Article: Asylum: when is a family a “particular social group”? By David L. Cleveland

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David L. Cleveland
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A person can be granted asylum if she suffered harm because she was a
member of a “particular social group.”


The Attorney General and the Board of Immigration Appeals have recently
shown hostility to the idea that a family can be a particular social group.
How can this be overcome? This article will review case law, and offer
suggestions.


Matter of L-E-A-, 
27 I&N Dec. 581 (A.G. July 29, 2019) involved a father who owned a
grocery store. A cartel asked him to sell drugs at the store; he refused.
The cartel then asked the son; he refused. The cartel threatened the son,
he fled and applied for asylum. The son argued he was a member of the
immediate family of his father. The BIA found that the family was a
particular social group, but denied the claim for lack of nexus.


Attorney General Barr criticized the BIA for accepting the stipulation from
the parties that this family constituted a particular social group,
stating”…an alien’s immediate family… generally will not be distinct on a
societal scale…” 27 I&N Dec. at 582. A family will not be a particular
social group “unless it has been shown to be socially distinct in the eyes
of its society, not just those of its alleged persecutor.” Id.


The Attorney General made several statements about families:


“In the ordinary case, a family group will not meet that standard, because
it will not have the kind of identifying characteristics that render the
family socially distinct within the society in question.” Id. at
586. “[I]n the ordinary case, a nuclear family will not, without more,
constitute a particular social group because most nuclear families are not
inherently socially distinct.” Id. at 589. It is true that many
appellate courts have recognized a family as a particular social group, but
they relied “upon outdated dicta.” Id. at 590.


“If cartels or other criminals created a cognizable family social group
every time they victimized someone, then the social-distinction requirement
would be effectively eliminated. “Id. at 592.


So what if the society views “families” are important. Is this 
family distinct? Id. at 594.


A family must show it is “set apart, or distinct from other persons.” Id. at 594. The AG means that a family must show it is set apart
from other families. “But unless an immediate family carries
greater societal import, it is unlikely that [it is] distinct.” Id. at 595.


SOME COURTS OF APPEAL SEEM TO AGREE WITH THE ATTORNEY GENERAL


The Fifth Circuit quoted this sentence from page 586 of L-E-A-:


“In the ordinary case, a family group will not meet that standard, because
it will not have the kind of identifying characteristics that render the
family socially distinct within the society in question.” Ortiz v. Barr, 784 Fed. Appx. 898, 899 (5th Cir. 2019)


The Sixth Circuit quoted this sentence from page 592 of L-E-A-


“If cartels or other criminals created a cognizable family social group
every time they victimized someone, then the social-distinction requirement
would be effectively eliminated.”


The Sixth Circuit then said: “Thus, a family group must be socially
distinct not only in the eyes of the alleged persecutors, but also in the
eyes of society in general. Navas-Medina v. Barr, 2019 U.S. App.
LEXIS 31060, *2-3 (6th Cir. 2019)


The Tenth Circuit quoted from page 582 of L-E-A-:


“…an alien’s family-based group will not constitute a particular social
group unless it has been shown to be socially distinct in the eyes of its
society, not just those of its alleged persecutor….[and an] immediate
family . . . generally will not be distinct on a societal scale….” Saucedo-Miranda v. Barr, 785 Fed.Appx. 586, 590 (10th
Cir. 2019)


THE ELEVENTH CIRCUIT IS A LITTLE MORE FRIENDLY
 
Perez-Sanchez v. Att’y Gen., 
935 F.3d 1148, 1158 (11th Cir. 2019) mentioned L-E-A- 
in note 7, but only in passing. A father-in-law owed money to a cartel. He
didn’t pay, so the cartel threatened his son-in-law. With little
discussion, the 11th Circuit ruled: “Absent the familial
relationship between [father-in-law and son-in-law], the cartel would never
have hunted him and his partner down to begin with or continued persecuting
them for months.”


“We assume, without deciding, that Andres-Diego’s family-membership PSG is
cognizable under the Immigration and Nationality Act.”Andres-Diego v. Barr, 2020 U.S. App. LEXIS 8198, note 3(11 th Cir. 2020)


THE BOARD OF IMMIGRATION APPEALS RECENTLY FOLLOWED THE AG


In Matter of E-R-A-L-, 27 I&N Dec. 767 (BIA 2020) respondent
lived on land his grandfather had given to his father. A cartel asked
respondent and the father to allow it to cultivate marijuana on the land;
when they refused, the father was murdered one month later.


Respondent argued he was a member of a family. The Board ruled that a
family will “not constitute a particular social group unless it has been
shown to be socially distinct in the eyes of its society,” and that “in the
ordinary case, a nuclear family will not . . . constitute a ‘particular
social group’ because most nuclear families are not inherently socially
distinct.” .” Id. at 774 (quoting from L-E-A.) (cleaned
up)


“The respondent has not shown that his family is socially distinct or was
viewed as anything besides a typical nuclear family in Guatemala.” Id. at 774.


HOW CAN I SHOW THAT THIS CLIENT’S FAMILY IS SOCIALLY DISTINCT?

