Particular Social Groups and Convention Against Torture
The State of the Case Law in the Ninth CircuitBy Sabrina Damast and Megan Brewer
PSG: witnesses against gang members in El SalvadorReserved the question of whether particularity and social visibility are valid criteria
Henriquez-Rivasv. Holder, 707 F.3d 1081 (9th Cir. 2013)
PSG: wealthy, educated landowners in Colombia and MexicoCountry conditions evidence demonstrates that FARC targets wealthy landowners in Colombia and that cartels in Mexico target families who have been land owners for generationsRejected the BIA’s determination that the proposed group was too diverse or broad to be sufficiently particularized with regard to other characteristics (other than land ownership)If landowners areper sea social group under BIA precedent, the addition of another characteristic (wealth or educational level) does not undermine the validity of the group
Cordovav. Holder, 726 F.3d 1106 (9th Cir.2013)
W-G-R-proposed social group: former members of the Mara 18 gang in El Salvador who have renounced their gang membershipM-E-V-G-proposed social group: Honduran youth who have been actively recruited by gangs but who have refused to join because they oppose gangs
Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) andMatter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)
Does not require “ocular” visibility in society – as such, renamed to “social distinction.”Instead, it requires that the society in question perceive the proposed social group as a group.Persecutor’s perception may be relevant, but is not sufficient to demonstrate requisite distinction.Persecutor’s actions may cause the individuals in the group to “experience a sense of ‘group’” and for society to perceive the group as distinct in some manner.
Clarification of the Social Visibility Requirement
Country conditions reports, expert witness testimony, and press accounts of discriminatory laws and policies, historical animosities, and the like may establish that a group exists and is perceived as ‘distinct’ or ‘other’ in a particular society.
Other Evidence of Social Distinction
Particularity is a question of delineation, meant to set an outer boundary on the membership of a proposed group.
Clarification of the Particularity Requirement
The Board recognized in bothW-G-R-andM-E-V-G-that both social distinction and particularity must be analyzed in the context of the society in question, and thus, a group that is not cognizable in one society may still be cognizable in another.
Society-Specific Nature of the PSG Analysis
Group is too diffuse, broad, and subjective to meet the particularity requirement because it “could include person of any age, sex, or background. It is not limited to those who have had a meaningful involvement with the gang and would thus consider themselves – and be considered by others – as ‘former gang members.’”BIA also found that it lacked social distinction
Outcome ofW-G-R-(former gang members)
Board made it pretty clear that it doesn’t think that widespread gang violence will serve as a ground for asylum. “Although certain segments of a population may be more susceptible to one type of criminal activity than another, the residents all generally suffer from the gang’s criminal efforts to sustain its enterprise in that area. A national community may struggle with significant social problems resulting from gangs, but not all societal problems are bases for asylum.”Board noted that it was not rejecting all factual scenarios in gangs because PSG determinations must be made on a case by case basis.Board remandedM-E-V-G-, most likely because the Third Circuit had previously rejected the Board’s definition of social visibility as unreasonable, and now the Board wanted to see if its new definition of social distinction would withstand scrutiny
Outcome ofM-E-V-G-(young men resisting gang recruitment)
IJ foundPirir-Bocto be a member of the group of individuals who took concrete steps to oppose gang membership and gang authority because he persuaded his brother to leave the gang and refused to join the gang. By doing so, he “allied himself with a particular social group of persons directly in opposition to gang activities and gang membership.” This group includes individuals who participate in concerted efforts in Guatemala to combat gang violence.The Board reversed theIJ’sdecision, finding the proposed group not meaningfully distinguishable from the one rejected inMatter of S-E-G-(youths who have resisted gang recruitment).
Pirir-Bocv. Holder, 750 F.3d 1077 (9th Cir. 2014)
The Ninth Circuit rejected the Board’s decision, noting that the Board “may not reject a group solely because it had previously found a similar group in a different society to lack social distinction or particularity, especially where . . . it is presented with evidence showing that the proposed group may in fact be recognized by the relevant society.”Evidence of social distinction may include evidence that a given society has adopted strategies for combating gang violence (i.e. anti-gang legislation, social rehabilitation programs, and gang prevention programs) that would result in social recognition of a proposed group.The Ninth Circuit tacitly approved of theIJ’sfindings onPirir-Boc’sPSG, noting that the “concrete and open stepsPirir-Boctook in opposition to the gang may fall within the framework” of its decision inHenriquez-Rivas.
Pirir-Bocv. Holder, 750 F.3d 1077 (9th Cir. 2014)
Board applied the revised social distinction and particularity requirements to the group comprised of “married women in Guatemala who are unable to leave their relationship.”Shared immutable characteristics: gender AND inability to leave a marriageParticularity: the terms “married,” “women,” and “unable to leave the relationship” have “commonly accepted definitions within Guatemalan society.”Social distinction: relevant evidence includes “whether the society in question recognizes the need to offer protection to victims of domestic violence, including whether the country has criminal laws designed to protect domestic abuse victims, whether those laws are effectively enforced and other sociopolitical factors.” In this case, there was “unrebuttedevidence that Guatemala has a culture of ‘machismo and family violence,” and that there is a lack of police protection for victims of domestic violence.
Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)
Family is the “quintessential social group,” even under the refined framework articulated inM-E-V-G-andW-G-R-.Recognized that persecutors are more likely to identify individual family members as part of a PSG when familial ties are linked to race, religion, or political affiliation, but declined to hold that the family social group must be intertwined with another protected ground to be cognizable.
