Update and Strategy on Domestic Violence Based Asylum Claims

Update and Strategy on Domestic Violence Based Asylum Claims
Justice Americorps Program Training Webinar Blaine Bookey, Co-Legal Director Center for Gender & Refugee Studies September 16, 2015 © Center for Gender & Refugee Studies

Root cause OF MIGRATION: domestic VIOLENCE
© Center for Gender & Refugee Studies

definitions Child abuse
Domestic violence is violence (physical and psychological abuse and neglect) that occurs in the home (or “domestic” space) Intimate partner violence At the hands of an “intimate partner” Long-term or short-term relationships included Forced marriage included Can include harms like female genital cutting Child abuse At the hands of parents or other caregivers (persons with positions of authority) At the hands of other extended family Can include witnessing abuse perpetrated against family members (e.g., spousal abuse against mother) © Center for Gender & Refugee Studies

Honduras: VIOLENCE AND VULNERABILITIES
Prevalence of Violence Against Children “Children face a range of harms at home including physical, sexual and psychological abuse, forced labor, negligent treatment and abandonment. Physical violence may include things such as hitting, kicking, beating with objects, and burning a child with hotplates….[in addition] sexual abuse and incest within the family is a common yet significantly underreported problem in Honduras.” Dr. Ubaldo Herrera Coello, Casa Alianza, Honduras Legal Framework to Prevent/Punish Child Abuse In 1996 Honduras adopted the Children’s Code and, in 1997, the Law of the Honduran Institute of Childhood and Family The Children’s Code established a legal and institutional framework for addressing violence against children; it created new rights for children and designated crimes and penalties associated with violating those rights The Children’s Code was intended to be the catalyst for a shift in cultural attitudes towards the treatment of children The situation for children has changed very little as a consequence of adoption of the Children’s Code: “Although the law has been touted as one of the most progressive in the region as written, there is an extreme lack of political will and resources to implement it.” Dr. Ubaldo Herrera Coello, Casa Alianza, Honduras © Center for Gender & Refugee Studies

EL SALVADOR: VIOLENCE AND VULNERABILITIES
Prevalence of Violence Against Children UNICEF has reported that child abuse is very widespread, with 7 out of 10 children experiencing physical abuse at home. “Corporal punishment…is accepted by large segments of society as a normal part of childrearing…many Salvadoran children have experienced…some degree of physical violence from within the family or at school in the form of being slapped, beaten, whipped with belts, tied to beds or chairs [or] made to kneel for extended periods on hard seeds that can break skin.” Sexual abuse in the home is very common, and the “vast majority of the sexual aggressors…are close male relatives of the child or youth.” Dr. Roberto Rodriguez Melendez, Universidad Centroamericana, El Salvador. Legal Framework to Prevent/Punish Child Abuse In 2009, the Salvadoran Congress enacted the Law for the Integral Protection of Children and Adolescents (LEPINA), which sets forth a range of children’s rights, and attempts to create a system of protection which is decentralized to be more accessible. The LEPINA did not go into effect immediately; the first section describing rights to which children are entitled, went into effect in April And, the sections creating a system to give effects to the rights did not begin to be implemented until January However, key elements of the system have yet to go into effect, or were found not to be possible due to budgetary allocation. Also significant is the fact that the LEPINA is not part of the criminal justice system, so it does not directly address issues of the high levels of impunity that exist for the violation of children’s rights. © Center for Gender & Refugee Studies

Guatemala: VIOLENCE AND VULNERABILITIES
Prevalence of Violence Against Children In one year alone (2010), over 11,000 children were victims of sexual abuse, 7,000 of physical abuse, and 1,152 were injured as a result of negligence. UNICEF reported that the number of cases of intra-familial violence registered in 2012 showed a more than 500 per cent increase over Abuse also takes the form of parents or extended family selling girl children into marriage, or to sex traffickers, and forcing children of both genders into child labor. Source: Interview with Dr. Eugenia Villarreal, Director of ECPAT (End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes), Guatemala. Legal Framework to Prevent/Punish Child Abuse In 1993, Guatemala enacted its law on the Integral Protection of Children, the Ley PINA. It sets forth the rights of children, and includes policies for the protection of children who are at risk. In 2009, Guatemala enacted a law against Sexual Violence, Exploitation and Trafficking in Persons. In 2010, the Committee on the Rights of the Child expressed its concern regarding inadequate implementation of the systems of protection established by the Ley PINA. The ongoing violation of children’s rights, and impunity for those violations continues to be documented. See, e.g., U.S. DOS 2013 Report on Guatemala. © Center for Gender & Refugee Studies

