Article: “Women Are Equal To Men” And Other Successful “Political Opinions” From Central America, Leading To Asylum By David L. Cleveland

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“Women Are Equal To Men” And Other Successful “Political Opinions” From Central America, Leading To Asylum
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David L. Cleveland
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Five immigration judges found viable “political opinions” in cases from
Mexico, El Salvador, and Guatemala. “Women are equal to men;” “Feminism;’”
Being anti-gang;” and “Witnessing a drug sale by a police officer;” were
opinions leading to asylum. This article will summarize the five cases.


WOMEN ARE EQUAL TO MEN


“Women are equal to men” is a political opinion, ruled IJ Print Maggard
[Arlington VA] His 16-page Opinion, dated December 6, 2019 is published on
the Political Opinion page of the Louise Trauma Center website, as “IJ
12-6-19.” [www.louisetrauma.weebly.com.]


Respondent was threatened and raped by Carlos, her partner, in El Salvador. Opinion at page 4. Machismo is the belief “that a man can
impose his will on a woman, who has to obey everything he says…Respondent
disagrees with [this and] believes women are equal to men and have the same
rights as men. Respondent would express this view to Carlos [and he would
become angry]. “Id. at 4.


Respondent called the police over 10 times. Carlos was arrested, convicted,
and sentenced to eight years in prison. After serving three years, he was
released. Id. at 6. He made more threats; he was brought back to
court, and was told he would be returned to prison if he continued his bad
behavior. But 30 minutes later, Carlos threatened Respondent again. Id. at 6


“For an opinion to be deemed political, the actions taken in furtherance of
that opinion must be ‘motivated by an ideal or conviction’ and not
motivated by personal benefit, including fear of retribution or an
employment benefit.’” [quoting Saldarriaga v. Gonzales, 402 F.3d
461, 466 (4th Cir. 2005). Id. at 9.


“The Court finds that the belief that women are equal to me is a political
opinion as contemplated by the Act.” Id. at 9. The Third Circuit
said it has “little doubt that feminism qualifies as a political opinion
within the meaning of the relevant statutes.” Fatin v. INS, 12
F.3d 1233, 1242 (3rd Cir. 1993).


Matter of R-A-


Matter of R-A-, 
22 I&N Dec. 906 (BIA 1999; A.G. 2001) is instructive. The Respondent in
that case claimed she suffered harm because of her political opinion;
however, the Board concluded that her “persecutor harmed her regardless of
her political beliefs.” Opinion at 10. “The facts in this case…are
distinguishable.” Id. at 10. Here, Respondent was specially abused after she expressed her views. “Whenever the Respondent would tell
Carlos that she was not his property, he would hit her and yell at her that
she would always be his.” Id. at 10.


The actions of Carlos “appear to be taken in order to punish the Respondent
for her belief.” Id. at 11. He wanted “to overcome her belief.”
Respondent “could have avoided persecution by holding and expressing a
different political opinion.” Id. at 11. Respondent “stated that
she would occasionally be submissive to Carlos in order to avoid his
abuses, and…this worked…” Id. at 11.


== = = = =


FEMINISM


“Feminism” is a political opinion, ruled IJ Miriam Hayward,[San Francisco
CA]. Her 22-page Opinion, dated September 13, 2018 is published on the
Political Opinion page of the Louise Trauma Center website, as “IJ
9-13-18.”


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. There is a great deal of violence against females in Mexico.


Respondent “expressed her belief in the equality of men and women… [and
that] as a woman, she has the right to work. [These views] constitute a
political opinion.” Id. at 11. There is “little doubt that
feminism qualifies as a political opinion…” Fatin v. INS, 12 F.3d
1233, 1242 (3d Cir. 1993). The husband beat her because she refused to quit
her job. So, the husband “persecuted Respondent on account of her feminist
political opinion.” Id. at 12.


= = = =


BEING ANTI-GANG


“Being anti-gang” is a political opinion, ruled an immigration judge in
Arlington VA. Her 18-page Opinion, dated December 4, 2019 is published on
the Political Opinion page of the Louise Trauma Center website, as “IJ
12-4-19.”


Gang members began recruiting the son of Respondent in May 2018, in a small
town in El Salvador. Opinion at page 3. The son refused; the gang
said they would kill his brother and mother. Respondent and son fled to
United States. The gang then demanded that Respondent’s mother, still in El
Salvador, pay “rent.” Id. at 4.


Dr. Ellen Moodie testified that a gang is a “state-like” power that values
loyalty. Id. at 7.


Refusal to comply with demands makes you a “traitor.” Flight to the United
States “demonstrates their lack of loyalty” and shows “disrespect.” Id. at 7.


The gang threatened to kill Respondent. “This credible death threat alone
qualifies as harm sufficiently severe to constitute past persecution.” Id. at 13.


