Immigration Judge Grants Asylum To A Woman From Liberia Who Was A Member Of A Particular Social Group: "Women Who Had Been Captured During A War And Used As Sex Slaves"

by David L. Cleveland

Immigration Judge Lisa Dornell granted asylum to a woman from Liberia, who had been repeatedly raped, in a 22-page Decision dated May 17, 2012. [Baltimore MD Immigration Court; a redacted Decision is available at bibdaily.com, and is posted as AILA document 1208-3061]. No appeal was taken.

Facts

One day, during a civil war in Liberia, respondent was captured by some rebels. There is no evidence in the Court's opinion as to why she was captured. She was held for nine months and raped violently by one rebel, Mr." X.". As a result, she became pregnant and had a son. The war ended in 2003. In 2006, respondent "gave" her son to another man, her fiancé. Mr. X discovered this, and became angry. One night, when respondent was absent, Mr. X and other armed men went to respondent's house, shot their guns, and looked for respondent.

She tried to report the threat to the police, but they were afraid of "ex-soldiers" and did nothing.

Here in the United States, she often cried and had trouble sleeping. She was afraid to go outside, and had frequent flashbacks. A psychologist testified that respondent had Post Traumatic Stress Disorder, that she was credible and was not malingering.

Inconsistencies can be excused because respondent was suffering emotional distress and because her cousin pressured her to quickly file her asylum application

Respondent omitted some events from her asylum application and signed it without reviewing it. She submitted a birth certificate, listing her present husband as the father of her son, even though he was not the father and even though they had not gone through a formal adoption process. The Ministry of Health issued the birth certificate with the incorrect name for the father, because respondent's father [the grandfather of the boy] had requested them to do so.

The Court found respondent to be credible, because the inconsistencies "were the result of mistake, time constraints, and severe mental and emotional trauma rather than a lack of truthfulness." [Opinion at 17.] Respondent's trauma "prevented her from thinking clearly while preparing the application and her cousin drafted it for her while pressuring her to submit it as quickly as possible." Id.

The Court noted that an applicant may be given the "benefit of the doubt" if there some ambiguity regarding an aspect of her claim, citing Matter of Y-B-, 21 I&N Dec. 1136, 1139 (BIA 1998). [Opinion at 11]

The Court opined at page 17 that respondent suffered past persecution "on account of her membership in the particular social group of Liberian women who were captured during the war and used as sex slaves." Being violently raped is real harm. The Court, however, did not ask or discuss the question as to why she was captured and raped. Was respondent captured and raped merely because she was in the wrong place at the wrong time? She certainly was not captured because she was a member of a group of women who already had been captured.

"Liberian women who were captured during the war and used as sex slaves" is a cognizable particular social group.

There are three criteria for a particular social group: "(1) its members share common, immutable characteristics, (2) the common characteristics give its members social visibility, and (3) the group is defined with sufficient particularity to delimit its membership. Lizama v. Holder, 629 F.3d 440, 447 (4th Cir. 2011)…" [Opinion at 13].

Gender, nationality, and a past shared experience are things which are immutable.

This group is "easily recognized by others in their community" as sex slaves; hence, they have social visibility.

Members of society recognized this group as a "discrete class of persons," hence, the group has particularity.
[Opinion at 18-19.] A particular social group should not be defined by the harm the group suffered; however, "the fact that the respondent had already undergone certain harm placed her in a particular social group which served as the motivating factor for subsequent persecution." [Opinion at 17, emphasis supplied].

These women were viewed by society as "separate from the other women" and face ostracism. They face "isolation" and "economic challenges." [Opinion at 19.]

"Liberian women who were sexually enslaved by soldiers, bore children as a result of rape, and escaped from their enslavement" is a particular social group.

The Court opined that respondent had a well-founded fear of future harm, on account of her membership in this social group: "Liberian women who were sexually enslaved by soldiers, bore children as a result of rape, and escaped from their enslavement" is a particular social group. [Opinion at 20.]

There is evidence of record that former soldiers who fathered children through rape later abducted those children from the care of the mothers. "Women who have attempted to report their attackers have received threats." [Opinion at 21.] Furthermore, violence against women, "including sexual and domestic violence, continues to be prevalent in Liberia." Id.

Harm includes mental and emotional injury, unavailability of medical care, and "social and cultural constraints."

The best kind of harm to have suffered is physical harm. However, there are other kinds of harm which were mentioned in Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). For example, the BIA noted that "psychological harm," and "mental or emotional harm," are relevant. [Opinion at 15].

"Extreme economic deprivation," the "unavailability of needed medical care," the "unavailability of psychiatric medications," "ongoing human rights abuses," and "social and cultural constraints" are relevant. Id.

Comments of the author

1. Why did Mr. X capture respondent?

There is no evidence that Mr. X knew anything about respondent on the day he captured her. She was just a woman, in the neighborhood. Mr. X would have captured any young woman, presumably. The Court in this case was silent on this issue; your Court may not be.

Many victims of rebels are denied asylum. For example, consider the FARC: a powerful rebel group in Colombia. Rodriguez-Morales v. United States Att'y Gen., 488 F.3d 884 (11th Cir. 2007) (man threatened because he refused to provide dental services was denied asylum).

Is respondent merely the victim of a crime?

Many rape victims are denied asylum. Parussimova v. Holder, 555 F.3d 734 (9th Cir. 2009) (young woman attacked on the street 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)

Respondent perhaps could have argued that she was a member of this group: "Liberian 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."]

2. After the war ended, and respondent escaped, did Mr. X torment respondent because he just wanted his son back?

Mr. X was interested in the custody of his son. Is this not a "personal" motive, having nothing to do with respondent? Mr. X would have tormented anyone who had custody of his son, wouldn't he?

It is possible that Mr. X was angry at respondent, because she had escaped from him. In that case, his motive is related to the fact that respondent was a member in this social group: "Liberian women who were sexually enslaved by soldiers, bore children as a result of rape, and escaped from their enslavement." However, the Court does not make this finding.

Mr. X wants to avoid prosecution and prison. This might motivate him to torment and threaten respondent. This is another "personal" motive of Mr. X. See Molina-Morales v. INS, 237 F.3d 1048 (9th Cir. 2001)(threats arising from allegations of rape constitute a personal vendetta; asylum denied)

3. Are former sex slaves really "socially visible"?

The Judge states at page 19 of her Opinion that there was "evidence in the record that women who were raped and held as bush wives have been perceived as different or separate from other women and have been ostracized as a result," and cited an article from IRIN News Service.

If a woman walks down the street in Liberia in the year 2012, how does anyone know she had been raped and held as a bush wife two decades earlier? How does anyone know she is or is not a member of a particular social group?

The respondent in this case was impregnated by her rapist, and later delivered a baby boy. The rapist was interested in the boy as he grew up. Respondent's family knew what had happened to her. Perhaps the family told others. Thus, there was evidence that she, herself, was "socially visible."

Practice tips

1. Motives of persecutors change over time.

In this case, Mr. X may have initially just wanted a sex slave. Later, he wanted his son back. Or, maybe he was motivated by respondent's membership in a particular social group.

Even if your client is a member of a particular social group, your client must still prove the motive of the persecutor. Maybe lawyers are so consumed with demonstrating what is or is not a social group that they forget they must also show motive.

2. The social group must be "easily recognized by others." Many groups exist, but are its members visible? In the Mr. X case, there was evidence of record that the people in Liberia knew about, and were aware of, the social group in question.

Make sure you find evidence that the people in applicant's society are aware of, and care about, your proposed social group. 3. Ask your client if she is 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).

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 39 countries.