Domestic violence occurs in societal context
The Northern Triangle countries have some of the highest homicide rates in the world, including of children. 90.4 41.2 39.9 4.9 Source: UN Office of Drugs and Crime homicide rates per 100,000 © Center for Gender & Refugee Studies A 2013 report from the UN Office of Drugs and Crime reports homicide rates per 100,000 in 2012 as follows: Honduras (90.4) highest globally El Salvador (41.2) fourth highest Guatemala (39.9) fifth highest Devaluation of children’s lives. Honduras has the highest murder rate in the world. El Salvador and Guatemala are not far behind, at numbers four and five, respectively. To put it in perspective, the homicide rate in Honduras is 1,900% higher than that of the U.S., and the rate in El Salvador and Guatemala is 800% that of the U.S. © Center for Gender & Refugee Studies

Societal context cont. Violence against women and girls and gender motivated killings (femicides) are also extremely high World-wide Femicide Rates © Center for Gender & Refugee Studies Source: 2011, Small Arms Survey El Salvador had the highest femicide rate in the world in 2011 Guatemala had the third highest Honduras had the seventh highest Occurs within highly patriarchal societies where male dominance is asserted. © Center for Gender & Refugee Studies

Legal overview AND CHILDREN’S STANDARDS

Asylum Overview Asylum protection is available to “refugees” as defined under U.S. law A refugee is a person with a well-founded fear of persecution on account of race, political opinion, religion, nationality or membership in a particular social group. INA § 101(a)(42)(A). Elements Past “persecution” or well-founded fear of “persecution” On account of (nexus) Protected ground (race, religion, nationality, membership in a PSG, or political opinion) Failure of state to protect Internal relocation in-country not reasonable © Center for Gender & Refugee Studies

Asylum Standards for children
The same refugee definition applies to children; however, that definition should be applied from the perspective of a child. In effect, lesser burdens and standards apply to children in various respects. Credibility determination Persecution Nexus State protection Relocation Humanitarian asylum Discretion Liberal benefit of the doubt © Center for Gender & Refugee Studies

What is Persecution? Severity of Harm Required
Harm of a serious nature; more than “mere harassment”: Serious physical harm Threats to life or freedom Torture Rape/sexual assault Servitude/slavery Forced prostitution Forced child marriage Female genital cutting Emotional or psychological harm Harm or threats of harm must be considered cumulatively © Center for Gender & Refugee Studies

Persecution Standard for Children
Threshold of harm is lower for children. View harm from the perspective of the child; consider developmental issues. Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1046 (9th Cir. 2007); Kholyavskiy v. Mukasey, 540 F.3d 555, 570 (7th Cir. 2008); Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006) Persecution of family members can be relevant to whether child has been persecuted. Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007); Mendoza-Pablo v. Holder, F.3d 1308, 1315 (9th Cir. 2012) (persecution can begin even before a child is born) © Center for Gender & Refugee Studies

Well-Founded Fear Subjective Component Objective Component
Fear must be GENUINE Applicant’s state of mind Child may be unable to express actual fear Testimony of knowing adults Child may need to rely on objective evidence (UNHCR, AOBTC, DHS guidelines) Fear must be OBJECTIVELY REASONABLE A 1 in 10 chance Country conditions evidence © Center for Gender & Refugee Studies

WFF for Children Children are not to be expected to articulate their fears in the same manner as adults. Guidelines advise that very young children may be incapable of expressing fear to the same degree or with the same level of detail as an adult. See Guidelines for Children's Asylum Claims, INS Policy and Procedural Memorandum from Jack Weiss, Acting Director, Office of International Affairs to Asylum Officers, Immigration Officers, and Headquarters Coordinators (Asylum and Refugees Further, the Guidelines suggest that "children's testimony should be given liberal `benefit of the doubt' with respect to evaluating a child's alleged fear of persecution." Id. at 26. Abay v. Ashcroft, 368 F.3d 634, 640 (6th Cir.2004) (overturning, on the basis of age, IJ finding that a nine-year-old applicant had not adequately expressed a fear of future persecution) The evidence of past harm can still be used to establish the future fear – which can make it a little confusing – but past persecution and future fear are distinct analytical inquiries. © Center for Gender & Refugee Studies

