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  • Article: Immigration Judge Grants Asylum To a Woman from El Salvador Who Rebuffed Romance from a Gang Member by David L. Cleveland

    Immigration Judge Grants Asylum To a Woman from El Salvador Who Rebuffed Romance from a Gang Member

    by David L. Cleveland

    Immigration Judge Grants Asylum To a Woman from El Salvador Who Rebuffed Romance from a Gang Member

    -by David L. Cleveland

    Immigration Judge Amy C. Hoogasian granted asylum to a woman from El Salvador who refused to be the girlfriend of a MS-13 gang member, in a 16-page Decision dated November 7, 2012.* A redacted version is available at lexisnexis communities:*http://dl.dropbox.com/u/27924754/IJ%20Hoogasian%2011-7-12.pdf [last visited on March 10, 2013]

    “Women in El Salvador” is a cognizable particular social group, ruled the Judge.

    Facts

    In September 2009, respondent met a MS-13 gang member named El Crazy at a bus stop. She met him three more times that month. At first, El Crazy was merely forward and aggressive, as he asked her to be his girlfriend. But, as respondent kept on rejecting him, El Crazy became angry.* At their last meeting, he shouted “I’ll kill you.”

    Respondent did not report anything to the police, because “members of MS-13 are well-known for abusing and raping women, and the police do not help such women.” [Decision at page 4.] Respondent fled El Salvador in October 2009, and testified in court in 2011.* She admitted that El Crazy did not know her name, nor where she lived.

    Country conditions evidence

    The parties submitted “hundreds of pages of country conditions evidence.” Id* at 6. *The Immigration Judge found that the national police and the judiciary “suffered from inefficiency, corruption, political infighting, and insufficient resources.” Id. “Substantial corruption in the judiciary contributed to a high level of impunity…The criminal conviction rate was less than five percent.” Id.

    “Intimidation and killing of police officers, crime victims, and witnesses created a climate of fear complicating investigation of violent crime and alleged human rights abuses.” Id. at 7.

    “Additionally, street gang intimidation and violence against witnesses contributed to a climate of impunity from criminal prosecution.” Id. *Gang members “frequently utilize intimidation and violence against others and have been responsible for killings of police officers.” Id. at 14.

    El Salvador has one of the highest murder rates in the world.” Id.at 7 [emphasis added].

    There were also large number of femicides- “murders of women who are killed because of their gender.”* Over the last decade, the rate of femicides has increased five-fold, while the murder rate only doubled. Id.* Amnesty International and the United Nations reported on the increase of femicides. El Salvador has a “high incidence of gang-related violence.” Id. at 8.* MS-13 is becoming “increasingly sophisticated,; they have widespread and national visibility, stronger links with organized crime, expanded networks among gang members in jail, communication through web sites, and they are highly organized.” Id. A deputy police chief “told the press that gangs use higher levels of violence against women than they do men.” Id.

    Respondent was credible, but suffered no past persecution

    While it is true that persecution “may be emotional or psychological,” in this case respondent’s suffering does not rise to the level of persecution. Id. at 9.* However, respondent has established a well-founded fear of future persecution. Id. at 10.

    “Women in El Salvador” is a particular social group

    The BIA has interpreted “particular social group” as a group whose members “share a common, immutable characteristic.” Also, a group must be defined with sufficient “particularity” and have adequate “social visibility.” Matter of S-E-G-, 24 I&N Dec. 579, 582 (BIA 2008).* Id.

    In Mohammed v. Gonzales, 400 F.3d 785, 797 (9th Cir. 2005), the court held that “Somali females” could be a cognizable social group.* In Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010), the court suggested that “all women in Guatemala” could be a social group, in part because of the nationwide rise “of brutal murders of women” in that country.* Homosexuals and gypsies can be social groups; why not women? Perdomo rejected the notion that just because a group was “too large a portion of a population, the group cannot be a particular social group.” [Decision at page 11].

    “Women in El Salvador” is defined by gender and nationality. *So, this group has “particularity.” Women in that country are targeted for harm “on account of their gender.”* The country has high rates of femicide. Id.* There is an “alarming rise of murders of women and girls in El Salvador.”* So, the trait of being a female “is a motivating factor…of sexual violence…” Id.

    “Salvadoran society perceives women in El Salvador as a group.” Id. at 12.* The government has enacted laws intended to protect women from sexual violence. This demonstrates that this social group has “social visibility.”

    The DHS argued that El Crazy merely had a personal interest in respondent, or that he acted in retaliation for her refusal to accept his advances. These motives may be present, but**“the societal context …suggests that gender was a central reason.”* Id. at 12-13.* Domestic violence is widespread and women have an inferior social status.* There is evidence that gang members “use higher levels of violence against women than they do men.” Id.* The Court finds that gender is at least “one central reason” for the feared persecution.