Imputed Political Opinion


“The Fourth Circuit recently recognized that an individual’s resistance to
gang demands may constitute an imputed political opinion.” Lagos v. Barr, 927 F. 3d 236, 251 (4th Cir. 2019).
Eligibility for asylum is “a fact-intensive inquiry.” Id. at page
255 n. 4. Opinion. at 14. Other cases which denied asylum, denied
them based on the record in those cases. Here, the record is more detailed.


The “evidence shows that gangs have become a ‘substitute government’ in El
Salvador which rival or replace legitimate political entities in the
country.” Id. at 14. Gangs control their territories: they do not
let people living in the territory of a rival gang to enter; they have
“systems of surveillance and security” that help them gather intelligence
on residents and those transiting; they raise revenue through extortion,
and “seek to control schools and public transit, just like the legitimate
government.” Id. at 14.


“Gangs use violence to maintain their political power…. they kill anyone
whom they consider to be an enemy.” Id. at 14.


The gang believed that Respondent “opposed their ability to exercise
absolute control, including over the recruitment of her son.” Id. 
at 14. Respondent “is part of a group of people widely recognized as
enemies.” Id. at 14. Respondent never openly expressed a political
opinion, but the gang “believed she did not support their control over the
area they dominate.” Id. at 15.


The government is “unable or unwilling to control” the gangs. Id. 
at 16. Impunity “is a major problem… [there is] inadequate funding and
limited resources.” Id. at 16. Many police officers “are complicit
or actively engaged with gangs.” Id. at 16. “Gangs operate in 247
of the country’s 262 municipalities.” Id. at 17.


= = = = =


BEING ANTI-GANG


“Being anti-gang” constitutes a political opinion, ruled IJ David Koelsch
[Baltimore MD.] His 14-page Opinion, dated February 12, 2020 is published
on the Political Opinion page of the Louise Trauma Center website, as “IJ
2-12-20.”


MS-13 gang members demanded rent from Respondent in El Salvador.


Later, they demanded that he give information to them about members in the
community. He said he needed time to think. The gang said that if he did
not obey, they would kill his child or his mother. Opinion at page
3. Time went by; the gang returned, and pointed a gun to his head and beat
him. Held: this is past persecution. Id. at 10.


“The Fourth Circuit recently recognized that an individual’s resistance to
gang demands may constitute an imputed political opinion.” Lagos v. Barr, 927 F. 3d 236, 251 (4th Cir. 2019).
Eligibility for asylum is “a fact-intensive inquiry.” Id. at page
255 n. 4. Opinion at 10-11. Other cases which denied asylum,
denied them based on the record in those cases. Here, the record is more
detailed.


The “evidence shows that gangs have become a ‘de facto government(s)’ in El
Salvador which rival or replace legitimate political entities in the
country.” Id. at 11. Gangs control their territories: and “take on
some of the functions of legitimate government.” Id. at 11. They
have created checkpoints at borders, they detain individuals and demand
identification. They enforce curfews and “have ordered stoppages to bus
transit. They believe that they, not the legitimate government protect
individuals, and “they charge fees for that protection.” Id. at 11


El Salvador’s president recently acknowledged this reality, telling a
reporter that gangs “have a de factor power, a real one…[gangs] charge
taxes and have a quasi-security force.” Id. at 11.


Refusing to participate in their activities is viewed as “resistance” to
their “political authority.” Id. at 11.


The UNHCR notes that persons in this situation need protection “on the
grounds of their (imputed) political opinion.” Id. at 12.


Respondent never openly expressed a political opinion, but the gang
“believed that he held an opinion in opposition to their political
authority because he did not comply with their demands…[they] imputed a
political opinion to the Respondent.” Id. at 12.


El Salvador is “unwilling or unable to control” the gangs. Id. at
12. A police officer admitted “there were gang members within the police
ranks.” Id. at 12. The UNHCR notes that in certain parts of the
country, “the Government has lost effective control to gangs or other
organized criminal groups and is unable to provide protection to
civilians.” Id. at 12.


“68 percent of individuals who reported being victims or extortion in one
survey said that authorities did ‘nothing’ to investigate the crime.” Id. at 12-13. There is weakness, corruption, and impunity. Gangs
“have their own infiltrators in the police and the military.” Id. 
at 13.


= = = = = = =


WITNESSING A DRUG SALE BY A POLICE OFFICER


“Witnessing a drug sale involving a police officer, followed by threats,
shows an imputed political opinion of being anti-corruption,” ruled IJ
Wynne Kelly [Arlington VA.] His 10-page Opinion, dated October 31, 2019 is
published on the Political Opinion page of the Louise Trauma Center
website, as “IJ 10-31-19.”


