Winning Asylum Cases
~ Emmanuel Samonte Tipon Esquire ~
February 13, 2019
We just won a difficult asylum case involving a lady from a country that used to be part of the Soviet Union. She had a transportation business. One day a customs inspector contacted her and said that one of her trucks had been found to contain prohibited drugs. She went to see the inspector who showed her what they had found. She reported the matter to the police. The police were indifferent to her report. She went to the prosecutor who was likewise uninterested in her complaint. Days later she received threatening calls not to be making reports like that. Thereafter, she was beaten up as she was going to her apartment and warned not to be talking. She was hospitalized for a number of days.
She and her husband left her country and came to the United States on a tourist visa. They had planned to go to another country but stopped by Hawaii. They liked the place. Months after their arrival, they applied for asylum. An asylum officer said that USCIS could not grant their application because they had failed to establish that they met the definition of “refugee” since the harm she experienced was not on account of any of the protected characteristics in the refugee definition (race, religion, nationality, membership in a particular social group, or political opinion). He referred the case to an immigration judge for adjudication in removal proceedings. The Department of Homeland Security served upon them a Notice to Appear charging them with remaining in the United States beyond the period of authorized stay.
Fortunately, they saw my name on a website and contacted me. Based on their situation, the case was defensible but required a lot of effort.
ASYLUM APPLICATION PROCESS AND SUPPORTING DOCUMENTS
We submitted together with a co-counsel an amended asylum application claiming that she was seeking asylum because she was persecuted on account of membership in a particular social group – “informers or witnesses”. We also asked for additional relief in the form of withholding of removal and relief under the Convention Against Torture.
We made copies and organized the documents that the applicants had submitted to the USCIS in connection with their original asylum application. We also obtained and submitted the hospital records showing that she was hospitalized, the police report she had made about the assault against her, the police summons to her to appear for investigation, a report by an investigator about involvement of certain police officers in a criminal group engaged in smuggling, transporting, and selling narcotic substances in the country. We also submitted a U.S. State Department Report on the country conditions of that country, especially about corruption in the country and deficiencies in the administration of justice, a Business Portal Report about corruption, extortion, bribery, and abuse of office in that country, and newspaper reports about police corruption in that country.
We also presented with our co-counsel the asylum applicant as a witness. She narrated in detail the persecution she suffered after reporting the smuggling of narcotics and her hospitalization after she was beaten. Her husband corroborated her story. We had contacted a lawyer in the applicant’s home country who was ready to testify about corruption. However, it appeared that the testimonies of the applicants were sufficient.
MEMORANDUM IN SUPPORT OF ASYLUM APPLICATION
We submitted a Memorandum in support of the asylum application. We stated the law on asylum which is contained in INA Section 208 [8 USC 1158]. Basically, the applicant must meet the definition of “refugee” in Section 101(a)(42)(A), namely “any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail herself or herself of the protection of, that country because of past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
We pointed out that the applicant was eligible for asylum because she was outside the country of her nationality and was unwilling to return to her country because of persecution and a well-founded fear of persecution on account of membership in a particular social group. The term “particular social group” is ambiguous. Donchev v. Mukasey, 553 F.3d 1206, 1215 (9th Cir.2009). It has been the subject of considerable litigation because many asylum applicants cannot establish persecution on account of the other protected grounds like race, religion, nationality, or political opinion.
"Persecution on account of membership in a particular social group" means “persecution that is directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).
We argued that “informers or witnesses” constitute a “particular social group” because all the members thereof share a common, immutable characteristic.” i.e., a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” The applicant could not change the characteristic “informer or witness” even if she wanted to because it is immutable – “not capable or susceptible to change.” claimed that the applicant was within that social group, namely, “informers or witnesses”.
In Soriano v. Holder, 569 F.3d 1162, 1166 (9th Cir.2009), the Court of Appeals 9th Circuit had rejected the alien’s proposed particular social group of government informants against a Filipino gang in the United States. However, in a subsequent decision, Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013), the 9th Circuit held that the Board of Immigration Appeals erred in holding that witnesses who testify against gang members may not constitute a particular social group due to a lack of social visibility.
The Immigration Judge ruled in our favor, holding that our clients were credible witnesses and that the lady had suffered past persecution on account of membership in a particular social group and had a well-founded fear of future persecution if she were to return to her native country. It was a happy ending and an early Christmas present for the lovely couple who are now living happily in Hawaii.
Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. His current practice focuses on immigration law and appellate criminal defense.
This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon the contents of this article.