Article: Ten Immigration Judges Rule That “Women In (This Country)” Is A Particular Social Group By David L. Cleveland

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Ten Immigration Judges Rule That “Women In (This Country)” Is A Particular Social Group
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David L. Cleveland
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Ten immigration judges have found that “women in this country: ____” is a
particular social group. This article will summarize two cases each from
Mexico and Honduras, and three cases each from El Salvador and Guatemala.


MEXICO


“Mexican females” are a cognizable particular social group, ruled IJ Miriam
Hayward, [San Francisco CA] Her 22-page Opinion, dated September 13, 2018
is published on the Domestic Violence page of the Louise Trauma Center
website, as “IJ 9-13-18.” [www.louisetrauma.weebly.com.]


Respondent, from the age of 5 until the age of 22, was beaten often by her
mother in Mexico. Respondent got married and was beaten often by her
husband.


A particular social group must be “socially distinct.” Matter of A-B-, 27 I&N Dec. 316 (AG 2018). There is a great
deal of violence against females in Mexico. The federal government of
Mexico issued a “gender alert” which directed local authorities to take
immediate action to combat this violence. This “demonstrates the
government’s recognition of the need for specialized protection for Mexican
females.” Opinion at page 10.


Respondent’s mother is also a member of the “Mexican females” particular
social group, but “a person may be persecuted by a member of her own social
group.” Id. at 10.


Respondent’s husband said, “I’m the man and you’re going to do what I say.”
There is much evidence that many people in Mexico believe that “women are
inferior to men.” Id. at 11. So, considering all the evidence,
respondent’s membership in the particular social group “Mexican women” was
at least one central reason for her persecution. Id. at 11.


= = = =


“Mexican women” are a cognizable particular social group, ruled IJ Eileen
Trujillo, [Denver, CO]. Her 20-page Opinion, dated March 7, 2019 is
published on the Domestic Violence page of the Louise Trauma Center
website, as “IJ 3-7-19.” [pages 3-6 are omitted] 

Respondent’s boyfriend knocked her unconscious. He threatened and beat her
often. He did not allow her to leave the house without his permission.


The group composed “of Mexican women is also socially distinct. “Opinion at page 12.


“Social groups based on innate characteristics such as sex…are generally
easily recognizable and understood by others to constitute social groups.”
(Quoting Matter of C-A-, 23 I&N Dec. 951,959 (BIA 2006). Id. at 12.


The Department of State explains that “federal law criminalizes rape,
domestic violence, and femicide, but the laws are often unenforced and
resources for women victims were often lacking.” Id. at 12.
“Mexican society ascribes specified roles to women and men based
exclusively on their gender…[there is] a culture of machismo and
subordination of women and a culture of discrimination against women based
in the erroneous conception of inferiority.” Id. at 12. [citations
omitted and cleaned up].


“Gender-based violence is ubiquitous in Mexico.” Id. at 13.
“Indeed, impunity for perpetrators of gender-based violence remains the
norm.” Id. at 17. Resources “for women victims of domestic
violence are inadequate…’ Id. at 17.


Respondent contacted the police often; they did almost nothing.Id. at 16. The “police still regularly abuse women in Mexico.” Id. at 18.


= = = =


HONDURAS


“Honduran females” are a cognizable particular social group, ruled an IJ in
Philadelphia PA. His 19-page Opinion, dated June 6, 2019 is published on
the Domestic Violence page of the Louise Trauma Center website, as “IJ
6-6-19.”


Respondent was abused and raped by her ex-partner. He wanted her to stop
working.


Susan Cruz, LGSW, testified as an expert on Domestic Violence in the
Northern Triangle. She has visited Honduras about 20 times. She spoke to a
prosecutor there, who said that her office did not get involved with
domestic violence. The “state should not intervene in it.” Opinion at page 8.


“Honduran females” is a cognizable particular social group. It is
immutable. It is particular: the group has “discrete and definable
boundaries.” Id. at 12-a. [the Opinion has two pages labeled as
“12;” I have re-numbered the second one as “12-a.”) So what if the group is
large. Id. at 13


Matter of A-B-, 
27 I&N Dec. 316 (A.G. 2018) “contains several statements, in dicta…” Id. at 14.