Flores Riosv. Lynch, --- F.3d ----, 2015 WL 7729563 (9th Cir. Dec. 1, 2015)
8 CFR § 1208.16(c)(2): “morelikely thannot”thatapplicant willbetortured.CAT: “substantialgrounds forbelieving”that he would be in danger of being subjected totorture.Rodriguez-Molinerov. Lynch, N. 15-1860, A075-614-869, (7thCir. Dec.17, 2015): “more likely than not” cannot be taken literally because it would contradict the Convention and because there is no data and statistical methodology to determine whether the applicant has at least a 50.1 % chance of being tortured.
CAT Burden of Proof
Maldonado v. Lynch,786 F.3d 1155 (9th Cir. 2015): internalrelocation must be considered, but it is neither the applicant’s burden to prove it is impossible, nor does the burden shift to thegovernment.Quijada-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir.2015): BIAmust consider all relevant evidence of risk of torture, including familyaffiliation.
Consideration of All Relevant Evidence
Andrade v. Lynch, 798 F.3d 1242 (9th Cir.2015)Affirmingdenial of CAT where BIA took note of tattoos, petitioner was not a former gang member, and tattoos were notgang-related.ContrastingwithCole v. Holder, 659 F.3d 762 (9th Cir. 2011), where expert witness testified that Honduran former Crips member had 75% chance of being killed by police or vigilantes because of his gang-relatedtattoosAvendano-Hernandez v. Lynch, 800 F.3d 1072, 1082 (9th Cir. 2015)BIA erroneously concluded that petitioner had not suffered past tortureBIA misapplied country conditions evidence of legislation affecting gay men and lesbians and failed to consider evidence of violence against transgender womenBIA misread the record in concluding that police abuses against transgender women only occurred in the context of drug trafficking
Consideration of All RelevantEvidence
Madrigal v. Holder, 716 F.3d 499 (9thCir. 2013)“Viewed in context, [the petitioner]’s belief thatthe… incidentsare attributable to Los Zetas is more than pure speculation.”“Becausehis explanation forthe… eventsis plausible and supported by circumstantial evidence, it must be credited in the absence of an explanation that is at least asplausible”Garcia v. Holder, 756 F.3d 885, 887-88 (5th Cir. 2014)“Based on the sequence of events, one possible conclusion is that the men who threatened and beat Garcia on each occasion were either police officers or other men working in concert with some other governmentsource...If there were public officials supplying the perpetrators with information that they obtained as part of their official duties, government acquiescence could be shown.”“the alleged active involvement of public officials acting in their official capacity and the close temporal proximity between Garcia's contact with public officials and the subsequent threats and beatings support his assertions and warrant further review.”
Role of Circumstantial Evidence
Severity of harmIntentCustody or physical controlNot lawful sanctionsTorturer is a public official acting in an official capacity OR torture is inflicted at the instigation of or with the consent or acquiescence of a public official acting in an official capacity8C.F.R. § 1208.18
Elements of Torture
CAT: “anyact by which severe pain orsuffering… isintentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of anykind”8 CFR § 1208.18(a)(5) “Inorder to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. An act that results in unanticipated or unintended severity of pain and suffering is nottorture.”Villegasv.Mukasey,523F.3d 984,989 (9th Cir. 2008) : “wehold that to establish a likelihood of torture for purposes of the CAT, a petitioner must show that severe pain or suffering was specifically intended-that is, that the actor intend the actual consequences of his conduct, as distinguished from the act that causes these consequences.”
Azanorv.Ashcroft, 364F.3d1013(9th Cir. 2004)(no need to show that torture would be underpublic officials' custody or physicalcontrol; apetitioner may qualifybyshowing that hewouldsuffer torture while underprivate parties'custodyor physicalcontrol)What is custody or physical control?Not being gassed by fumigants targeting drug cropsArias v.Dyncorp, 517F.Supp.2d221(D.D.C. 2007)Not being subjected to Agent Orange in VietnamIn re Agent Orange Product LiabilityLitigation, 373F.Supp.2d 7,112(E.D.N.Y. 2005)Comollariv.Ashcroft, 378F.3d 694,697(7th Cir. 2004): “Probablymore often that not the victim of a murderer is within the murderer's physical control for at least a short time before the actual killing, but that would not be true if for example the murderer were a sniper or a car bomber.”
Custody or Physical Control
Habtemicaelv.Ashcroft, 370F.3d774(8th Cir. 2004)IJ should have considered whether the sanctions imposed on military deserter were imposed by a legitimate government authority
Rodriguez-Molinerov. Lynch, N. 15-1860, A075-614-869, (7th Cir December 17, 2015)IJ erred in considering whether police officers who torture the petitioner were “rogue officers.”“Itis irrelevant whether the police were rogue (in the sense of not serving the interests of the Mexican government) or not. The petitioner did not have to show that the entire Mexican government is complicit in the misconduct of individual police officers.”
Torturer is a Public Official Acting in an Official Capacity
Madrigal v. Holder, 716 F.3d 499, 509 (9thCir. 2013).“Although the public official must have awareness of the torturous activity, he need not have actual knowledge of the specific incident of torture. Acquiescence also does not require that the public official approve of the torture, even implicitly. It is sufficient that the public official be aware that torture of the sort feared by the applicant occurs and remain willfully blind toit”“Importantly, an applicant for CAT relief need not show that the entire foreign government would consent to or acquiesce in his torture. He need show only that ‘a public official’ would soacquiesce.”
Instigation, Consent, or Acquiescence