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Nolan Rappaport
(1) Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was wrongly decided and should not have been issued as a precedential decision.
(2) An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate:
(1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and
(2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.
(2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.
(3) An asylum applicant has the burden of showing her eligibility for asylum. The applicant must present facts that establish each element of the standard, and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of those elements.
(4) If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.
(5) The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.
(6) To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.
(7) An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.
(8) An applicant seeking asylum based on membership in a particular social group must clearly indicate on the record the exact delineation of any proposed particular social group.
(9) The Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum
Read more at http://cdn.cnn.com/cnn/2018/images/06/11/3929.pdf
Posted by Nolan Rappaport
If Nolan thinks it should have been, and I am not clear about his views in this point, maybe he should have that argument with the Attorney General. I will stay out of the way in that event.
Without doubt, the issue of what constitutes a particular social group in asylum law is a highly complex and contentious issue, with decisions going in many different directions in the past, as Sessions himself points out in his decision. Again, with the greatest respect to Nolan, he may possibly be making this issue seem far more simple than it really is, in his comments above.
Neither Sessions nor Trump has had any problem identifying American victims of MS-13 gang violence as a distinct social group, when they can so so for the purpose of demonizing all Hispanic immigrants as criminals.
But when it comes to protecting thousands of vulnerable Central American women and children from gang violence in their countries which is just as horrible as MS-13 is in the US, then, suddenly it turns out - according to Sessions - that they are not a distinct social group entitled to any protection under US law.
As I have stated above, there is only one word for that - hypocrisy- which reeks to high heaven.
Sorry if I am being less than polite about Sessions' decision on this issue.
Roger Algase
Attorney at Law
I repeat: I can't teach Roger asylum law in brief comments. The subject is far too complicated. He can get a good introduction to the subject by reading the CRS memo on asylum law. https://fas.org/sgp/crs/homesec/R41753.pdf
Incidentally, I am working on an analysis of the decision for the Hill with only two more days to finish it. Maybe my analysis will be easier to understand than Sessions' decision.
I don't understand why he published a complicated, 31-page decision as a guide on what the term "particular social group" means.
It's so long that he probably didn't have time to read it himself.
Nolan Rappaport
Roger Algase
Attorney at Law