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AILA D.C. 2014 CONFERENCE

SCATTERGORIES: Winning Asylum Claims Based on Particular Social Group Speakers: Dree Collopy , Benach Ragland LLP Jason Dzubow , Dzubow & Pilcher , PLLC Patricia Minikon , Minikon Law, LLC Moderator: Jumoke Oladapo , Ivylaw Law Office, LLC. AILA D.C. 2014 CONFERENCE.

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AILA D.C. 2014 CONFERENCE

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  1. SCATTERGORIES: Winning Asylum Claims Based on Particular Social GroupSpeakers:Dree Collopy, BenachRagland LLPJason Dzubow, Dzubow& Pilcher, PLLCPatricia Minikon, MinikonLaw, LLCModerator: JumokeOladapo, IvylawLaw Office, LLC AILA D.C. 2014 CONFERENCE

  2. IntroductionWhat is a Particular Social Group (PSG)?

  3. Evolution of PSG Legal StandardMatter of Acosta: common immutable characteristicMatter of C-A-; Matter of A-M-E-& J-G-U-: particularity and social visibility (new prongs of PSG analysis)

  4. Evolution of PSG Legal StandardMatter of S-E-G & Matter of E-A-G-: Social visibility and particularity now required

  5. Evolution of PSG Legal StandardCircuit Courts Respond1st, 2nd, 5th, 10th, 11th: Defer in whole or partAhmed v. Holder, 611 F.3d 90 (1st Cir. 2010)Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007)Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012)Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2011)Velasquez-Otero v. U.S. Atty. Gen.,456 Fed. Appx. 822 (11th Cir. 2012) (unpublished)

  6. Evolution of PSG Legal StandardCircuit Courts Respond3rd, 7th, & 9th:Reject Social Visibility and Particularity in whole or partValdiviezo-Galdamez v. Atty. Gen., 663 F.3d 582 (3d Cir. 2011)

  7. Evolution of PSG Legal StandardCircuit Courts Respond3rd, 7th, & 9th:Reject Social Visibility and Particularity in whole or partGatimi v Holder, 578 F.3d 611 (7th Cir. 2009)Benitez-Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009)Cece v. Holder, 733 F.3d 662 (7th Cir. 2013)

  8. Evolution of PSG Legal StandardCircuit Courts Respond3rd, 7th, & 9th:Reject Social Visibility and Particularity in whole or partHenriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013)

  9. Evolution of PSG Legal StandardMatter of M-E-V-G- &Matter of W-G-R-Social Visibility now Social DistinctionReaffirmed 3-part test

  10. Evolution of PSG Legal Standard3-Part Test for PSG Analysis (2014)1. Common, immutable characteristic2. Social distinction3. Particularity

  11. Current Trends in PSG Claims

  12. Analysis for a PSG Claim1. Identify a cognizable group under 3-part test2. Prove membership in the group3. Establish nexus between persecution and membership in group

  13. Analysis for a PSG ClaimIdentify a cognizable group under 3-part testChallenges:1. Increased Evidentiary Burden2. PSG no longer parallel with other 4 grounds3. Troubling particularity dicta

  14. Analysis for a PSG ClaimIdentify a cognizable group under 3-part testChallenges Cont’d:4. Homogeneity of groups5. Size of groups6. Is meeting both social distinction and particularity possible?

  15. Analysis for a PSG ClaimProve membership in the group

  16. Analysis for a PSG ClaimNexus: establish past persecution or a well-founded fear of persecution on account of that membership

  17. Analysis for a PSG ClaimNexus“One Central Reason”Direct or Circumstantial Evidence

  18. PSG “Hot Topics”

  19. Gang-based PSG ClaimsTypes of Gang-based claims – What has worked and what hasn’t?

  20. Types of Gang-based claims:Resistance to RecruitmentWitness or informantFamily membershipGenderFormer Gang membership

  21. Gang-based PSG claims: Other ChallengesNexusInternal Relocation

  22. Gender-based PSG claimsWhat has worked and what hasn’t?

  23. Types of Gender-based PSG claimsFGM/FGCMatter of KasingaForced MarriageRepressive social norms/Honor KillingsSex trafficking and forced prostitutionRape and sexual violenceFemicide

  24. Types of Gender-based PSG claimsDomestic ViolenceMatter of R-A- & Matter of L-R-Matter of A-R-C-G-

  25. Gender-based PSG claimsOther ChallengesNexusGovernment unable/unwilling to protectInternal Relocation

  26. Practice Pointers for PSG Claims

  27. Practice PointersClient should understand basis of claimOther bases: FGM, DV, Prior harm as basis for “other serious harm” claim (8 CFR 208.13(b)(1)(iii)(B) or humanitarian asylum claim8 C.F.R. 208.13(b)(1)(iii)(A)

  28. Practice PointersClient should understand basis of claimAsk about FGM, DV at beginningExplain why you are asking about sensitive issues

  29. Practice PointersArgue for case-by-case determination based on:- specific facts- evidence of recordBe creative in formulating PSG

  30. Practice PointersArgue for case-by-case determination Matter of E-F-H-L-: Alien entitled to present his case even if IJ/AO believes proposed PSG does not qualify

  31. Practice PointersMatter of Fefe: IJ cannot rely exclusively on I-589 to make decisionUse a PSG that has been used before

  32. Practice PointersUse published decisionsUse decisions from your Circuit/other CircuitsUse unpublished decisions from list serves or Lexis/Westlaw

  33. Practice PointersPresent multiple PSGs1. Acosta Group2. M-E-V-G- and W-G-R- GroupTip: Inclusion of weak claim with strong one may weaken strong claim

  34. Practice PointersEstablish your record with Evidence

  35. Practice PointersEstablishing your record1. Testimony and Affidavits2. Use Experts for context3. Documentary Evidence

  36. Practice PointersTestimony and AffidavitsGet to the point!The Goal: win asylum (not tell entire life story)Evidence supportive of claim: prove applicant’s statements

  37. Practice PointersUsing ExpertsEssential to provide proper context for PSG when claim cannot be documented with internet research/precedentWritten report or in-person testimony

  38. Practice PointersUse Experts to Establish- Socio-political context-Social distinction and particularity-Nexus-Ability/willingness of state to protect-Relocation options

  39. Practice PointersOther Documentary Evidence (background information)Passport; marriage certificates; photos; School and work records & evidence of missed work or school;Birth certificates of children;awards & certificates

  40. Practice Pointers- Don’t forget other protected grounds- Don’t forget about CAT – explain pros/cons-Brief it!! Remember IJs and AOs know basics

  41. Practice PointersLitigate like you may have to appeal-Challenge BIA’s additional requirements to preserve issue-Attempt to meet additional requirements

  42. Practice Pointers On Appeal- Challenge the BIA-Get help from the experts!-Don’t go it alone! -Coordinate with other litigators: AILA, AIC, NGOs, law schools

  43. Thanks for Attending!!

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