This social group is distinct, because of the “distinct forms of violence
and the danger that they face in the country.” Id. at 14. Ms. Cruz
opined that “domestic violence is accepted and common throughout Honduras.” Id. at 14. Gangs perceive women as more effective in the sale of
drugs. Id. at 15. The government has enacted special laws “with
the intention and purpose of protecting Honduran women…” Id. at
15. These women are “set apart, or distinct, from other persons…in some
significant way.” Id. at 15.


Nexus


The husband beat Respondent because “he did not want her to work.” Id. at 15. He said, “she should obey him.” Id. at 16.


“A staggering number of women in Honduras face violence..in 2016, [there
were 10.2 murders for every 100,000 women in the country.” Id. at
16. Ms. Cruz opined that the culture there is “that women must be
subservient to men and that women are the property of their husbands of
fathers.” Id. at 16. This shows the “one central reason.” Id. at 16.


The government is unable or unwilling to protect Respondent. In Matter of A-B-, 27 I&N Dec. 3316 (A.G. 2018) the phrase
“complete helplessness” was used, but in the Third Circuit, this is not
correct. Id. at 16 note 4. In Grace v. Whitaker, 344 F.
Supp. 3d 96, 130 (D.D.C. 2018) the Court held that the “complete
helplessness” standard is not “permissible.” Id. at note 1, at the
bottom of page 17.


= = =


“Women in Honduras” are a cognizable particular social group, ruled IJ
Deepai Nadkarni, [Arlington VA.] Her 12-page Opinion, dated December 1,
2018 is published on the Domestic Violence page of the Louise Trauma Center
website, as “IJ 12-1-18.”


“The Court finds that ‘women in Honduras’ are members of a cognizable
particular social group.” Opinion at page 6.


The Department of State found that “violence against women and impunity for
perpetrators continued to be a serious problem.” Id. at 7. The
number of violent deaths of women increased by 263.4 per cent between 2005
and 2013, reports the Irish Times. Id. at 7.


The evidence “establishes that cultural and legal norms in Honduras permit
widespread violence and discrimination against women.” Id. at 7.
This shows that women “are set apart, or distinct, from other persons,”
therefore, they are “socially distinct.” Id. at 7.


= = = = =


EL SALVADOR


“Salvadoran women in domestic relationships who are unable to leave the
relationship” are a cognizable particular social group, ruled IJ Vance
Spath, [Arlington VA.] His 18-page Opinion, dated March 21, 2019 is
published on the Domestic Violence page of the Louise Trauma Center
website, as “IJ 3-21-19.”


Respondent’s boyfriend beat and raped her often. He tried to prevent her
from having any friends. Opinion at page 4.


Respondent was slightly inconsistent about dates of events, “but the Court
finds this unsurprising in light of the psychological trauma she has
endured…” Id. at 5. “Any uncertainty regarding the dates of events
does not warrant an inference that the events themselves did not occur.” Id. at 5.


The government of El Salvador “is unable or unwilling to protect”
respondent. Id. at 7.


Violence against women is “a widespread and serious problem.” Id. 
at 7. “With up to ninety percent of crimes against women going unpunished,
many perpetrators believe-often correctly= that they can commit domestic
and sexual violence with impunity.” Id. at 7.


In Matter of A-B-, 27 I&N Dec. 316 (AG 2018), the Attorney
General overruled Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA
2014). “In so doing, the Attorney General expressly did not disturb the
background particular social group cognizability standards articulated in A-R-C-G-, … he held only that the Board…had not applied those
standards correctly.” Id. at 8.


A federal court criticized A-B- in the caseGrace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). TheGrace court “clarified that A-B- overruled A-R-C-G- strictly based on the BIA’s reliance on the DHS’s
concession on the issue. Grace, 344 F. Supp. 3d at 133.
Accordingly, the district court observed that most of A-B- is
dicta- and in fact, the district court noted that the government admitted
as much during the Grace litigation. Grace, 344 F. Supp.
3d at 138 n. 22.”


Id. 
at 9.


“Salvadoran women in domestic relationships who are unable to leave the
relationship” is a cognizable particular social group. Id. at 10.
Gender is immutable. This group is “particular” because it has “clear
benchmarks for determining who falls within the group.” Id. at 10.


Social Distinction


“The fact that members of the proposed group are singled out for greater
persecution than the general population is ‘highly relevant’ to the social
distinction analysis as well. Temu, 740 F.3d at 894.” Id. at 12. The government of El Salvador has laws criminalizing
violence against women, and has “recognized a need to offer assistance to
victims of intimate partner violence as such.” Id. at 12. The
UNHCR has identified this group as part of Salvadoran society. Id. at 12.


