Training of Immigration Judges June 2021 [Part 2 of 3]

by David L. Cleveland

Immigration Judges were given training in June 2021. In response to a FOIA request by the Louise Trauma Center, 884 pages were released.

 This article will summarize pages 303-637. The pages are available on the FOIA page at www.louisetrauma.weebly.com, marked as “IJ June 2021 pages 303-637.”

Gender-Related Persecution [begins at page 3 of 335]

The UNHCR published Guidelines on Gender Persecution on 7 May 2002.

Paragraph 26: “There is some overlap between the grounds of religion and political opinion in gender-related claims, especially in the realm of imputed political opinion. While religious tenets require certain kinds of behaviour from a woman, contrary behaviour may be perceived as evidence of an unacceptable political opinion.”

Paragraph 31: “The size of the group has sometimes been used as a basis for refusing to recognize 'women' generally as a particular social group. This argument has no basis in fact or reason, as the other grounds are not bound by this question of size. There should equally be no requirement that the particular social group be cohesive or that members of it voluntarily associate,' or that every member of the group is at risk of persecution." [page 9 of 335]

Paragraph 32: “...Political opinion should be understood in

the broad sense, to incorporate any opinion on any matter in which the machinery of State, government, society, or policy may be engaged. This may include an opinion as to gender roles. It would also include non-conformist behaviour which leads the persecutor to impute a political opinion to him or her.”

GUIDELINES ON INTERNATIONAL PROTECTION NO. 2:

 "Membership of a particular social group"

Paragraph 15:”It is widely accepted in State practice that an applicant need not show that the members of a particular group know each other or associate with each other as a group. That is, there is no requirement that the group be ‘cohesive.' The relevant inquiry is whether there is a common element that group members share. This is similar to the analysis adopted for the other Convention grounds, where there is no requirement that members of a religion or holders of a political opinion associate together, or belong to a ‘cohesive’ group.”

[page 16 of 335]

Size is not relevant

Paragraph 18: “The size of the purported social group is not a relevant criterion… This is true as well for cases arising under the other Convention grounds. For example, States may seek to suppress religious or political ideologies that are widely shared among members of a particular society - perhaps even by a majority of the population; the fact that large numbers of persons risk persecution cannot be a ground for refusing to extend international protection where it is otherwise appropriate.”

Paragraph 19: “Cases in a number of jurisdictions have recognized ‘women’ as a particular social group.”

[page 16 of 335]

Paragraph 22: “There may also arise situations where a claimant may be unable to show that the harm inflicted or threatened by the non-State actor is related to one of the five grounds. For example, in the situation of domestic abuse, a wife may not always be able to establish that her husband is abusing her based on her membership in a social group, political opinion or other Convention ground. Nonetheless, if the State is unwilling to extend protection based on one of the five grounds, then she may be able to establish a valid claim for refugee status: the harm visited upon her by her husband is based on the State's unwillingness to protect her for reasons of a Convention ground. [page 17 of 335]

Change in circumstances in the country of origin  begins on page 21 of 335.

Internal relocation begins on page 27 of 335

 “Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?” [page 31 of 335].

Serious non-political crime discussion begins at page 38 of 335.

Religion begins at page 43 of 335.

Paragraph 30: “As indicated in paragraph 9 above, individuals may be persecuted on the basis of their religion even though they have little or no substantive knowledge of its tenets or practices. …Over time, communities may adapt particular religious practices or faith to serve their own needs, or combine them with their more traditional practices and beliefs, especially where the religion has been introduced into a community with long-established traditions. For example, the claimant may not be able to distinguish between those practices which are Christian and those which are animist.”

[page 50 of 335].

Child asylum claims begin at page 65 of 335.

The last sentence of paragraph 11 states:” When the parent or caregiver of a child has a well-founded fear of persecution for their child, it may be assumed that the child has such a fear, even if s/he does not express or feel that fear.”

[page 69 of 335]

Sexual orientation begins on page 85.

On page 88, footnote 20 cites cases from New Zealand, Australia, and Canada.

“An intersex person may identify as male or female, while their sexual orientation may be lesbian, gay, bisexual, or heterosexual.”[page 89 of 335]

Claims related to military service begins at page 105

Paragraph 53: “The political opinion ground may be relevant

in other circumstances. For instance, a refugee claim by a soldier who becomes aware of and objects to criminal activity being conducted or tolerated by military personnel in the context of a conflict, such as the illicit sale of weapons, extortion of civilians or trafficking of drugs or in persons, and who fears persecution as a result of his or her opposition to such activities, may be considered under the political opinion ground. Whether or not the soldier is a whistle-blower, attempts to flee military service may be perceived by the authorities as evidence of political opposition.”