“On Account of” a Protected Ground
Five Protected Grounds Nexus Race Religion Nationality Membership in a PSG Political Opinion** **Actual or imputed Must be “on account of” one of protected ground Mixed motives allowed, BUT the protected ground must be at least “one central reason” for the persecution © Center for Gender & Refugee Studies

Nexus and Children Limited understanding or information
Relevance of objective evidence Status of children in society, family Levels of certain type of harm against children, subgroups children Testimony of knowing adults can support finding of nexus Importance of country conditions experts © Center for Gender & Refugee Studies

Protected Grounds Immutable or fundamental status or belief
Five Protected Grounds* Race Religion Nationality Membership in a PSG Political Opinion *Actual or imputed Immutable or fundamental status or belief Race: Ethnic and indigenous groups (e.g. Guatemalan Mayans) Religion Wrong religion Too religious, not religious enough Challenging gender roles within religion Atheism, agnostic Targeting child because of parents’ religion Nationality: Including statelessness Political Opinion Broadly defined; not just political parties Children can hold an opinion Children may have an opinion imputed to them based on parents or family, or based on their actions Membership in a particular social group Cognizable group Member of the group Nexus Cognizability immutable/fundamental social distinction = formerly social visibility (perceived as group by society – persecutor view still relevant) Particularity = terms commonly understood/accepted in society (NOT breadth/size) To be discussed more below. © Center for Gender & Refugee Studies

Failure of State to Protect
Persecution must be by a state actor or private actor that the state is “unable OR unwilling” to control Disjunctive test Establish through: Actual failure to protect (though reporting is NOT required) Futility or danger of reporting Failure to protect similarly situated Law on books vs. enforcement of law Access to protection for children without adult figure © Center for Gender & Refugee Studies

Internal Relocation Not eligible for asylum if can reasonably and safely relocate to another part of the country. 8 C.F.R. § (b)(1)(i), (b)(1)(ii), (b)(2). Can a child relocate to avoid persecution? Safe relocation? Reasonable relocation? Presumed unreasonable where government is persecutor Generally not reasonable to expect a child to relocate AOBTC ¶ 42 Consider age, familial ties, mental health, medical condition, language issues, race/ethnicity issues, gender issues, means of survival Show not reasonable for this child applicant © Center for Gender & Refugee Studies

“humanitarian asylum”
Must demonstrate: “Compelling reasons” for being unwilling/able to return due to the severity of the past persecution (considered from perspective of child); OR “A reasonable possibility of other serious harm” No nexus required “Other serious harm” = persecution CANNOT be granted just because case is compelling Available when all past persecution elements are met, but future fear has been rebutted (don’t forget: it is DHS’s burden to rebut!) 8 C.F.R. § (b)(1)(B)(iii); Matter of L-S-, 25 I&N Dec. 705 (BIA 2012) © Center for Gender & Refugee Studies

Matter of a-r-c-g-: BRIEF HISTORY OF DV ASYLUM

History of Dv-based asylum
1985: In Matter of Acosta, the BIA set out the immutable/fundamental criteria, listing “sex” as an example 1995: U.S. issued gender guidelines stating that gender may be a defining characteristic 1996: In Matter of Kasinga, the Board approved a PSG defined in part by gender 1999: In Matter of R-A-, the Board reversed the IJ’s grant of asylum to Rody Alvarado a Guatemalan DV survivor 2000: The DOJ proposed regulations that were favorable in a number of ways for DV and other gender cases 2001: AG Reno vacated Matter of R-A-, and put the case on hold pending regulations 2003: AG Ashcroft certified the case to himself 2004: DHS filed brief in Matter of R-A- arguing that Rody Alvarado should be granted asylum 2005: AG Ashcroft sent R-A- back to the BIA with an order to decide the case when the regulations are finalized 2008: AG Mukasey certified the case to himself with an order not to wait for finalized regulations and sent the case back to the BIA which sent it back to the Immigration Court for a new decision in light of developments in the law 2009 (April): DHS filed a brief in Matter of L-R-, a case involving a Mexican DV survivor and her children 2009 (December): IJ in San Francisco grants asylum to Rody Alvarado 2010: IJ in San Francisco grants asylum to L.R. 2014: BIA issues precedent decision, Matter of A-C-R-G-, holding that “married women in Guatemala who are unable to leave their relationship” are a particular social group for purposes of asylum © Center for Gender & Refugee Studies