    Rape is widespread; the government cannot protect her; “reporting to the authorities would appear futile…” Id. at 14.

    Internal relocation is not possible

    El Salvador is a small country, and the MS-13 gang has a large network of gang members throughout the country; therefore, even though El Crazy does not know her name, he could threaten people to get information. *Id. at 15.* Also, given the high rates of violence against women, “it would be unreasonable to expect Respondent to relocate to a part of El Salvador where she has no familial or social contacts to help protect her.” Id.

    = = =

    Comments of the author

    1. What motivated El Crazy?

    The DHS argued that El Crazy merely had a personal interest in respondent, or that he acted in retaliation for her refusal to accept his advances. The Immigration Judge acknowledged that these motives may be present, but found that “the societal context …suggests that gender was a central reason.’* Id. at 12-13.* If El Crazy had three motives, how do we rank order them? Each is 33% of the total? Each is a central reason? One is more central than another? How do we know?

    The Judge did not cite Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir. 2009).

    In that case, Ms. Parussimova was an ethnic Russian, who worked for an American company in the country of Kazakhstan. While walking alone on the street in Kazakhstan, she was attacked by men who called her a “Russian pig.” The court ruled there were three possible reasons for the attack: 1] ethnicity; 2] association with an American company; and 3] vulnerability to sexual assault. She was denied asylum, because she could not prove that her ethnicity was “at least one central reason” for the attack.

    Many rape victims are denied asylum:

    Cece v. Holder, 668 F.3d 510 (7th Cir. February 6, 2012) (young Albanian women in danger of being trafficked for prostitution is not a social group).* However, rehearing granted: 2012 U.S. App. LEXIS 11070 (7th Cir. May 31, 2012).

    Gjura v. Holder, 695 F.3d 223 (2d Cir. 2012) (young, unmarried Albanian women do not constitute a social group; respondent fled attempted kidnapping and forced prostitution). Accord: Rreshpja v. Gonzales, 420 F.3d 551 (6th Cir. 2005).

    1. What is the difference between “I want to have sex with you” and “I want to take your money from you”?

    Both are crimes. However, most courts have ruled that robbery victims are denied asylum.* In Matter of N-C-M-, 25 I&N Dec. 535, 536, n.1 (BIA 2011), the respondent testified he fled El Salvador because he feared criminal gangs. He claimed that the gangs were motivated by his political opinion, and also because he was a member of this particular social group: “victims of gang violence and unwilling gang recruits.”

    The Immigration Judge made findings of fact: 1] the gang had the desire to rob respondent; thereafter, the gang held a “personal grudge” because respondent resisted “their robbery attempts;”* and 2] the gang was not motivated by his political opinion.

    The BIA agreed with the Immigration Judge, and further stated that “victims of gang violence and unwilling gang violence do not describe a particular social group under the precedent of this Board and the Ninth Circuit.”

    1. Is El Crazy still interested in respondent?

    This is a very popular question in court, and a reason for asylum denials. The Immigration

    Judge found that respondent had established a well-founded fear of future persecution, but cited no real evidence for that conclusion. Is El Crazy still interested in her?* He met her four times in September 2009- four years later, what does he think? Maybe he has forgotten about her.* Maybe he has gone through five “girlfriends” in the past few years, and is presently harassing #6. *This Immigration Judge was silent; your Immigration Judge may not be. Search for evidence that the persecutor still has strong emotions about the respondent.

    1. Is respondent in a “domestic relationship she cannot leave”?

    Respondent perhaps could have argued that she was a member of this group: “Salvadoran women in domestic relationships who are unable to leave.”* This is very similar to a group endorsed by the Department of Homeland Security in its April 13, 2009 brief [available on as AILA InfoNet Doc. No. 091-216-62. [“Mexican women in domestic relationships who are unable to leave.”]

    “Women in El Salvador” is a very large particular social group. Judges outside of the

    Ninth Circuit will often be hostile to such a group.* The advocate should also argue that the client is in other groups, such as “Salvadoran women who cannot flee their domestic partner.” *

    1. A person can be a member of more than one social group.

    The Third Circuit has recognized that a woman was a member of three different particular social groups: 1] women who dated police officers; 2] dental hygiene students; and 3] “women who escaped involuntary servitude after being abducted and confined.” Gomez-Zuluaga v. Mukasey, 527 F.3d 330, 348 (3rd Cir. 2008).* The court suggested that she might prevail on some, but not all, of these groups.

    Ask your client if she is a member of more than one particular social group. Practice pointers

    *Demonstrate that your client’s group suffers more than other groups in the country. Find groups in the country which are ignored by the persecutor.

    1. Identify all possible motives of the persecutor; develop evidence about each; argue that most of the motives are tangential and unimportant.
    2. A person can be a member of more than one social group. Any person sitting in your office is a former member of a group in her country; she is also a person who has fled from her persecutor.


    About The Author

    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 41 countries.


    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
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