Asylum Officer Training Materials on "Nexus-Particular Social Group" Released by The USCIS in Response to a Freedom of Information Lawsuit

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US-CIS recently released asylum officer training materials: a 59-page Training Module, entitled “Nexus-Particular Social Group,” dated July 27, 2015, is available at the “Asylum Officer” page of the Louise Trauma Center. http://louisetrauma.weebly.com/. Also released was a 14-page PowerPoint update, dated February 21, 2016.

The Training Module was released in settlement of a Freedom of Information Act lawsuit filed by Catholic Charities of Washington DC.

Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 1993) is cited at page 11 of the Training Module, for the proposition that some innate characteristics, such as family relationships, cannot be changed. [The Fatin case is often cited in lesson plans and training modules]. It is also cited on page 25 and 27. “Iranian women who refuse to conform to the government’s gender-specific laws and social norms” could be a cognizable social group. Fatin, at 1241. “Iranian women who find [gender-specific] laws so abhorrent that they refuse to conform, even though…the routine penalty for noncompliance is lashes, a year’s imprisonment, and in many cases, brutal rapes and death” could be a social group. Id.

Socially distinct within the society in question

To be a cognizable particular social group, the group must be “socially distinct.” Page 10. To determine if Guatemalan widows are socially distinct, “you could research whether the Guatemalan government has laws and policies addressing the needs of widows, and whether NGOs have assistance programs helping widows.” Page 13.

Is the group protected within a society? Are there songs or poetry about the group? Page 13. Are there criminal laws designed to protect the group? Page 29.

Perhaps this is a good social group: “Chinese daughters [who are] viewed as property by

virtue of their position within a domestic relationship.” Hui v. Holder, 769 F.3d 984, 985 (8th Cir. 2014). Page 30.

Must be defined with particularity

“The group must be discrete and have definable boundaries.” Page 15.

Survivors of rape may be mistreated by society: they may be ostracized “or be more vulnerable to further harm as a result of their past harm.” Page 18. A child may have been forced to be a soldier just because the Army wanted members; hence his past harm was not account of a protected characteristic; but, because he is now a former child soldier, he may be at risk for future harm, due to his particular social group. Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003). Page 18-19.

Persons with a certain dialect and accent, who have surnames which make them identifiable, who live in a certain region of the country, could be a cognizable group. Page 23, Note 74.

Age has been considered “immutable.”

Age is not strictly immutable, but it is something “not within one’s control.” Page 23. “Young Albanian women who live alone” could well be a particular social group, according to Cece v. Holder, 733 F.3d 662, 673 (7th Cir. 2013)(en banc). Page 24.

Widows

“Cameroonian widows” are a particular social group, partly because Cameroonian society perceives them as such, and because the discrimination against them is pervasive. Pages 26-27. Social distinction “also may demonstrated by laws providing benefits to widows, government or non-government programs specifically targeted to widows…” Page 27.

Domestic violence

“Married women in Guatemala who are unable to leave their relationship” is a cognizable group. Matter of A-R-C-G-, 26 I&N Dec. 388, 390 (BIA 2015). Page 29. Evidence of social distinction would include “whether the society in question recognizes the need to offer protection to victims of domestic violence, including whether the country has criminal laws designed to protect domestic abuse victim, whether those laws are effectively enforced, and other sociopolitical factors.” 26 I&N Dec. at 394.

Not being married does not defeat a claim, necessarily. The DHS supplemental brief in Matter of L-R-, April 13, 2009, which argued that an unmarried woman, in a relationship for two decades, deserved protection, “continues to represent the DHS position.” Page 29.

“Women who are viewed as property by virtue of their position within a domestic relationship” can be a social group. Page 29, citing the DHS brief of April 13, 2009. [this was repeated in a power point slide in February 2016, at page 66.]

“Chinese daughters [who are] viewed as property by virtue of their position within a domestic relationship” could well be a cognizable group. Hui v. Holder, 769 F.3d 984 (8th Cir. 2014). Page 30. However, this applicant was denied asylum, because she became older and moved away from her mother. This was a fundamental change in circumstances. [this was repeated in a PowerPoint slide in February 2016, at page 68.]

“Because of the stigma attached to rape, it is unusual for a woman to have documentary evidence, such as medical or police reports, documenting the rape.” Page 61. Many rape victims are reluctant to seek medical assistance or to file police reports “because they do not want it known that they were raped.” Page 61.

Children keep getting older

A child cannot change her age at the time of persecution. Page 31. When an applicant is a child at the time of the asylum interview, the applicant remains dependent on caregivers, so there is “no obvious fundamental change in circumstances.” Page 33. However, becoming an adult may well be a change in circumstances. If abuse is continuing, and the applicant continues “to be in a subordinate and vulnerable status…there would generally not be a fundamental change in circumstances.” Page 33.

Former police officers

Being a former police officer is immutable; but a former officer who suffers harm at the hands of a criminal seeking revenge is not entitled to asylum. Interpretive Memo [1/12/07]. Page 40. However, some courts of appeals have suggested that a former officer could win asylum. Pages 40-41.

Witnesses who testify in court or who assist law enforcement

Many courts have held that witnesses who testify in court against gang members may be a cognizable group. Page 46-47. Three cases on these pages were repeated on a powerpoint slide at page 71:

Garcia v. Att’y Gen., 665 F.3d 496, 504 (3d Cir. 2011) (“civilian witnesses who have the shared past experience of assisting law enforcement against violent gangs that threaten communities in Guatemala”);

Gashi v. Holder, 702 F.3d 130, 137 (2d Cir. 2012) (“cooperating witnesses who met with war crimes investigators”);

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1097 (9th Cir. 2013) (en banc) (“witnesses who testified in court against gang members in El Salvador”).

But, some courts deny asylum, ruling that such cases only involved “personal vendettas.” Page 48. Two courts rejected groups involving youth who reported gang threats or gang beatings: Garcia v. Holder, 746 F.3d 869 (8th Cir. 2014), and Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2012). Page 72.

Two courts have rejected claims involving informants who help U.S. law enforcement: Martinez-Galarza v. Holder, 782 F.3d 990, 993 (8th Cir. 2015); Costa v. Holder, 733 F.3d 13,17 (1 st Cir. 2013).

Family members who are targeted by gangs

A PowerPoint slide at page 69 lists three cases finding a nexus, and one case finding no nexus.

Former gang members

“Former members of the Mara 18 gang in El Salvador who have renounced their gang membership” is not sufficiently particular to be a social group. Matter of W-G-R-, 26 I&N Dec. 208, 209 (BIA 2014). However, there is case law to the contrary. Page 58.

Comments by the author

There is very little about “nexus” in these materials.

“Former police officers” have had difficulty winning asylum. In Martinez-Avelar v. Lynch, 649 Fed. Appx 575 (9th Cir. 2016), gang members beat up an officer who also owned a store, and demanded information about the prosecution of a gang member. The gang wanted information; the gang did not impute an “anti-gang” political opinion to him, ruled the Court.

In Ayala v. Holder, 640 F.3d 1095, 1098 (9th Cir. 2011), the evidence demonstrated that former officer was shot at and threatened because he had arrested particular criminal, not on account of his status as a former police officer.


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.