Paragraph 54: “Political opinion may also be the applicable ground in relation to family members of a conscientious objector, draft evader or deserter who is identified by the State or non-State armed group as having an allegiance to a particular political cause. In such cases, persecution may be linked to imputed political opinion, on the basis that the family member is assumed to hold similar views as those ascribed to the conscientious objector, draft evader or deserter.”

[page 118 of 335]

Claims related to “situations of armed conflict and violence” begins at page 135 of 335.

Court of Justice of the European Union decisions are cited twice on page 140 of 335.

Gang violence

Paragraph 84: “People fleeing gang violence or violence by organized criminal groups may meet the refugee criteria…”

[page 156 of 335]

Religion-based claims begin at page 199 of 335.

Paragraph 14: “....What, for example, happened to the claimant's friends and relatives, other members of the same religious group, that is to say to other similarly situated individuals,’may well show that his [or her] fear that sooner or later he [or she] also will become a victim of persecution is well-founded.’" [page 203 of 335]

Report on International Religious Freedom by Department of State begins at page 211 of 335.

Juvenile cases begin on page 213.

Service of NTA on minors under age 14 “shall be made upon the person with whom the..minor resides…” [page 230 of 335]

Reno v. Flores, 507 U.S. 292,309 (1993)held that, in the immigration context, minors aged sixteen or seventeen are not "too young or too ignorant to exercise" their right to make a revocable waiver of a removal or deportation hearing.

[page 232 of 335]

Special Immigrant Juvenile

“In addition to expanded benefits, there is a significant limitation that applies to those who are in SIJ classification who adjust to LPR status in that they cannot petition for an immigrant visa on behalf of their natural parents, even if they are still living with one parent who was not responsible for their abuse, abandonment, or neglect. INA § 101(a)(27)(J)(iii)(II), 8 U.S.C. § 1101(a)(27)(J)(iii)(II). Therefore, the child's immigration situation may remain a bit precarious because of the uncertainty that may linger regarding a parent's immigration status.” [page 237 of 335]

Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007) held “that injuries to family must be considered from the perspective of a child asylum applicant. Injuries to a minor asylum applicant's family must be considered from the child's perspective in determining whether the child suffered past persecution. While the Ii did acknowledge that the aliens were 7 and 9 at the time of their family's persecution, the IJ failed to look at the events from the children's perspective, and failed to measure the degree of their injuries by the impact of these events on children of their ages.” [page 241 of 335]

Matter of S-A-, 22 l&N Dec. 1328 (BIA 2000)found “that a young Muslim woman in Morocco who experienced physical and emotional abuse from her father, who followed strict Islamic beliefs, could succeed in showing a lack of government protection because she demonstrated that seeking government protection would be futile and even dangerous as the law provided unfettered power of a father over his daughter.”

[page 242 of 335]

“Street children” is not a particular social group,say 4 cases cited on page 243.

Santos-Ponce v. Wilkinson, 987 F.3d 886 (9th Cir. 2021) found “that the PSG consisting of ‘minor Christian males who oppose gang membership’ was not defined with sufficient particularity and that it has not been shown to be socially distinct within Honduran so as to constitute a cognizable PSG.”

Tobar-Ramirez v. Garland, No. 18-73158, 2021 WL 1157850 (9th Cir. Mar. 26, 2021) (unpublished) (The Board improperly rejected noncitizen's proposed PSG, namely "abandoned children who have been targets of gangs, and government cannot protect them," where the Board's conclusion that group was impermissibly circular could not be reached summarily merely because proposed group mentioned harm) [page 246]

= = = = = = = = =

Operating Policies and Procedures Memorandum 17-03: Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children dated 12-20-17 begins at page 251.

LEGAL ADVOCACY BY NON-REPRESENTATIVES IN IMMIGRATION COURT by

James R. McHenry III, Director, dated November 21, 2019 begins at page 262.

A nice chart: Forms of Relief available to Juveniles is at page 267. It mentions SIJS; VAWA, T-Visa; U-visa, asylum and DACA.

Office of the Ombuds begins at page 269. 

Sexual Harassment Prevention begins at page 286.

Comments of the author

Each IJ is in her own circuit, and is bound by that circuit’s decisions. It seems like no effort was made to distinguish between circuits. There were few cases cited from the years 2020 and 2021.

More pages were devoted to UNHCR than to American case law.


About The Author

David L. Cleveland was the Chair of the AILA Asylum Committee [2004-05] and has secured asylum or withholding for persons from 48 countries. Based in Washington DC, he is available at <1949.david@gmail.com>


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