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Article: THE DHS AGREES THAT THE SON OF A STORE OWNER WHO WAS THREATENED BY A GANG MAY WIN ASYLUM, EVEN IF THE OWNER MAY NOT. By David L. Cleveland

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  • Article: THE DHS AGREES THAT THE SON OF A STORE OWNER WHO WAS THREATENED BY A GANG MAY WIN ASYLUM, EVEN IF THE OWNER MAY NOT. By David L. Cleveland

    THE DHS AGREES THAT THE SON OF A STORE OWNER WHO WAS THREATENED BY A GANG MAY WIN ASYLUM, EVEN IF THE OWNER MAY NOT

    by


    In most societies, an “immediate family” is a cognizable particular social group. If a gang threatens a store owner, the son of that owner can be granted asylum, without presenting evidence of why the owner was threatened.

    So wrote the DHS in its 23-page- supplemental brief, dated April 21, 2016, submitted to the BIA in Matter of Alba, # 200-553-090. Signed by George R. Martin, Associate Legal Advisor, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, DHS, this brief is available at:
    https://drive.google.com/file/d/0B_6gbFPjVDoxU09lM0NrVXBDTzA/edit

    Facts

    Mr. Alba, 36 years old, lived with his father in Mexico City. His father owned a small general store. A “criminal organization,” known as La Familia, approached the father “about selling drugs in the store because it would make their distribution easier, but [the father] refused.” [Brief at 3].

    While outside, Alba heard shots fired, apparently from a black sport utility vehicle. Later, armed men from that vehicle approached Alba, identified themselves as members of La Familia, and asked if he would sell their drugs at his father’s store. Alba refused. The men came back and attempted to kidnap him. Alba “fought free but the men warned that they would come back for him.” [Brief at 3].

    Immigration Judge decision of September 2013

    The Immigration Judge found Alba to be credible, and that the family of Alba’s father was a cognizable particular social group; however, asylum was denied for failure to establish a nexus. “The Immigration Judge found that La Familia only was interested in increasing its profits and distribution by using the store.” [Brief at 4, emphasis added].

    The DHS conceded that La Familia did, indeed, target Alba because it wanted to increase its profits. However, there is also evidence that La Familia targeted Alba because he was the son of the owner. Persecutors can have mixed motivations. The case should be remanded to determine if Alba can show that his family membership was “a central motivating reason for the persecutor’s decision to persecute him.” [Brief at 21].

    The immediate family is a particular social group

    “Membership is a family has long been recognized as a potential basis for membership in a particular social group.” [Brief at 5, citing cases from the First, Fourth, Seventh, and Ninth Circuits]. The Office of the United Nations High Commissioner for Refugees (UNHCR), at ¶ 18 of its March 2006 publication, “has advised that family-based refugee status claims may be cognizable.” [Brief at 6].

    “The Department believes that the putative particular social group in this case is best characterized as the immediate family of respondent’s father, and that an immediate family will constitute a cognizable particular social group in most cases.” [Brief at 7]. Family membership usually is immutable, and “certain family units are discrete and have identifiable boundaries.” [Brief at 8]. An immediate family “ordinarily will satisfy the particularity requirement,” but a family including uncles, aunts, grandparents, and cousins would not. [Brief at 8].

    Nexus

    “Simply because an applicant…may belong to the same immediate family as ‘the defining family member’….does not necessarily mean [that applicant prevails]. The applicant must show that membership in the immediate family is a “central reason for the persecutor’s decision to persecute the applicant.” [Brief at 10].

    If family membership is a central reason for persecuting the applicant, “the persecutor’s motivation for targeting the ‘defining family member’ is not controlling and need not be on account of a protected ground.” [Brief at 10; and also at 22]. If family membership only played “a minor role;” if it was “incidental,” or “tangential,” then it is not a “central reason.”[Brief at 10, citing Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007)].

    The DHS does not fully agree with decisions from the Fifth, Seventh, and Eighth Circuits

    The DHS does not fully agree with Orellana-Monson v. Holder, 685 F.3d. 511, 522 (5th Cir. 2012), nor with Constanza v. Holder, 647 F.3d 749, 753 (8th Cir. 2011). These two decisions “employed overly broad types of families…rather than individual relationships to specific family members.” [Brief at 11].

    “Specific passages in Lin v. Holder, 411 F. Appx. 901, (7th Cir. 2011) and Malonga v. Holder, 621 F.3d 757, (8th Cir. 2010) for example, could be read to imply that [the applicant must also show the persecutor’s purpose in harming the other family member was because of a protected ground]. [Brief at 12] The DHS “respectfully disagrees with this approach.” [Brief at 13].

    The DHS does not fully agree with Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015). This decision “could be read to require that, in order to be successful in a family-based particular social group claim, the motivation of the putative persecutor must include some form of animosity towards the family unit…..We do not believe that it is necessary or correct to read Ramirez-Mejia in this way….” [Brief at 18, note 11].

    The DHS endorses decisions from the First, Fourth, and Ninth Circuits

    In Aldana-Ramos v. Holder, 757 F.3d 9, 15 (1st Cir. 2014), the Court remanded a case to the BIA, where two sons were threatened, after their father was kidnapped. The Court “reversed the Board’s conclusion that the brothers had been threatened solely on the basis of wealth…” [Brief at 14]. In Hernandez-Avalos v. Holder, 784 F.3d 944, 950 (4th Cir. 2015), a mother was chosen as victim because she did not allow her son to join a gang. The Court ruled that this family connection was “at least one central reason for her persecution.” [Brief at 14].

