To: Paige Berges
From: Jiani Xue
Date: November 20, 2014
Re: Margo Zephra’s application on asylum and withholding of removal because of her fear of future persecution on account of membership in her husband’s family
QUESTION PRESENTED
Whether the alien is likely to be granted asylum based on a well-founded fear of persecution due to her membership in her husband’s family where her husband and her brother and nieces in-law were been kidnapped, shot and trafficked.
Whether the alien is likely to be granted withholding of removal due to unwilling to return to Bohemia because of the persecution on account of her membership in her husband’s family.
BRIEF ANSWER
The alien is likely to be granted asylum because she has a well-founded fear of persecution due to her membership in a cognize social group—her husband’s family and the government in Bohemia is unwilling to protect her.
The alien is likely to be granted withholding the removal because she’s unwilling to return to Bohemia due to the persecution on account of her membership in her husband’s family.
FACTS
The alien Margo Zephra is a native and citizen of Bohemia. She has been married to her husband for 22 years. Mrs. Zephra’s husband, Aldous Zephra was employed as a driver in Bohemia by a criminal Claudio Bellini. The U.S. government recruited Mr. Zephra as a material witness in its persecution of Bellini and granted Mr. Zephra temporary status in the U.S. to serve as a witness. However, Bellini escaped U.S. custody, and so the U.S. government deported Mr. Zephra back to Bohemia.
Once back in Bohemia, Bellini announced his plans to target Mr. Zephra because Mr. Zephra had planned to testify against Bellini in the U.S. courts. Bellini sent members of his crime gang to Mr. Zephra’s home, kidnapped Mr. Zephra and his brother, then beat and shot Mr. Zephra. Mr. Zephra survived but spent months recovering from the near fatal shooting.
A few months later, two of Mr. Zephra’s nieces, Sofia and Lucinda, were kidnapped by Bellini’s associates and trafficked to Italy. The nieces were able to escape to the U.S. and obtain asylum. Mr. Zephra’s brother, who was also kidnapped and present when Mr. Zephra was shot, fled to Greece and went in to hiding.
Ms. Zephra and her husband reported the shooting to the Bohemian police but that the police said that the problem was “between him [Mr. Zephra] and Bellini.” Ms. Zephra says that she and her husband called the police several times to report Bellini’s crimes, but the police did not investigate or arrest Bellini or his associates. After Ms. Zephra escaped to the U.S., a third niece was kidnapped and trafficked by Bellini’s associates. The U.S. Country Report on human rights practices in Bohemia indicates that government corruption is high, and that police are commonly bribed, especially by powerful criminals like Bellini.
DISCUSSION
An alien who is presently in United States may apply for asylum. To establish eligibility for asylum and withholding of removal pursuant to the Immigration and Nationality Act (“INA”), an alien bears the burden of proof to establish that the alien is a refugee. To establish that the alien is a refugee, the alien has to proof that he or she has a well-founded fear of persecution on account of his or hers race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1158; 8 U.S.C. § 1101. A. Establish a Well-Founded Fear of Future Persecution A “well-founded fear” means that “a reasonable person in [the alien's] circumstances would fear persecution if [she] were to be returned to [her] native country.” Carcamo–Flores v. I.N.S., 805 F.2d 60, 68 (2d Cir. 1986). “The term ‘well-founded fear’ implies both a subjective and an objective element. [The alien] must first establish the subjective element,” i.e., that [she] has a fear of persecution. Id. at 64. In this case, the alien should first prove that she has a fear of persecution subjectively. Bellini kidnapped and beat and shot the alien’s husband. Other family members such as her brother in-law and nieces in-law were also been kidnapped and trafficked. As the victim’s wife, the alien would likely be threatened if she returned to her native country because she is a family member of her husband’s as other victims. Thus the first element of well-founded fear is met. To make that fear well-founded and thereby qualify for asylum, however, the alien must also demonstrate that there are objective facts supporting that fear. Id. Once subjective fear is demonstrated, the applicant need only show that such fear is grounded in reality to meet the objective element of the test. Melendez v. U.S. Dept. of Justice, 926 F.2d 211, 215 (2d Cir. 1991) In Carcamo, the alien was involved in a strike at a factory. Seven strikers were killed in that incident. Those participants who had survived the strike were known to the factory owners and felt threatened by them. The court found that there was sufficient evidence to meet the legal test according to the objective facts. 805 F.2d at 64. Furthermore, in Tambadou v. Gonzales, the court held that “a fear is objectively reasonable even if there is only a slight, though discernible, chance of persecution.” 446 F.3d 298, 302 (2d Cir. 2006). In this case, the alien testified Bellini had announced his plans to target the alien’s husband and almost killed him. The chance of persecution is quite big and more than “slight” because other family members had already been persecuted. [T]he applicant's testimony will be enough if it is “credible, persuasive, and refers to ‘specific facts that give rise to an inference that the applicant has been or has good reason to fear that he or she will be singled out for persecution.’ ” Melendez v. U.S. Dept. of Justice, 926 F.2d at 215 (quoting Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir. 1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). Thus the alien can establish a well-founded fear of future persecution both in subjective and objective ways. B. On account of Membership in Family where Her Husband and Her Brother and Nieces in-Law Had Been Persecuted
First, the alien should prove that she’s in a cognized social group. M–E–V–G– summarized the BIA's criteria for identification of “particular social group” as follows: (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question. Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014). Family is a cognizable social group according to Diallo v. Holder, 498 Fed. Appx. 83, 85 (2d Cir. 2012) (citing Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008) (“Our prior opinions make it clear that we consider family to be a cognizable social group within the meaning of the immigration law.”)) In this case, the alien has been married her husband for 22 years, she shares a common immutable characteristic with her husband and she cannot change because it is fundamental to their individual identity, thus her family is a cognizable social group and her membership is valid here.
