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Are Guatemalan Women a Particular Social Group for Purpose of Asylum?

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Are Guatemalan Women a Particular Social Group for Purpose of Asylum? U.S. Department of Justice Washington, D.C. 20530 Vol. 14, No. 7 July 2010 LITIGATION HIGHLIGHTS Are Guatemalan Women A Particular ASYLUM Social Group For Purpose of Asylum? ►String of job losses do not amount The Ninth Circuit in Perdomo v. teen, and entered the United States to persecution (6th Cir.) 11 Holder, __ F.3d __, 2010 WL illegally in 1991, to join her mother. ►Applicant’s business and social 2721524 (9th Cir. July 12, 2010) In 2003, the former INS commenced ties to Colombian government suffi- (Nelson, Fletcher, Paez), opened the removal proceedings against on the cient to show imputed political opin- door to the possibility that “all basis that she had unlawfully en- ion by FARC (3d Cir.) 7 women in Guatemala,” could qualify tered the United States. Perdomo CRIMES for asylum in the United States be- conceded removability, and re- cause they constitute a particular quested asylum, withholding and ►Misapplication of bank funds by social group under INA § 208. The CAT protection. employee is an aggravated felony (9th court disagreed with the BIA’s inter- Cir.) 12 pretation that such a group would be At the asylum hearing Perdomo DUE PROCESS, FAIR HEARING too broad to be recognized. "While claimed that she did not want to ►Alien bound by his attorney we have not held expressly that fe- return to Guatemala because she responses in a sworn interview with males, without other defining char- feared persecution as a member of immigration officer (1st Cir.) 7 acteristics, constitute a particular a particular social group consisting ►Notice may be served on minor social group, we have concluded of women between the ages of four- who is at least 14 years of age (5th that females, or young girls of a par- teen and forty. She testified that her Cir.) 8 ticular clan, met our definition of a fear was based on the high inci- ►Alien must be afforded particular social group," said the dence of murder of women in Guate- compulsory process to locate witness court. mala, and her own status as a Gua- before hearay evidence can be temalan woman. She provided the IJ admitted (7th Cir.) 11 The petitioner, Lesly Perdomo, with several reports by the Guate- ►IJ properly denied continuance left Guatemala when she was fif- (Continued on page 2) where alien had not complied with firgerprinting requirement (7th Cir.) 11 Application of the Fourth Amendment JURISDICTION ►IJ lacks jurisdiction to review DHS Exclusionary Rule in Removal Proceedings termination of asylee status (3d Cir.) 8 ►No jurisdiction to review This article will explore the ex- direct products of such invasions [of a proceedings (7th Cir.) 9 tent to which the door to application defendant’s Fourth Amendment of the exclusionary rule in immigra- rights].”). The Supreme Court, how- NATURALIZATION tion proceedings has been left open ever, has held that the Fourth Amend- ►Person born in Philippines when it by the “egregious violations” excep- ment exclusionary rule generally does was a territory of the US, was not born tion mentioned by the Supreme not apply in civil deportation proceed- in the US (5th Cir.) 9 Court in INS v. Lopez-Mendoza, 468 ings. See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). As a general rule U.S. 1032, 1050 (1984); see also in criminal proceedings, all evidence Pennsylvania Bd. of Probation and Inside obtained, directly or indirectly, as a Parole v. Scott, 524 U.S. 357, 363 5. Further review pending result of an unlawful search or sei- (1998) (“we have generally held the zure in violation of the Fourth exclusionary rule to apply only in 7. Summaries of court decisions Amendment, is excluded. See Wong criminal trials”). 14. Topical parentheticals Sun v. U.S., 371 U.S. 471, 484 (1963) (“The exclusionary prohibition In Lopez-Mendoza, the Court 18. Inside OIL extends as well to the indirect as the (Continued on page 3) 1 July 2010 Immigration Litigation Bulletin Guatemalan women as a particular social group two-pronged approach to recognizing a protected social group, partly be- cause that members of some social (Continued from page 1) particular tribe and who oppose fe- mala Human Rights Commission, male genital mutilation because that group do not associate by choice. which is based in the United States, group is defined by characteristics Thus, in Hernandez-Montiel v.INS, documenting the torture and killing of that cannot be changed or should 225 F.3d 1084 (9th Cir. 2000), the women, the brutality of the killings, not be changed. Matter of Kasinga, court held that a “‘particular social the non-responsiveness of the Guate- 21 I&N Dec. 357, 366 (BIA 1996). group’ is one united by a voluntary malan government to such atrocities, However, noted the court, “whether association, including