Matter of A-C-R-G, 26 I&N Dec. 388 (BIA 2014)
Facts Married Guatemalan woman suffered extreme physical violence, rape, and death threats from her husband. She attempted to leave him more than once, but he found her and threatened to kill her if she did not return. She sought the protection of the police at least three times. but they refused get involved in “marital relationships.” © Center for Gender & Refugee Studies

Matter of A-C-R-G, cont. Holding
“[M]arried women in Guatemala who are unable to leave their relationship” can constitute a cognizable PSG that forms the basis of a claim for asylum Reiterates that gender is an immutable characteristic Establishes that marital (or family relationship) status may be an immutable characteristic “where the individual is unable to leave the relationship” Recognizes that abuse in the home by a family member may be persecution Social group as defined met the requirements of particularity and social distinction in light of country conditions evidence in the record Note that DHS conceded the validity of the social group as defined in its briefing before the BIA. © Center for Gender & Refugee Studies

Matter of A-C-R-G, cont.: factors relevant to BIA decision
Particularity established b/c “married,” “women,” and “unable to leave the relationship” have “commonly accepted definitions” in Guatemala Social distinction (does society perceive group to be a group) established by looking at norms and laws relevant to group Norms include culture of “machismo and family violence,” sexual offenses, including spousal rape, remain a problem Laws designed to protect DV victims; look also to whether laws effectively enforced and whether police unwilling to help Board emphasizes issue of social distinction depends on the “facts and evidence” in each case © Center for Gender & Refugee Studies

post matter of A-C-R-G approach in intimate partner claims
Groups recognized by the BIA in Matter of A-C-R-G- (and by Department of Homeland Security in Matter of L-R-) are defined by gender + nationality + status in a domestic relationship: Mexican women in domestic relationships who are unable to leave (L-R-) Mexican women who are viewed as property by virtue of their positions within a domestic relationship (L-R-) Married women in Guatemala who are unable to leave their relationship (A-R-C-G-) Other groups may also be applicable (e.g. inclusion of the partner’s status as a police officer or gang member or the applicant’s ethnicity or tribe membership or opposition to a familial practice like polygamy) As discussed below, evidence of legal and social norms accepting DV and subordinate status of women, can be very important to show that the violence was on account of social group membership. © Center for Gender & Refugee Studies

Domestic violence asylum: child abuse

domestic violence AS persecutION
Physical abuse Sexual abuse and rape Severe emotional/psychological abuse Forced marriage Trafficking/forced prostitution Forced labor/servitude Threats (may be enough from perspective of child) Deprivation of fundamental rights? © Center for Gender & Refugee Studies

Hypo #1 - PERSECUTION Lourdes is a 13 year old from Guatemala. Her parents migrated to the U.S. when she was 6 years old and left her in the care of her paternal aunt and the aunt’s husband in rural Guatemala. Her aunt was a habitual drunk and her uncle a drug addict. Her parents in the U.S. regularly sent money for her care, but her aunt and uncle used that money to support their drug and alcohol habits. Her aunt and uncle did not send her to school; they claimed they had no money for school and that they needed her help to care for their animals and to grow vegetables and sell them at the market. Lourdes worked about 10 hours/day so she couldn’t realistically attend school anyhow. Sometimes her aunt, uncle, or both would disappear for days at a time, leaving her alone. When she was 13 she learned that her 16 year old neighbor was going to the U.S. and decided to join her. Eventually she was reunited with her parents in the U.S. She arrived underweight and with intestinal worms. Persecution? Not? What else would you want to know? © Center for Gender & Refugee Studies

PROTECTED GROUND in child abuse claims: PSG
Age/childhood/youth + Nationality Gender Family (Aguirre-Cervantes v. INS, 242 F.3d 1169 (9th Cir. 2001) (vacated pursuant to stipulation by parties) (held Mexican woman abused by father was persecuted on account of membership in PSG of her immediate family)) Ethnicity Sexual orientation/gender identity (Avendano-Hernandez v. Lynch, 2015 WL (9th Cir. Sept. 3, 2015) Lack of adult supervision or parental protection Disability or mental illness Street children (Escobar v. Gonzales, 417 F.3d 363 (3d Cir. 2005) (rejected “homeless children in Honduras who lived on the streets” after finding the group too “vague and all encompassing”); cf. Matter of B-F-O-, No , 24 IMMIG. RPT. B1-41, (BIA Nov. 6, 2001) (recognizing “abandoned street children in Nicaragua”)) Certain subgroups of children may be especially vulnerable (e.g., orphans, stepchildren) STREET CHILDREN: Social distinction: lots of evidence exists on mistreatment, exploitation, low status, especially in Honduras Particularity: despite Escobar’s ruling that the group was too vague community members could testify as to the ways they determine who is/is not a street child, programs exist to serve children and some non-profits are dedicated to working with street children © Center for Gender & Refugee Studies