<ol start=”1″ type=”1″>
<li>
Argue that the comments of the Attorney General are dicta.
</li>
</ol>

In Matter of A-B-, 26 I&N Dec. 316 (AG 2018), many statements
were made about


asylum arising out of domestic violence. A federal judge commented on A-B- in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C.
2018). Vance H. Spath, an Immigration Judge in Arlington VA, said the Grace court “observed that most of A-B- is dicta- and in fact
the district court notes that the government had admitted as much during
the Grace litigation. Grace, 344 F. Supp. 3d at 138 n.
22.” [at page 9 of Judge Spath’s decision, which is published on the
Domestic Relations page of the Louise Trauma Center website
[www.louisetrauma.weebly.com]


If most of A-B- is dicta, then so too for Matter of L-E-A-. 


“A judge’s comments in an opinion that are inessential to its ruling” are
dicta. Bouvier Law 


Dictionary.
“Dictum is an abbreviation for obiter dictum, Latin for ‘things said in
passing,’ and it is used to characterize statements in an opinion that are
not utterly essential to the justification of the mandate required by the
opinion. Thus, obiter dicta are statements in an opinion other than ratio
decidendi, or the reasoning required for the decision.” Id.


Dicta is language unnecessary to a decision, ruling on an issue not raised,
or opinion of a judge which does not embody the resolution or determination
of the court, and made without argument or full consideration of the point. Lawson v. U.S., 176 F.2d 49, 51 (D.C.Cir. 1949)( the Court found
that certain language was not dicta). Dicta is “speculation about what
would happen in cases not before the court.” Seminole Tribe v. Fla., 517 U.S. 44, 125 (1996)(in dissent).

<ol start=”2″ type=”1″>
<li>
Present evidence that this family is distinct in its village.
</li>
</ol>

A family need not be known nation-wide. Is it “recognizable by others in
the community” is


a permissible standard. Matter of S-E-G-, 24 I&N Dec. 579, 586
(BIA 2008). Being distinct in the country, or in the “community” is
relevant. Matter of M-E-V-G-, 26 I&N Dec. 227, 242 (BIA 2014)
[citation omitted].


“Persecution limited to a remote region of a country may invite an inquiry
into a more limited subset of the country’s society, such as in
<a
href=”https://advance.lexis.com/search/?pdmfid=1000516&crid=fe2992e7-4899-444b-bb0d-b616fa4ddf8d&pdsearchterms=26+I%26N+dec+239&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdstartin=&pdpsf=&pdqttype=and&pdquerytemplateid=&ecomp=973_9kk&earg=pdsf&prid=86b74a8e-8b48-4e2f-a3d3-2237792dc28e”
>
Matter of Kasinga
, 21 I. & N. Dec. at 366
</a>
, where we considered a particular social group within a tribe. Cf. 
<a
href=”https://advance.lexis.com/search/?pdmfid=1000516&crid=fe2992e7-4899-444b-bb0d-b616fa4ddf8d&pdsearchterms=26+I%26N+dec+239&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdstartin=&pdpsf=&pdqttype=and&pdquerytemplateid=&ecomp=973_9kk&earg=pdsf&prid=86b74a8e-8b48-4e2f-a3d3-2237792dc28e”
>
Henriquez-Rivas v. Holder
, 707 F.3d at 1089
</a>
(“Society in general may also not be aware of a particular religious sect
in a remote region.”). 26 I&N Dec. at 243.


“ Evidence such as 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.” 26 I&N
Dec. at 244.


3. Argue that a family is a “recognized component” of the society in
question.


In Matter of M-E-V-G-, 26 I&N Dec. 227, 239 (BIA 2014), the
Board declared that it is relevant if a proposed group is a “recognized
component of the society in question.” The Attorney General erred by not
acknowledging and following this precedent.


4. Present a declaration from a neighbor that says: “I have lived near the
family in question for years. Everyone knows this family. They are
well-known for their generosity and advocacy.”


5. Ask your client these questions:


What is your last name? Why is that your name?


Does your country have anti-nepotism laws? Why?


Do your local hospitals have rules about visitors? Why? Prisons?


Does your country have intestacy laws? Why?


Does your country have vicarious liability laws? Why?


When is a family member responsible for the torts or debts of another
family member:


Who can recover damages, if someone else is injured? Wrongful death
statutes?


Do the criminal statutes in your country distinguish between different
kinds of victims, such as being a family member or not?


Are there special courts to help certain kinds of victims?


6. Read the Complaint filed in S.A.P. v. Barr, 19-cv-3549 (D.D.C.
Nov. 22, 2019)


This complaint is 86 pages long, and contains many arguments and citations.
It directly challenges L-E-A-. A copy is available at the
“Gang-based asylum” page of the Louise Trauma Center.
www.louisetrauma.weebly.com

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<a name=”bio”></a>
About The Author 
</h4>

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David L. Cleveland, a lawyer in Washington DC, has won asylum or withholding for people from 48 countries. He can be reached at <a href=”mailto:1949.david@gmail.com”>1949.david@gmail.com.</a>

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