h-r-m-, axxx xxx 381 (bia march 14, 2016)

8/17/2019 H-R-M-, AXXX XXX 381 (BIA March 14, 2016)

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B ro wn Ch ri s ti na E s q.

U .S . e par t m e n t J us ti ce

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En c losu re

P a nel Me m be r s

Adkins -Bla nch, Cha rles K.

G reer , Ann e J.O Her ron, Marg aret M

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Don.ni_ 2 A AD o nna C arr C h ie f C le rk

User team : Do cket

For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

Cite as: H-R-M-, AXXX XXX 381 (BIA March 14, 2016)


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:s e partm e nt o J ustic eE xecu tive O ff ice f or Im m i grati on R evie w

Fal ls C hurch , V irgin ia 2 2041

Fil e s:

I nre I i i ~

N R E M O V A L P R O C E E D I N G S

A P P E A L

D ecis ion o f lie Bo a rd of Im mi grati on A ppe als

Date:M R ? frtfi

O N B E H A L F O F RES P O N D E N T S : C hristin a Brow n, Esqu ire

O N B E H A L F OF D HS: Tyler R . Woo dAssis t an t Ch ie f Cou n sel

C H A R G E :

N o tice: Sec. 212(a ) (6)(A) ( i), I&N Act [8 U.S.C . § l 18 2(a)(6) (A)(i)] -Pr e sent w ithout b eing a d mitted or par o led

A PPLIC ATIO N : A s y lwn; w ithhol d ing of remov a l; Con v ention Again s t Tort u re

The respon d ents, n atives and c itizens o f Ho n duras, appea l from the Im migrat ion Ju d ge ' sJuly 1 2015 , deci s ion d e nying their a pplica t ions fo r asyl w n, w ithhold ing o f remov a l, and

pro tect ion under the C o nvent i on Ag a inst T orture. Se e sectio n s 208 and 2 41(b)(3 ) o f th e

Im migrat ion and Nat io nality A ct, 8 U.S.C. §§ 115 8, 123 l(b)(3) ; 8 C.F .R. § 1 208.1 6 (c). T he

appea l will b e susta ined an d the re cord w ill be r e mande d.

W e revi e w a n Immig ration J udge's :findin gs of fact, in c luding findin gs reg a rding w itnes s

cr e dibilit y and w hat is likely to happ en to t h e resp o ndent , under a clea rly err o neous stand a rd.

8 C.F.R . § 10 0 3.l(d)( 3)(i); a tt er o Z -Z -0-, 26 l N D ec. 5 8 6 (BI A 2015 ) . We review allother issues, includ ing qu e stions of la w , discre tion, a n d jud g ment , under a de n o vo sta ndard.

8 C . F R. § 1003 .1 ( d)(3)( i i). Th e respo ndents ' applic ations were f i led aft e r May 11, 20 05, an d

the refore are go v erned by the provisi ons of the RE A L ID Act. atte r o S-B- 24 I& N Dec. 42(B IA 20 0 6).

Due to the cir c wnsta n ces pr esente d in thi s case, a nd to resolve any is sue reg a rding jur isdic t ion

in thi s case, we wi ll adjud icate t h e inst a nt app eal in the exe rcise o f our c e rtifica t ion au thority . Se e 8 C.F.R . § 10 0 3. l (c) .



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A206 715 381 et al.

The lead respondent is the mother of the two minor respondents.2 The respondent claims herformer boyfriend, the father of her daughter, abused her and will abuse her again i f she returns to

· Honduras because of her membership in a particular social group which she defined as "womenwho are victims of domestic violence in a relationship she cannot leave" (I.J. at 8; Tr. at 16).She also defined her particular social group as "women who cannot leave a relationship" (Tr. at

52).

The Immigration Judge found that the respondent did not establish her eligibility for asylumunder section 208 of the Act. She found that the respondent suffered harm that rose to the level ·of persecution, but concluded that the respondent's proposed group defined as "women who arevictims of domestic violence in a relationship she cannot leave," was not a cognizable particularsocial group (I.J. at 8-11 ). Alternatively, the Immigration Judge found that even i f the

_. resJJOJ: clent define_d a cognizab_i_e parti~iil _social gr011p, she_ < id n.c,t estalJl_ish that the Honduran_government was unwilling or unable to control the persecutor in this case (I.J. at 11 ). TheImmigration Judge also found that the respondent did not present available corroborativeevidence such as medical records to document her past persecution (l.J. at 11).

We agree with the Immigration Judge's finding that the respondent suffered harm that risesto the level of persecution (1.J. at 8). We also agree with the Immigration Judge that the groupdefined as "women who are victims of domestic violence in a relationship she cannot leave," isnot a cognizable particular social group insofar as it is defined solely by the risk of persecution(l.J. at 10-11). See Matter o f A-R-C-G- 26 l N Dec. 388,393 n.14 (BIA 2014); Matter ofW G-R- 26 I&N Dec. 208, 215 (BIA 2014) ("Persecutory conduct aimed at a social group cannotalone define the group, which must exist independently of the persecution.").

However, we agree with the respondent's appellate argument that the Immigration Judge didnot consider another group she proposed, namely, "women who cannot leave a relationship" (Tr.

at 52). See Respondent's Brief at 6-8. We agree with the respondent that this proposed group isa cognizable particular social group and that she is a member of that group.

The Board recently clarified the elements required to establish a cognizable particular socialgroup. See Matter o f W-G-R- supra; see also Matter of M-E-V-G- 26 l N Dec. 227 (BIA2014 . n applicant for asylum or withholding of removal based on membership in a particularsocial group must establish that the group 1) is composed of members who share a commonimmutable characteristic, 2) is defined with particularity, and 3) is socially distinct within thesociety in question. See Matter ofW-G-R- supra at 212-18; Matter o f M-E-V-G- supra at 237.We also recently held that depending on the facts and evidence in an individual case, victims ofdomestic violence can establish membership in a particular social group that forms the basis of aclaim for asylum. Matter of A-R-C-G- supra. In that case, we held that under the facts andevidence, "married women in Guatemala who are unable to leave their relationship" was acognizable particular social group.

2 We will refer to the lead respondent as "the respondent." The minor respondents arederivatives of their mother's asylum application. See section 208(b)(3)(A) of the Act.

2



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A206 7 5 38 et al.

ORDER: The appeal o the denial o asylum under section 208 o the Act is sustained.

FURTHER ORDER: Pursuant to 8 C.F.R. 1003.l d) 6), the record is remanded to theImmigration Judge for the purpose o allowing the Department o Homeland Security theopportunity to complete or update identity, law enforcement, or security investigations orexaminations, and further proceedings, i necessary, and for the entry o an order as provided by8 C.F.R. 1003.47 h).


h-r-m-, axxx xxx 381 (bia march 14, 2016)

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