    In Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015), applicant’s father and cousin were murdered by a gang. His sister was threatened by the gang. The Court ruled that the Board had erred in not addressing the “family aspect” of applicant’s claim. [Brief at 15].

    “DHS believes that these latter courts are correct in determining that the nexus requirement is satisfied when the persecutor is motivated to act against the victim because of the victim’s family membership, without further inquiry into the persecutor’s underlying objectives in doing so (including whether that underlying objective is to act against the ‘defining family member’ on account of a protected ground).” [Brief at 15].

    Motivations “of any person for a given action sometimes can be complex and involve a range of different factors.” [Brief at 15]. “Choice of victim” is important: why did the persecutor choose this applicant? Was it because of family ties?

    A persecutor might target “an individual for revenge for something the individual actually did…, [or, he might target] an individual because of that individual’s family-based status….” [Brief at 16].

    Nexus is not established simply because a persecutor is interested in multiple family members

    Where a gang asked a sister about her brother, no nexus was found. The gang merely sought information. Ramirez-Mejia v.Lynch, 794 F.3d 485 (5th Cir. 2015). Where criminals robbed father, and then threatened the son, no nexus was found. The criminals just wanted money from the son. Perlera-Sola v. Holder, 699 F.3d 572 (1st Cir. 2012).

    “In this case, the Department stipulates that the immediate family unit of the respondent’s father qualifies as a cognizable particular social group.” [Brief at 20]. The Department “respectfully urges the Board to adopt” the principles set forth by it “in this brief.” [Brief at 21].

    Comments of the author

    1. The Office of the Principal Legal Advisor, (OPLA), U.S. Immigration and Customs Enforcement, (ICE), Department of Homeland Security (DHS) is the official voice of ICE “in court and administrative proceedings.”
    https://www.dhs.gov/office-general-counsel [accessed on June 14, 2016]

    OPLA has a Facebook page, where it states it “is the exclusive legal representative for the U.S. government” in immigration court, and that it provides “legal advice, training and services.”
    https://www.facebook.com/wwwICEgov/p...53414056661815 [accessed on June 15, 2016]

    Therefore, all Assistant Chief Counsels should follow and “adopt the principles set forth” in the brief. When you go to immigration court, ask your Assistant Chief Counsel if she is aware of this brief, and if she has read it. She may not have.

    2. The brief does not mention the fact that a persecutor could have “multiple central reasons.” See Oliva v. Lynch, 807 F.3d 53, 59 (4th Cir. 2015)(“persecution may be on account of multiple central reasons”).

    3. There is a difference between “the central reason;” “a central reason;” and “at least one central reason.”

    INA § 208(b)(1)(B)(i) provides that an asylum applicant must establish that one of the five enumerated grounds was or will be “at least one central reason” for the persecution. Congress considered, but rejected, this language: “the central reason.” Congress also considered, but rejected, this language: “a central reason.”

    “The” central reason suggests a 51% reason; the main, or dominant reason.

    “A” central reason suggests there could be more than one “central” reason. If there are two “central” reasons, then each could be a “50%” reason. The phrase “a central reason” is confusing, and somewhat self-contradictory.

    Congress rejected the above formulations. Congress chose this phrase: “at least one central reason.” It must mean something different from the above, because of rule against superfluities: every word in a statute must be given meaning. The phrase “at least” must be given a meaning. I believe the phrase “at least one central reason” means that there could be three “central reasons” for an act. To say there are three “central” reasons, however, is confusing and somewhat self-contradictory. Three equally important reasons means that each reason is 33% of the total. If a reason is only 33% of the total, how is it “central”? Yet, Congress chose the words it chose. We must apply and interpret the text of the statute.

    A persecutor might say, “I harmed the applicant for three equally important reasons:
    1] because of his religion; 2] because he was rich; and 3] because I wanted to show off for my girlfriend.”

    If so, 33% of his motivation was due to religion; 67% was due to other factors. So, religion is less than 50% of the total. It is less than the other factors. It is not dominant. However, is it “minor”? “incidental”? “tangential”? No, because it is a “central” reason.

    4. The brief, dated April 21, 2016, does not mention some troublesome cases:

    -Salazar v. Lynch, 2016 WL 1358589 (2d Cir. April 6, 2016) (mothers of young males who resist forcible gang membership is not a cognizable group, because it has already been rejected by Matter of S-E-G-, 24 I&N Dec. 579, 586-88 (BIA 2008), which held that “family members” of youth who resist gangs is not a cognizable group).

    -Granada-Rubio v. Lynch, 814 F.3d 35, 39 (1st Cir. February 24, 2016) (Respondent had a husband, living and working in the United States. A gang demanded “rent” from respondent, telling her they knew she had the capacity to pay, due to her husband. “Women with children whose husbands live and work in the U.S.” is not a cognizable group, because it is not socially distinct.)

    -Aguinada-Lopez v. Lynch, 2016 WL 3176 422 (8th Cir. June 7, 2016) (Respondent had a cousin, named Oscar, who was a member of a gang. Respondent was knocked off his bike, and threatened with a gun by an attacker who said, “You’re that rat Oscar’s cousin.” “Family of gang member” is not a cognizable group.)

    -Garcia-Milian v. Lynch, 2016 WL 336 1474 (8th Cir. June 17, 2016) (Gang shot uncle, because he would not pay money. Gang told the “family” that if they did not pay, the gang would shoot each person “one by one.” Respondent-niece loses, because “it is unclear” whether the gang meant the niece’s “nuclear family, her uncle’s family, or their entire extended family.”)

    Reprinted with permission.


    About The Author

    David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

      Posting comments is disabled.

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