a former asso- among other matters. She also females in a particular country, with- ciation, or by an innate characteristic claimed that she would be targeted out any other defining that is so fundamental to the identi- because she would not be accepted characteristics, could ties or consciences of its members that as a native citizen in Guatemala, but constitute a pro- A “‘particular social would be considered an American tected social group members either can- with financial resources due to the remains an unre- group’ is one united not or should not be number of years that she has lived in solved question for by a voluntary asso- required to change the United States. The IJ denied asy- the BIA.” it.” Applying this defi- ciation, including a nition, the court held lum, declining to make a finding o the former association, or social group issue. Ninth Circuit that “gay men with Case Law by an innate charac- female sexual identi- On appeal, the BIA agreed with teristic that is so fun- ties in Mexico” consti- tuted a particular the IJ's determination that Perdomo The court then damental to the iden- failed to establish a well-founded fear considered its own social group. The of future persecution in Guatemala case law, noting that tities or consciences court reasoned that on account of her membership in a under its seminal of its members.” “[s]exual orientation particular social group. The BIA con- case of Sanchez- and sexual identity sidered the group of “women be- Trujillo v. INS, 801 are immutable” and tween the ages of fourteen and forty F.2d 1571 (9th Cir. 1986), it re- “are so fundamental to one's identity who are Guatemalan and live in the quired a “voluntary associational that a person should not be required United States” to be too broad to relationship among the purported to abandon them.” The court also qualify as a protected social group. members, which imparts some com- explained that consistent with the The BIA also rejected Perdomo's re- mon characteristic that is fundamen- BIA’s interpretation, “social visibility” vised definition of the protected so- tal to their identity as a member of and “particularity” are factors to con- cial group-“all women in Guatemala.” that discrete social group.” In that sider in determining whether a group The BIA concluded that this social case, the court held that “young, constitutes a “particular social group was even broader, and was a urban, working class males of mili- group” under the INA. Santos-Lemus demographic rather than a cogniza- tary age who had never served in the v. Mukasey, 542 F.3d 738, 744 (9th ble social group under the INA. military or otherwise expressed sup- Cir. 2008). The court then noted port for the government of El Salva- that although it had not “held ex- The Ninth Circuit preliminarily dor” did not constitute a particular pressly that females, without other noted that although the INA does not social group for purposes of asylum. defining characteristics, constitute a provide a definition for the term The court also said that a group particular social group” it has con- “particular social group,” the BIA has could not be defined by a “sweeping cluded that females, or young girls of interpreted it to mean a group with demographic division” where its a particular clan, meet it definition of members who “share a common, members “naturally manifest a a particular social group. Moham- immutable characteristic” that plethora of different lifestyles, vary- med v. Gonzales, 400 F.3d 785 (9th “members of the group either cannot ing interests, diverse cultures, and Cir. 2005). In Mohammed, the court change, or should not be required to contrary political leanings.” The said that it recognized gender as an change because it is fundamental to court reasoned that the term “innate characteristic” that is their individual identities or con- “particular social group” was in- “fundamental to [one's] identit[y],” sciences.” Matter of Acosta, 19 I&N tended to apply to “cohesive, homo- consistent with the INS, now USCIS, Dec. 211 (BIA 1985). The BIA also geneous group[s]” in order to avoid Gender Guidelines, and those of the has clarified that a group must have “extending refugee status to every UNHCR. “social visibility” and adequate alien displaced by general conditions “particularity” to constitute a pro- of unrest or violence in his or her Perdomo’s Asylum Claim tected social group. In re A-M-E & J-G- home country.” U-, 24 I&N Dec. 69 (BIA 2007). The Perdomo claimed that that women in BIA has recognized as a “particular However, more recently, the Guatemala comprise a “particular social group” women who belong to a court said that it had developed a (Continued on page 5) 2 July 2010 Immigration Litigation Bulletin Application of the Fourth Amendment Exclusionary Rule in Removal Proceedings (Continued from page 1) itly that such violation would provide Mendoza); United States v.
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