Second, the alien should prove that the fear of persecution is on account of her membership in her family. In Vumi v. Gonzales, the alien was detained and hit because the persecutor was looking for her husband and she didn’t reveal her husband’s location. 502 F.3d 150, 155 (2d Cir. 2007). The court held that “[t]he alien's membership in her family may, in fact, constitute a ‘social-group basis of persecution’ against her.” Id. Similarly in this case, the alien’s husband and brothers and nieces in-law were kidnapped, shot and trafficked. As it held in id., “if such membership may support a social group grounding of persecution, it must be considered.” Based on the facts in this case, the court is likely to hold that the alien can establish the fear of persecution on account of her membership in a valid particular social group—her husband’s family.
Furthermore, the protected ground needs not be the sole motive, in Aliyev v. Mukasey, the alien was arrested, detained, and beaten because of his political opinion. He was also arrested and questioned about his political activities, and after a television interview, when he criticized the police and politicians, he was attacked by several men. 549 F.3d 111, 119 (2d Cir. 2008). The court held that "persecution on account of the victim's political opinion," does not mean persecution solely on account of the victim's political opinion. Where there are mixed motives for a persecutor's actions, an asylum applicant need not show with absolute certainty why the events occurred, but rather, only that the harm was motivated, in part, by an actual or imputed protected ground. Id. at 113. In this case, the alien also needs not to show why the harm occurred, she only needs to prove that the action caused harm and it was under protected ground. C. Unable or Unwilling to Avail Herself of the Protection because the government in Bohemia Had been Bribed
Private acts can constitute persecution if the government “is unable or unwilling to control it.” Pavlova v. I.N.S., 441 F.3d 82, 92 (2d Cir. 2006). In Pavlova, the alien was threatened by the police to sell her to the prostitution. She met with both a local official and a village leader to inform them of the incident and request protection. Both leaders said that they could not help her. The court held that “private acts can constitute persecution if the government “is unable or unwilling to control it.” 441 F.3d at 92.
In this case, the government in Bohemia was unwilling to control the persecution. The alien and her husband called the police several times to report Bellini’s crimes, but the police did not investigate or arrest Bellini or his associates because the police were commonly bribed, especially by powerful criminals like Bellini. Thus this can constitute persecution because the government in Bohemia was unwilling to control the persecution. D. Withholding of Removal--the Alien’s Life and Freedom Would be Threatened in Bohemia Because of her Membership in Her Husband’s Family “The Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.” Abankwah v. I.N.S., 185 F.3d 18, 21-22 (2d Cir. 1999). To be eligible for withholding of deportation requires a clear probability that her life would be threatened on account of her membership in the family. Id. The alien’s husband and other family members were prosecuted by Bellini, she’s unwilling to return to Bohemia because Bellini had claimed to target her family. Her life and freedom would be threatened in Bohemia. The fact is sufficient to prove the alien’s fear of future persecution. Thus, the court might hold that withholding of removal would be granted.
CONCLUSION
The alien is likely to be granted asylum and withholding of removal. Because she can establish a well-founded fear of future persecution on account of her membership in her husband’s family where her husband and her bother and nieces in-law being prosecuted by Bellini. She also can prove that she cannot be protected in Bohemia because the government is unwilling to protect her. Thus both of her claims might be granted.