Respondent witnessed a police officer sell drugs to a student. Opinion at page 2. The officer noticed him, and threatened to kill
him. Not all threats constitute persecution, but “severe and immediate”
threats do. Id. at 5.


“Witnesses to a crime perpetrated by a corrupt police officer in Guatemala”
is not a


cognizable particular social group. Id. at 5. This group is
immutable and particular, but it lacks social distinction. Guatemalan
society “perceives all witnesses of crime as being part of a broad
group. Id. at 6. [emphasis in original]. There is insufficient
evidence that Guatemalan society perceives witnesses to particular crimes
as being different from all witnesses. See Miranda v. Sessions, 
892 F.3d 940, 943 (8th Cir. 2018)(“the record does not support
the conclusion that witnessing a gang murder placed Miranda in a socially
distinct group, particularly since he did not testify against any gang
member.”) Id. at 5.


Imputed whistleblower (anti-corruption) political opinion


Respondent witnessed the drug sale and then told his grandparents about it.
“This is also compelling circumstantial evidence that the office suspected
the Respondent spoke to someone about what he had seen.” Id. at 7.
Corruption in Guatemala “was widespread at all levels of government.” Id. at 7. The Department of State found “widespread institutional
corruption” and “widespread impunity.” Id. at 7


The officer believed Respondent would disclose the crime- “a disclosure
that the officer suspected was political in nature.” Id. at 7. To
disclose the crime would put Respondent “at great risk.” Id. at 7.
Respondent “did not seek to gain anything from disclosing what he
witnessed.” Id. at 8. “The officer’s persistence in threatening
the Respondent shows [the officer] suspected [the Respondent] held
anti-corruption beliefs that would compel him to disclose what he witnessed
regardless of the consequences.” Id. at 8.


Corruption is widespread; therefore, this officer was not a “rogue”
officer. Castor v. Holder, 597 F.3d 93, 104 (2d Cir. 2010).


= = = = =


COMMENTS BY THE AUTHOR


A recently published case from the Second Circuit supports the above
decisions.


Hernandez-Chacon v. Barr, 
948 F.3d 94 (2d Cir. 2020):


A gang member entered the house of Respondent, in Chalatenango, El
Salvador, and said he wanted to have sex with her. She refused; he tried to
rape her, but she escaped. Three days later, the gang member saw her again,
and said “since she didn’t want to do this with him in a good way, it was
going to happen in a bad way.” Id. at 98. She was grabbed and
beaten unconscious.


Mr. Bayona opined that “Salvadorans are taught from early childhood that
women are subordinate. Salvadoran society accepts and tolerates men who
violently punish women for violating these gender norms or disobeying male
relatives.” Id. at 99. “El Salvador has the highest rate in the
world of femicide with an average of 12 murders for every 100,000 women.” Id. at 100.


“Respondent contends that if she is returned to El Salvador she will be
persecuted by gang members because of her political opinion — her
opposition to the male-dominated social norms in El Salvador and her taking
a stance against a culture that perpetuates female subordination and the
brutal treatment of women. She argues that when she refused to submit to
the violent advances of the gang members, she was taking a stance against a
culture of male-domination and her resistance was therefore a political
act.


Id. 
at 102-03.


“There is ample evidence in the record to support her claim.” Id. 
at 103.


Respondent argues she was targeted for a second attack because she had
resisted the first attack. The gang member “believed she needed to be
punished for her act of defiance.” Id. at 103.


““The Fourth Circuit recently recognized that refusal to acquiesce to gang
violence can constitute an expression of political opinion.” Lagos v. Barr, 927 F. 3d 236, 254-55 (4th Cir. 2019). “
948 F.3d at 104.


“Opposition to … extortion…may have a political dimension when it
transcends mere self-protection and represents a challenge to the
legitimacy or authority of the ruling regime.”


[cleaned up; citations omitted] 

“The IJ failed to consider whether the attackers imputed an anti-patriarchy
political opinion to her when she resisted their sexual advances, and
whether that imputed opinion was a central reason for their decision to
target her.” Id. at 104


A recent case from the Third Circuit is to the contrary:


Orellana v. Att’y Gen., 
2020 U.S. App. LEXIS 12266 (3d Cir. 2020) involved a respondent from El
Salvador who spoke to police in front of his house. A gang member observed
the event. The gang then beat respondent. The IJ noted that respondent
“presented no evidence suggesting that MS-13 deemed his actions to be an
expression of anti-gang political opinion.” Id. at *5. The BIA
ruled that the gang took action, not because of his political opinion, but
because of his apparent cooperation with the police. The Third Circuit
agreed.


However, the Court remanded the case, finding that respondent was a member
of a particular social group: “persons who publicly provide assistance to
law enforcement against major Salvadoran gangs.”

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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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