Child status as an element of psg
Age changes over time, but being a child is immutable at a given point in time (Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008)) Being a child is relevant to identity and visible within society Children share certain characteristics Many government policies are age driven Children are often set apart from adults and understood to require special care Membership in a child defined group does not necessarily end when age of majority reached, e.g., always considered biological child of X parent © Center for Gender & Refugee Studies

Successful PSGs in child abuse cases
Family based (e.g., children in the x family, female children in the x family, females in the x family) Childhood + status in family (e.g., [country X] children in families, [country X] children viewed as property by virtue of their position in the family, [country X] children who are unable to leave their family) [X nationality] children unable to leave the familial relationship [X nationality] children viewed as property children of [X nationality] women in domestic relationships they are unable to leave Children on their own (e.g., children who have been abandoned by their parents, “recogidas” in El Salvador, children without effective parental protection) Disability (e.g., children stigmatized as mentally deficient, HIV+ children) Orphans Adopted children or stepchildren Indigenous children LGBT children, or children perceived to be LGBT Children born out of wedlock, children perceived as illegitimate, children with contested paternity * AVOID circular PSGs such as “abused children” FAMILY: Must define by determinate or determinable characteristics (e.g., “children of xx” not “family members of xx”) DV: Children of DV victims abused – often as a way to further harm and control mother. Consider family as a PSG, family members of x, children of xx (nationality) women in domestic relationships who are unable to leave. Matter of A-R-C-G- recognizes women in a domestic relationship unable to leave. Literature on the effects on children of the abuse of their mothers could help establish social distinction WITHOUT EFFECTIVE PARENTAL PROTECTION: This can include cases with child abuse by parent or extended family. Distinction: look to statistics on child abuse, articles about child abuse Particularity: look to federal legislation that provides guidance to States by identifying a minimum set of acts or behaviors that define child abuse and neglect AO decisions do not have legal reasoning, but it is our understanding this is how the AO views these cases. AO says that this group is particular by looking to Fed legislation that discusses abandoned children (or, in other words, what “w/o effective protection” might mean) The Federal Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C.A. § 5106g), as amended by the CAPTA Reauthorization Act of 2010, defines child abuse and neglect as, at minimum "Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation"; or "An act or failure to act which presents an imminent risk of serious harm.“ This definition of child abuse and neglect refers specifically to parents and other caregivers. 4.A "child" under this definition generally means a person who is younger than age 18 or who is not an emancipated minor. Most States recognize four major types of maltreatment: physical abuse, neglect, sexual abuse, and emotional abuse. In many States, abandonment and parental substance abuse are also defined as forms of child abuse or neglect. © Center for Gender & Refugee Studies

Child abuse with gender component
Girls may be targeted for sexual abuse + physical abuse Girls may be the only children in the family targeted for abuse or for repressive rules Consider social group defined by gender + childhood + status in the family (e.g., nationality + girls in the family, nationality + girl children in the family, nationality + stepdaughters) Articles or reports on different roles and expectations for girls and boys in the family (including higher rates of education for boys) and evidence from an expert about especially high rates of violence against girls in families and the status of girls in families would all be relevant to social distinction and particularity. © Center for Gender & Refugee Studies

Specific gender claims
Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (trafficking: young Albanian women who live alone) Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011) (honor violence/killing: women in Jordan who have allegedly flouted social norms) Qu v. Holder, 618 F.3d 602 (6th Cir. 2010) (forced marriage and involuntary servitude: PSG of “women in China who have been subjected to forced marriage and involuntary servitude”) Ngengwe v. Holder, 543 F.3d 1029 (8th Cir. 2008) (forced marriage: “Cameroonian widows”) Trafficking: AVOID defining the social group by “attractive” as a characteristic Forced Marriage: girls may be targeted for forced marriage because it is common practice in their communities  a social group defined by gender + nationality + tribe/ethnic group (or religion if relevant girls may be targeted as a way for a rapist to avoid prosecution  a social group defined by gender + childhood + past rape evidence that rape victims are stigmatized and/or more susceptible to future sexual abuse as a result of past rape helps establish social distinction Existing services for female rape survivors might establish particularity © Center for Gender & Refugee Studies

