Asylum: Persecution on account of Membership in a Particular Social Group

By: Cesar G. Cutaran, Esq.
Even in childhood back in the Philippines, Zenaida already displayed an uncanny business acumen.   She would use her glib and charisma to buy at a discount whatever items are popular at the time and resell them at a handsome profit.  Eventually, she graduated with a degree in Banking and Finance from a reputable university.  Before long, she was able to the find her way to the U.S. on a business visitor’s visa.Zenaida overstayed her visitor’s visa and began working for a jewelry store as a cashier on an “under the table” arrangement. With her excellent business background, it wasn’t long for Zenaida to gain the trust of her employer who consequently promoted her to progressive positions of responsibility.  That’s when Zenaida found out that the jewelry store was being used as a front for an extensive and elaborate money laundering scheme.  With no other source of income to support herself, Zenaida was constrained to remain in the employ of the jewelry store and acquired deeper knowledge of its operations as well as the knowledge of the identities of people involved in the illegal scheme.  With substantial salary increases, generous bonus, and other perks given to Zenaida, she found herself actively using her banking knowledge in running the day-to-day operations of the money laundering scheme.

Unbeknownst to Zenaida, the FBI and US ICE (Immigration and Customs Enforcement) have long been monitoring the jewelry store’s activities.  Finally, federal agents conducted a raid on the jewelry store and arrested all the staff therein, including Zenaida.  In exchange for dismissal of felony charges against Zenaida, she turned government witness.  With her cooperation, the FBI and US ICE were able to make dozens of arrests that resulted in  convictions.  However, other individuals identified by Zenaidaand convicted were able to leave the U.S. for the Philippines where they remain at large.  Shortly upon her release by the authorities, Zenaida began receiving death threats from families of those convicted and jailed as well as from those fugitives in the Philippines.  Also, she was placed on removal proceedings for her visitor’s visa overstay, a violation of U.S. immigration law.

During her removal proceedings, Zenaida applied for a grant of asylum alleging that the numerous death threats from both here in the U.S. and the Philippines created in her a well-founded fear of persecution if she were to return to the Philippines.  Will Zenaida succeed in her application for asylum?

The Attorney General may grant asylum to a “refugee.”  Under the Immigration and Nationality Act (INA),  a refugee is an alien unwilling or unable to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” [italics supplied].  On the facts of Zenaida’s case, she can reasonably argue that she is entitled to asylum because, as someone who testified against individuals who engaged in money laundering, she is a member of a particular social group, by reason of which she has well-founded fear of persecution if she were to return to the Philippines.  As a threshold requirements,  Zenaida must prove: 1) that the numerous death threats rise to the level of persecution;  2) that the persecution (death threats) was on account of one or more of the protected grounds (here, membership in a particular social group); and 3) that the Philippine government will be unable or unwilling to control the fugitives who gave death threats to her.

The term “particular social group” is ambiguous, confusing and the subject of much litigation.  The term was first interpreted by the Board of Immigration Appeals in a 1985 case as a “group of persons all of whom share a common, immutable characteristic.”   In a 2006 case, BIA refined the standard by ruling that an asylum applicant must show that his/her proposed particular social group has “social visibility” and “particularity.”  Subsequent BIA cases construed the “social visibility” requirement as one of general social “perception” (as understood by others and recognizable by other members of the community) rather than “on sight” visibility (a bystander can literally see the characteristics that make a person a member of the group). In a recent February 2013 case, the BIA ruled that the “perception of the persecutors may matter the most.”  In other words, when a particular social group is not visible to society in general ( in this case, witnesses/informants like Zenaida who are usually hidden by the government), social visibility may be shown by the looking to the persecutors (in Zenaida’s case, the fugitives in the Philippines who have made death threats to her).  In a 2008 case, the BIA ruled of the “particularity” criteria is satisfied if the proposed group “ would be recognized … as a discrete class of person.”  The “particularity” requirement in Zenaida’s proposed group (government witnesses/informants) can be met through verification of court records identifying the witnesses/informants and documenting their testimony.

Atty.  Cesar G. Cutaran is a partner in The Law Firm of Chua,Tinsay and Vega (CTV) –  a full service law firm with offices in San Francisco, San Diego, Sacramento and Manila.  The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship.   Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; (916) 509-7280; ccutaran@ctvattys.com.