Friday, December 18, 2009

Reviving the "Particular Social Group"

Two recent decisions have breathed new life into the particular social group ground for asylum, expanding the doctrine to cover claims that had previously appeared all but dead. Last week, an immigration judge granted asylum to Rodi Alvarado, (pictured below right) a Guatemalan woman whose domestic violence claim has been the centerpiece of a fourteen-year struggle over whether such cases should be protected by asylum law. On Tuesday, in the Benitez Ramos case, Judge Posner of the Seventh Circuit Court of Appeals eviscerated the Board of Immigration Appeals on two crucial points of law: first, that former gang members may constitute a particular social group, and second, that the "social visibility" requirement is not only incoherently applied by the BIA but is irrelevant in determining the existence of a particular social group.
The immigration judge's decision in the Rodi Alvarado case, about which we've posted here and here, marks the end of a very long battle by a woman and her lawyer, Karen Musalo, for the right to live in a society that protects women against domestic violence. This has been an unmistakably feminist struggle to regulate the "private sphere" internationally. If asylum law is political expression, the decision to include domestic violence claims within the particular social group category says loud and clear that the right to be free of physical violence does not end at the door of one's home, and that societies that fail to protect women from such violence are not only sexist but are enabling serious human rights abuses.
The Benitez Ramos case is similarly breathtaking in its impact. Asylum has been granted rarely to those fleeing persecution by gangs (even if they were never gang members), and almost never to former gang members. Posner rips apart the faulty legal reasoning that has created this situation, noting that former gang membership is an immutable characteristic and thus meets the definition of particular social group. He adds that former gang members may be excluded or barred from asylum or withholding of removal for violent activities related to their gang membership -- but that must be determined on a case-by-case basis, and their eligibility for asylum should be determined separately. Posner also destroys the BIA's nonsensical "social visibility" test for particular social group claims, noting:
“Visibility” in the literal sense in which the Board has sometimes used the term might be relevant to the likelihood of persecution, but it is irrelevant to whether if there is persecution it will be on the ground of group membership. Often it is unclear whether the Board is using the term “social visibility” in the literal sense or in the “external criterion” sense, or even whether it understands the difference.
Whether or not Benitez Ramos ultimately wins his case, this clearheaded approach will hopefully be adopted by other federal courts of appeals and even -- who knows! -- the Board of Immigration Appeals. Stranger things have happened.
It's important to note that these are both cases from Central America; the geopolitics of asylum law has traditionally frowned upon our neighbors to the south, and has given rise to convoluted law and unlawful policy decisions. Allowing claims by victims of domestic violence and former gang members (and presumably to all those fleeing gangs) could give rise to a "fear of the floodgates" and consequent backlash. It is still the right thing, legally and morally, for the Obama Administration to issue long-awaited guidelines for asylum claims based on domestic violence and to follow Posner's lead in expanding the availability of asylum for former gang members and those fleeing gangs.

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