Building the record for psg
Social Distinction Particularity Anything that will demonstrate the proposed group is perceived as a group by the society News articles, scholarly research, popular literature discussing the group or characteristics Laws enacted regarding group members Words/phrases in vernacular re: the group Statistics and/or expert testimony regarding rates of persecution and/or prosecution, etc. Expert testimony that explains how socio- economic, political context, etc. makes the group recognizable by society Lay testimony from people in community about how they perceive or treat the group Anything that will allow fact finder to determine with clarity whether applicant is or is not a member Laws or policies defining terms (e.g., “domestic partner”) Objective means of determining membership (e.g., birth certificates to show family) Expert testimony regarding how in the particular society it's easily determinable who is a member of the group © Center for Gender & Refugee Studies

Hypo #2 - psg Edgar’s parents left him in the care of his grandparents and migrated to the U.S. from Honduras when Edgar was fairly young. Edgar’s grandfather strongly believes he is the master of the house and that children are to obey. He beat Edgar’s mother and brother (Edgar’s uncle) when they were children and he beats Edgar and his siblings whenever he thinks they are behaving badly, and sometimes when he drinks. He slaps and pushes them and tells them they are bad children. One time he beat Edgar’s brother with an electrical cord; another time he burned Edgar’s sister with a cigarette. Edgar’s uncle (who lives nearby) has always been friendly to Edgar and very affectionate, sometimes hugging Edgar more often and for longer than Edgar is comfortable with. When Edgar turns 12 his uncle starts coming into his bed at night and fondling him and eventually rapes Edgar. Edgar’s uncle frequently has parties at the home with lots of men in attendance. Soon after Edgar’s rape, the uncle’s friends begin raping Edgar too. Sometimes after raping him they thank Edgar and leave money next to the bed. His sister’s boyfriend starts calling Edgar a girl and some kids at school call him a “maricon,” a derogatory term for a gay person. Edgar strongly identifies as a boy, and does not identify and has not expressed any sexual orientation. Edgar becomes suicidal and tries to kill himself. Eventually he flees to the United States. How would you define the social group(s) in this case? © Center for Gender & Refugee Studies

Other grounds: Political Opinion
Gender-Based Claims: A girl who has views about gender norms that girls, for example, can dress as they wish, should be able to pursue an education and employment, should be able to marry who they choose is expressing a political opinion. She believes in women’s rights, regardless of whether she sees her views as political. Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) Family’s opinion imputed to child: A parent’s or other family member’s opinions or activities may be imputed to a child. *Frequent type of claim, importance of questioning children about their parents and other family members. Examples: parents’ violation of one child policy in China, parents’ pro democracy views in Albania, family member’s resistance to gangs, Haitian cases. Silaya v. Mukasey, 524 F.3d 1066 (9th Cir. 2008) © Center for Gender & Refugee Studies

Other Grounds: RELIGION
Religion may be “one central reason” for child abuse. Resisting religion-assigned gender roles or norms, for example, can be viewed as rejecting the religion itself (or one interpretation of the religion), and lead to persecution. Matter of S-A-, 22 I&N Dec (BIA 2000) (recognizing physical abuse of a daughter who resists religion-assigned gender roles as persecution based on religion) Harmful practices directed at a specific gender believed to be based on religion including female genital cutting and other harmful coming of age practices. © Center for Gender & Refugee Studies

Other Grounds: Race Indigenous children may be especially susceptible to certain types of abuse. Persecution based on race may be by individual of the same race © Center for Gender & Refugee Studies