El Salvador has a culture of “machismo, a perceived threat to a
man’s masculinity is often met with violence.” Id. at 14.


Nexus


The boyfriend ‘raped and abused her because he regarded her as his property
forever.” Id. at 15. “He abused her casually and openly, with no
expectation of any consequences.” Id. at 16.


= = = = =


“Women in El Salvador” are a cognizable particular social group, ruled IJ
Traci Hong Arlington VA. Her 16-page Opinion, dated October 29, 2019 is
published on the Domestic Violence page of the Louise Trauma Center
website, as “IJ 10-29-19.”


Respondent was punched and raped by her ex-partner. Opinion at
page 3. Violence against women is “as widespread and serious problem….With
up to ninety percent of crimes against women going unpunished, many
perpetrators believe-often correctly- that they can commit domestic and
sexual violence with impunity.” Id. at 6. There is “an estimated
seventy-seven percent impunity rate for femicide in El Salvador.” Id. at 6. Respondent was brazenly abused “in front of” the
ex-partners friends. Id. at 6.


“Women in El Salvador” has members with characteristics that are immutable.
It is particular: “women are members and men are not.” Id. at 9.
So what if it is large. Id. at 9


Social Distinction


The Department of State opined that violence against women “remained a
widespread and serious problem.” Id. at 8. The country “has the
highest murder rate of women in the world…in 2017, a woman was murdered
every 18.7 hours…” Id. at 8. In 2011, the government passed the
Special Comprehensive Law for a Violence-free Life for Women. Id. 
at 12.


On Account of


Respondent has submitted sufficient circumstantial evidence to show that
her status as a woman was “one central reason” for her harm. The ex-partner
said she was “good for nothing…” Id. at 11.


== = =


“Women in El Salvador” are a cognizable particular social group, ruled IJ
Emmett Soper Arlington VA. His 17-page Opinion, dated October 28, 2019 is
published on the Domestic Violence page of the Louise Trauma Center
website, as “IJ 10-28-19.”


Respondent was threatened and raped by her husband. Opinion at
page 6. Violence against women “remained a widespread and serious
problem…a large percentage of the population considered domestic violence
socially acceptable…El Salvador has one of the highest recorded rates of
femicides in the world…” Id. at 6. [cleaned up; citations omitted] 

“Women in El Salvador” is a cognizable particular social group. Id. at 8. Its members have immutable characteristics. Its
boundaries are “precise, clearly delineated, and identifiable: women are
members and men are not.” Id. at 9. Being a woman is “a clear
benchmark.” Id. at 9. Everyone defines “women” the same way. So
what if it is large. Id. at 10. Everyone would define this group
the same way; society would agree who are in the group, and who is not.


Three federal courts have held that women in a country can be a particular
social group:


Mohammed v. Gonzales, 
400 F.3d 785, 797 (9th Cir. 2005)


Hassan v. Gonzales, 
4848 F.3d 313, 518 (8th Cir. 2007)


Fatin v. INS, 
12 F.3d 1233, 1240 3d Cir. 1993)


Id. 
at 14.


Social Distinction


Violence against women is a “widespread and serious problem..a large
percentage of the population considered domestic violence socially
acceptable…El Salvador has one of the highest recorded rates of femicides
in the world…” Id. at 8-9. [cleaned up; citations omitted] Women
are subject to “discrimination and El Salvador ranks as one of the most
dangerous countries in the world for women.” Id. at 9. This shows
that women are “set apart, or distinct” from others. Id. at 9.


Nexus


Respondent was “not a random victim of” the husband. Id. at 14.


The Department of State found that “a large percentage of the population
considered domestic violence socially acceptable…violence against women,
including domestic violence, remained a widespread and serious problem. Id. at 15.


Yes, the husband was an alcoholic; this may have been a reason. But,
Respondent’s being a woman was “one central reason.” Respondent has little
direct evidence of motive; but “none is required: circumstantial evidence
can suffice.” Id. at 15. The husband had impunity to harm her
because she was a woman. Id. at 15.


Matter of A-B-


In Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), the Attorney
General overruled Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA
2014). But my decision is not based on A-R-C-G-. 


