 F.3d 719, 730 (3d Cir. 2003): immutability: persecution of member of PSG possible even if membership is only perceived but not actual
  • Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003): adverse credibility determination and country conditions
  • Berishaj v. Ashcroft, 378 F.3d 314 (2004): if adverse credibility determination is not reasonably supported by the administrative record, it can be reversed. (Summary) 
  • Matter of C-A-, 23 I&N Dec. 951 (BIA 2006): further defines PSG: not all groups sharing immutable/fundamental characteristic = cognizable protected group. Also must consider if group is socially recognized. (In this case, confidential group of informants by definition was not socially visible.) (“a cognizable particular social group must reflect social perceptions or distinctions” (17))
    • Ngengwe v. Mukasey, 543 F.3d 1029, 1034 (8th 2008): Cameroonian widows a visible group bcz rituals & social treatment documented.
  • Matter of J-Y-C-, 24 I&N Dec. 260, 261 n.1 (BIA 2007): BIA won’t review an asylum claim not raised below unless significant legal developments intervene and call for a remand.
  • Matter of S-E-G-, 24 I&N Dec. 579, 584 (BIA 2008): PSG must have particularity—“whether the proposed group would be recognized, in the society in question, as a discrete class of persons.” Particular v. amorphous; benchmark for determining membership. (Vague terms like “family members of…” aren’t helpful.)
  • Negusie v. Holder, 555 U.S. 511 (2009): Does the “persecutor bar” to asylum apply if a person has acted under duress? SCOTUS urged deference to BIA, which did not grant petitioner asylum because of participation in persecution.
  • Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010): untimely filing of documentary evidence doesn’t mean IJ can cancel evidentiary hearing on the merits.
  • Oshodi v. Holder, 729 F.3d 883, 889-93 (9th Cir. 2013)(en banc): IJ did not let asylum applicant testify under oath; 5th Amendment due process rights violated.
  • Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014): Holding that persons requesting asylum/ withholding of removal are entitled to full evidentiary hearing without having first to establish prima facie eligibility. (Vacated by Matter of E-F-H-L-, 27 I&N Dec. 226 (AG 2018)(Summary)
  • Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014): clarifying the meaning of the term “PSG”: immutable characteristic, particularity, & socially distinct (renaming “social visibility’ requirement)(Summary)
  • Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014): clarifying the meaning of the term “PSG”; particularity (delineation of group), socially distinct (Summary)
  • Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014): designating “married women in Guatemala who are unable to leave their relationship” a particular social group. (Summary)
  • Tairou v. Whitaker, No. 17-1404, Nov. 30 2018 (4th Circuit): death threats constitute persecution. (Summary)
  • Matter of E-F-H-L-, 27 I&N Dec. 226 (AG 2018): Vacates Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), essentially canceling precedent of entitlement to evidentiary hearing on asylum claim. (One-page summary that simply states the original is vacated, without zeroing in on the holding as no longer being precedential, but this is how it’s been understood.)
  • Chiroy-Melchor v. Barr, No. 18-3564, Feb. 15 2019 (6th Circuit) [UNPUBLISHED]: a primer in what not to do when trying to argue PSG issues at the BIA and CA level. (Summary)
  • Padilla v. ICE, C18-928 MJP (W.D. WA 2019):  7/3/19 Injunctions from District Court judge against A.G.’s Matter of M-S- (4/16/19) prohibiting bond hearings for any asylum applicants. Injunction calls for hearings w/in 7 days if credible fear is determined; based on Due Process rights. (Summary)