ESTABLISHING Nexus IN DV CLAIMS
Must tie the harm to a protected ground – i.e., show that the harm was or will be “on account of” a protected ground. Analysis is heavily fact-dependent. Post-REAL ID, must prove an enumerated ground was or will be “at least one central reason” (but not necessarily the central reason) for the persecution. Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009); Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA ). Evidence of nexus may be direct or circumstantial. INS v. Elias-Zacarias, 502 U.S (1992). Direct: includes a persecutor’s words and actions Circumstantial: Legal and social/cultural/religious norms tolerating violence against similarly situated people may be relevant – e.g., status of children in society, levels of violence against children or subgroups of children. Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011) (recognizing relevance of societal attitudes and gender norms to establishing nexus) Discriminatory laws, e.g., no recognition of marital rape, allowing for marriage of girls under the age of 18? Recognized that motive can change over time DIRECT: comments by persecutor about the family member, or warnings about or to the family member Direct evidence of gender as a central motivating factor: a persecutor’s words calling a woman a “bitch,” “whore,” saying she’s “just a woman,” he is “the man” and he decides CIRCUMSTANTIAL Circumstantial evidence showing that the state and society accept violence against women. E.g., country conditions showing the prevalence of VAW, failure of state to respond to VAW. Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011): recognizing relevance of societal attitudes and gender norms to establishing nexus. Discriminatory laws, e.g., no recognition of marital rape, allowing for marriage of girls under the age of 18? © Center for Gender & Refugee Studies

Nexus challenges Can be especially challenging with children who may lack direct knowledge or understanding. Testimony of knowledgeable adults, expert reports and testimony (regarding country conditions, harm to child, etc.), and object evidence can be key. Declaration of Judith Herman on file with CGRS (incest) Declaration of Nancy Lemon on file with CGRS (domestic violence) Challenges to nexus often seen in cases involving persecution by in domestic violence cases where perpetrator is a substance abuser. And, where family is the PSG, safety of similarly situated family members will also raise nexus issue. © Center for Gender & Refugee Studies

Hypo #3 – nexus A Honduran boy (Gerardo) left home after his older sister's ex-partner (Jorge) attacked them. Gerardo’s sister Nancy first became involved with Jorge when she was 13 and he was 18. Throughout their seven year relationship, Jorge regularly beat and abused Nancy. Jorge and Nancy lived with Gerardo and his grandparents, who were left to care for them after their parents abandoned them. After the birth of their daughter, Nancy broke up with Jorge and he left the home. However, he continued to stalk and threaten her. On one occasion, Jorge punched Nancy in the face in front of Gerardo (then 12 years old) and Gerardo began to cry and told him to stop treating his sister that way. Jorge then beat Gerardo, telling him to “act like a man” and that this was what Nancy deserved because she was still his. Jorge then began threatening Gerardo at his school, telling him to mind his own business. Gerardo’s grandparents feared for his life and stopped sending him to school and his sister went to the police who told them to work it out themselves. Jorge left for another part of the country (to find work) for a time, but then returned and forced Nancy and her grandparents to allow him to live with them. The abuse of Nancy resumed, and when a male family member intervened, Jorge stabbed him, threatened to kill them all, and kidnapped their daughter. He has not been seen since. What is direct evidence of nexus? circumstantial? Center for Gender & Refugee Studies

State unable or unwilling to protect
Child does NOT report persecution Child reports persecution Reporting is not required! Evidence that can fill the gap in proof: high levels of impunity/low prosecution and conviction rates lack of laws to protect failure to implement laws designed to protect (Northern Triangle countries, for example, have progressive laws on children’s rights and protection, but they both fail to implement the laws) Sometimes a child or the child’s family reports persecution and police take some action. Consider: Did the police take a report? Start an investigation? Complete the investigation? Make an arrest? If an arrest was made was the persecutor quickly released? Did police refer the case for prosecution? Is any corruption involved – does the persecutor have a relationship to police or other state officials? Even if a persecutor is in jail, did the persecution continue even from jail? Or, is the persecutor in jail for something unrelated to the persecution and country conditions show the failure of the state to respond to the type of harm at issue in the case. © Center for Gender & Refugee Studies

Hypo #4 – state protection
Three Guatemalan siblings, ages 13, 11, and 7 recently came to the U.S. with the help of a coyote, paid for by their mother, and they are applying for asylum. When the youngest was a baby and the oldest was 9, their mother went to the U.S., leaving the children in the care of maternal grandmother. Their grandmother often drank and beat the children regularly. She would beat them with a belt, her hands, sticks, and other objects. She forced them to clean the house. They lived with their grandmother in a poor area on the outskirts of Guatemala City. The children attended school, though were often absent. They frequently had bruises and cuts visible on their faces, arms and legs from where their grandmother beat them, but no one (neighbors, teachers, etc.) ever asked them what they were from. When the oldest turned 13, the grandmother burned him on the arm with a hot coal for refusing to obey her orders. She threatened to burn the other children if he did not do what she asked. This was one of the worst attacks and the 13-year-old was so frightened for what might happen to his siblings, he finally told his mother about the abuse and she sent for them. None of the children told anyone about the abuse before – they did not have any close family in Guatemala and did not want to burden their mother. They also thought that no one would believe them. What else would you want to know to evaluate the government’s ability and willingness to protect the children from this abuse? What types of evidence could fill the gap since the children did not report abuse to the authorities? © Center for Gender & Refugee Studies