“Nothing in Matter of A-B- changed the standards for
analyzing…whether a group is a particular social group.” Id. at
16. Many of the statements in Matter of A-B- “are simply dicta, or
non-binding commentary.” Id. at 16. The government has taken this
same position in federal court litigation involving Matter of A-B-. See Grace v. Whitaker, 344 F. Supp. 3d
96, 138 n. 2 (D.D.C. 2018)


= = = = =


GUATEMALA


“Guatemalan women” are a cognizable particular social group, ruled IJ
Steven Morley, Philadelphia, PA. His 19-page Opinion, dated May 15, 2019 is
published on the Domestic Violence page of the Louise Trauma Center
website, as “IJ 5-15-19.”


At the age of 15, Respondent was living with her grandmother in Guatemala.
One night while walking home an unknown man tried to kidnap her. She kicked
the man and was able to escape. Some days later, a group of shirtless men
whistled at her. She did not report anything to the police. She fled to the
United States. Held: these events do not constitute past persecution.


Opinion 
at page 8.


However, she does have a well-founded fear of future persecution, because
there is a “pattern and practice of violence against women in Guatemala.” Id. at 10. Women there suffer “brutal forms of violence because of
their gender…[at the hands of] romantic partners, criminal groups, and the
police.” Id. at 10. There is a “high rate of crime against
women…in 2013,…an average of two murders of women per day.” Id. at
10.


In response, the government established “a 24-hour court in Guatemala City
to offer services related to violence against women…The judiciary also
created special courts in certain departments to handle cases involving
violence against women, and Guatemala’s Public Ministry established a
special prosecutor for femicide.” Id. at 10-11.


“DHS has not presented any evidence to refute the depiction of Guatemala as
a country rife with danger for women merely because they are women…” Id. at 11.


“Guatemalan women” is a cognizable particular social group because it is
immutable, particular, and socially distinct. Id. at 13. There are
clear benchmarks for determining who falls within this group and who does
not. So what if this group is large.


Matter of A-B- 
“contains several statements, in dicta…” Id. at 14.


Respondent’s group is “socially distinct.” Id. at 15. The UNHCR
has noted the “persistence of very high levels of violence against women”
in Guatemala. Id. at 15. One woman noted: “The gangs treat women
much worse than men.” Id. at 15-16.


The government “has recognized that Guatemalan women require special
protection…[it] enacted a femicide law in 2008;… a special prosecutor and
court for female crime victims, as well as a24-hour court…” Id. at
16. So, Respondent has shown that Guatemalan women are “set apart, or
distinct, from other persons.in some significant way.” Id. at 16.
[citation and quotation omitted.


Nexus


The “Court can consider both direct and circumstantial evidence of a
persecutor’s motive and may make reasonable inferences based on the
evidence in the record.” Id. at 17. “Respondent testified that
women in Guatemala are targeted for harm simply because of their gender…” Id. at 17. Other evidence of record agrees. Respondent’s status as
a woman is “one central reason” for her feared persecution. Id. at
17.


The government is “unable or unwilling” to protect her. Id. at 17.
The Attorney General set forth three different standards in Matter of A-B-: 1] “unable or unwilling to control;” 2] “condoned;” and 3] “complete helplessness.” Id. at 17 note 5. #1
and #2 “are the same.” No case in the Third Circuit used the test “complete
helplessness. In Grace v. Whitaker, 344 F. Supp. 3d 96, 130
(D.D.C. 2018) the Court held that the “complete helplessness” standard is
not “permissible.” Id. at note 5, at the bottom of page 18.


The government is “understaffed, underfunded, and inadequately
trained…[there is] virtual impunity for gender-based crimes.” Id. 
at 18.


“Guatemala has the third highest rate of femicide in the world, with a
conviction rate of only one or two percent.” Id. at 18.


= = = = = = =


“Women in Guatemala” is a particular social group, ruled IJ Emmitt Soper
[Arlington VA]. A two-page summary of his oral decision of March 27, 2019,
was prepared by counsel for respondent, Ms. Ofelia Calderon, and is
available on the Domestic Violence page of the Louise Trauma Center
website, as “IJ 3-27-19.”


Respondent is a 60-year-old indigenous woman who suffered domestic violence
from her brother and partner. DHS argued that A-B- controls. IJ
Soper said that case does not change the rules for cognizability. It
contains non-binding dicta. The government in Grace v. Whitaker 
agreed with all this.


Every society agrees that men are different from women; and every society
makes distinctions between them. Women are in the group; men are not. So
what if it is a large group.