Internal Relocation and children
Can a child be expected to relocate? Generally unreasonable Family not supportive of woman’s decision to leave abusive relationship and family attempts to reunite woman with abusive partner Strong family/community bonds and need for support to survive ensure contact with family Corruption and bias compel government authorities, including police, to assist male friends/relatives find women who have left Women/children lack economic resources to relocate Limited number of shelters in country and shelter only temporary/poor conditions Can child relocate to avoid persecution? Safe relocation? Reasonable relocation? Presumed unreasonable where government is persecutor Generally not reasonable to expect a child to relocate AOBTC ¶ 42 Consider age, familial ties, mental health, medical condition, language issues, race/ethnicity issues, gender issues, means of survival Show not reasonable for this child applicant © Center for Gender & Refugee Studies

Hypo #X - Humanitarian asylum
Maria, now 16, lived with her grandmother in Guatemala. Her father abandoned the family and her mother is in the U.S. Two adult male relatives (an uncle and a cousin) spent a lot of time in the grandmother’s home. Maria’s grandmother did not like having these men around (the uncle has ties to MS-13), but she did not feel she was able to prevent them from coming over as a female head of the house. When Maria was 6 years old, these male relatives began sexually abusing her. The abuse occurred several times until her uncle was put in jail for a murder-related offense and her cousin left for Mexico where he now resides. Maria fled Guatemala at the age of 15 after a gang member killed a relative who refused to comply with extortion demands. The sexual abuse Maria suffered has had significant impacts on her physical and mental health; she still suffers from nightmares and headaches. Assuming DHS has met its burden to rebut the presumption (which you should not concede!), is the harm suffered severe and atrocious? Will she suffer “other serious harm”? © Center for Gender & Refugee Studies

Convention against torture
Domestic violence can rise to the level of torture (rape, beatings, deprivation of liberty, etc.) See, e.g., UNHCR Gender Guidelines; CAT General Comment No. 2; Zubeda v. Ashcroft, 333 F.3d 463, 472 (3d Cir. 2003); Bonilla-Morales v. Holder, 607 F.3d 1132, 1139 (6th Cir. 2010). More likely than not Consent or acquiescence (willful blindness standard) Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 351 (3d Cir. 2008) (remanding for BIA to consider evidence including that the “authorities have been especially slow to end abuses against women or bring perpetrators to justice” and that “[t]here is also very little support for women who have been abused”) Ali v. Reno, 237 F.3d 591, 598 (6th Cir. 2001) (noting that where “authorities ignore or consent to severe domestic violence, the Convention appears to compel protection for a victim”) Elements Torture 8 C.F.R. 208 (18)(a)(i) Infliction of severe pain or suffering Intentional act Applicant is under the custody or control of the offender Act for wrongful purpose Act by or with acquiescence of public official Not arising out of lawful sanction No requirement of nexus to a protected ground “More likely than not” standard Prospective nature Types of relief Withholding under CAT Criminal bars akin to withholding of removal Deferral under CAT No bars © Center for Gender & Refugee Studies

Litigation Support Materials
Practice advisories Children’s asylum claims Domestic violence-based asylum claims Country conditions reports Covers specific topics in individuals countries, including violence against women, children, LGBT, gang violence, etc. Expert declarations Topics: domestic violence and incest Country-specific: violence against women and children and gang-related violence Sample briefs, declarations, indexes © Center for Gender & Refugee Studies

Individualized Mentoring
CGRS provides free expert consultation to attorneys and organizations representing asylum seekers in California, across the United States, and internationally – including legal technical assistance, country conditions evidence, expert witness affidavits, model pleadings, and review of briefs or other submissions. To request assistance from CGRS, go to © Center for Gender & Refugee Studies

Update and Strategy on Domestic Violence Based Asylum Claims

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Update and Strategy on Domestic Violence Based Asylum Claims

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