DHS argues that the group is too internally diverse. Women are of different
ages, and wealth. So what. Matter of C-A- ruled that we do not
need cohesiveness or homogeneity. Consider “clans.” They are internally
diverse. Consider gays: they are diverse.


DHS argues the partner was an alcoholic and wanted money. Yes, but you have
more than one motive. There could be “three central reasons.” Here, her
status as a woman is one central reason. The partner made derogatory
remarks about her being a woman.


= = = = =


“Guatemalan women” are a cognizable particular social group, ruled IJ Paul
Gagnon [Boston MA.] His 15-page Opinion, dated June 18, 2019 is published
on the Domestic Violence page of the Louise Trauma Center website, as “IJ
6-18-19.”


Respondent was abused and raped by her husband. He told her to stop working
outside the home. Opinion at pages 12-13.


The particular social group of “Guatemalan women” is cognizable under the
law. Id. at 9.


It is immutable: no one should have to change nationality or gender. It is
particular: the group has definable boundaries. There is a “clear benchmark
for determining who falls within the group and who does not. Id. 
at 9. Gender and nationality “have commonly understood meanings.” Id. at 9. This group is large, but so what. Id. at 10.
“Somali females” was recognized as a group in Hassan v. Gonzales,
484 F.3d 513, 518 (8th Cir. 2007). Id. at 11.


The Court’s analysis is consistent with Matter of A-B-, 27 I&N
Dec. 316 (AG 2018), “which contains several statements in dicta.” Id. at 11.


Socially distinct


The group must be “perceived as a distinct social group by society.” Id. at 11. The Department of State explains that “violence against
women…remained serious problems.” Id. at 12. Specific laws to
protect women were passed, specialized courts were established, and a
national alert system was created. Id. at 12. This shows social
distinction. Guatemalan women are indeed “set apart, or distinct, from
other persons in some distinct way.” Id. at 12.


Nexus


The words of husband show motive. “He told her she ‘needed to fulfill [her] role as his wife.” He told her “he did not like his wife going to work.” Id. at 13.


There is a “culture of machismo;…men feel as though they can control women
and oftentimes use violence as a means of exerting that control. A
staggering number of women in Guatemala face gender related violence.” Id. at 13.


The government is unable or unwilling to protect Respondent. In Matter of A-B-, 27 I&N Dec. 3316 (A.G. 2018) the phrase
“complete helplessness” was used, but in the First Circuit, this is not
correct. Id. at 13 note 1. In Grace v. Whitaker, 344 F.
Supp. 3d 96, 130 (D.D.C. 2018) the Court held that the “complete
helplessness” standard is not “permissible.” Id. at note 1, at the
bottom of page 14.


= = = = =


COMMENTS BY THE AUTHOR


In a case from Honduras, the Fifth Circuit recently reversed the denial of
a motion to reopen: Inestroza-Antonelli v. Barr,2020 U.S. App.
LEXIS 11198 (5th Cir. April 9, 2020). The Court noted there had
been a great increase in violence against women, and that many protections
for women were reduced. The Gender Unit of the National Police has been
restricted; the power of the Municipal Offices for Women has been severely
diluted; the rate of homicides for women doubled; and the status of the
National Institute for Women was downgraded. Id. at *3.


In another case from Honduras, the Fourth Circuit strongly suggested that
“unmarried mothers living under the control of gangs” is a particular
social group. Lagos v. Barr, 927 F.3d 236, 249 (4th
Cir. 2019). Respondent was unmarried and had a child. A gang threatened her
after she refused to pay it money.


Yes, the gang wanted money. But: “The protected ground need not be the only
reason- or even the dominant or primary reason- for the persecution.” Id. at 250. Respondent’s membership in this group “was one reason
why she, and not another person, was threatened.” Id. at 250. She
was not threatened when she was married. Her sister-in-law, living in the
same house, was married and was never threatened. Only after her marriage
ended was she threatened.


The IJ denied the particular social group claim because it was not small
enough. But, “as the government conceded…a particular social group need not
be small.” Id. at 253. Yes, there is a great deal of gang violence
throughout Honduras. But unmarried mothers are indeed targeted specially.
Dr. Boerman explained that unmarried mothers are “especially vulnerable to
gang violence.” Id. at 250. Dr. Manwaring agrees. Id.

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

<!–AUTHOR BIO START–>

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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