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Immigration Judge Earle Wilson: “Rape is not serious enough to be persecution.”

Thanks to Ian Philabaum of the Innovation Law Lab, we now have the FY 2017 BIA remands and underlying decisions for Immigration Judge Earle Wilson.

DISCLAIMER: The following decisions contain graphic descriptions of severe physical violence, rape, and the systematic disregard thereof by Immigration Judge Earle Wilson.

As I finish writing this,  I am sick to my stomach at the Immigration Judge’s shocking disregard for victims of rape and severe, prolonged physical abuse at the hands of men.

Key excerpts from the BIA decisions and corresponding IJ decisions are below:

IJ decision: Pages 132-143: 

“The Court is mindful about the respondent’s testimony about being allegedly raped after she was living with her mother. At this time the respondent had left the relationship. In fact, shortly thereafter the respondent said that she filed a complaint for domestic abuse.

The problem with claims for domestic abuse is that they may be badly stated in cases involving harm that does not rise to the level of persecution as defined by the Immigration and Nationality Act. The term persecution is an extreme concept. Not every incident of harm rises to the level of persecution “within the meaning of’ the Immigration and Nationality Act. In essence, harm that may rise to the level of domestic abuse, including minimal touching, unwanted touching and psychological abuse, may be actionable for cases involving domestic partners. In such cases, there would be a valid claim for domestic abuse. However, those cases may not be sufficient to show that there is persecution within the meaning of the Immigration and Nationality Act.

The Court is mindful that the respondent claims that she was allegedly raped by her husband after she was living with her mother. At the time the respondent was not living with her husband. The problem with this is the respondent has not provided any corroborating evidence that would reasonably establish the facts of the case. The respondent said that she was raped by her husband, but she never filed a police report concerning the incident. She has never filed any documents regarding hospitalization to show that she was raped. The Court simply cannot speculate about facts that the respondent needs to establish by competent evidence.”

BIA decision, 

“We disagree with the Immigration Judge’s determination that the respondent did not establish her membership in a particular social group. Matter of A-R-C-G-, supra. Under the particular circumstances presented in this case, we conclude that the respondent established that the particular social group, ”women who are unable to leave their relationship” is valid. The respondent was married to her abuser for many years and they have three children in common. Additionally, the respondent testified that she was unable to leave the relationship for numerous cultural reasons and that when she did flee the marital residence her husband found her at her place of refuge and subjected her to additional harm. On this record, we do not perceive a basis to distinguish this matter from the social group rationale articulated in Matter of A-R-C-G-, supra.”

 

BIA decision, Pages 83-93:

“On review, we disagree with the Immigration Judge’s particular social group analysis. Specifically, the lead respondent advanced and the parties discussed alternative formulations of the particular social group, including groups defined by the lead respondent’s fear of harm or by her inability to leave the relationship (Tr. at 34-37). On this record, which includes the lead respondent’s credible testimony that her ex-husband regularly abused her during her marriage and continued to abuse her even after she had moved to her parents’ house, and that she believed he kidnapped her son, we see clear error in the Immigration Judge’s finding that the lead respondent was able to leave the relationship when her divorce was finalized because he initiated the divorce without her knowledge and continued to abuse her. We also see clear error in the Immigration Judge’s finding that the ex-husband’s abuse of her son showed that her membership in a particular social group was not at least one central reason for his harm of the respondent. Accordingly, we conclude that the lead respondent has shown that she suffered harm on account of a protected ground.”

IJ decision: 

“The record in this case suggests that the respondent’s ex-husband became drunk and became violent to the respondent and her son. The respondent’s testimony is that he reached out against anyone who was in his presence. The respondent has not shown that the violent episode was directed at her because of her membership in a particular social group. The respondent has not shown that she is eligible for relief.”

“The respondent remained in Guatemala for about 11 months after the last incident when her husband allegedly kidnapped the respondent’s son. There’s no evidence as to when the respondent was last harmed by her ex-husband.”

 

BIA decision, Pages 180-195: 

“The Immigration Judge’s finding that the applicant’s credibility is undermined by inconsistency between her testimony and her written statement is clearly erroneous (I.J. at 7). The applicant’s written statement and her testimony are generally consistent. To the extent they are not identical, given the nature of her claim, which includes allegations of numerous instances of abuse over a period of many months, this variance does not meaningfully undermine the respondent’s credibility. In this regard, we note that the applicant’s written statement is fairly brief and does not purport to relate the details of every incident during which the respondent suffered harm.’

Additionally, we conclude that the Immigration Judge’s consideration of the alternative bases for denying the applicant’s application for withholding of removal under the Act is insufficient. The Immigration Judge did not consider the totality of the harm the applicant experienced in assessing whether this harm rises to the level of persecution. The applicant testified that the harm she experienced included beatings, threats, and a rape, over a period of months, but the Immigration Judge’s decision does not adequately consider this testimony or the corroborative evidence (Exh 3 at Tabs A-C). See Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007) (cumulative effect of totality of harm must be considered in assessing whether applicant experienced harm rising to the level of persecution); see also Ayala v. U.S. Att’y Gen., 605 F.3d 941, 949 (11th Cir. 2010) (discussing whether sexual assault and rape rise to the level of persecution)”

IJ Decision: (which does not mention the testimony of respondent that her ex-partner raped her.)

“Respondent said that she met her partner on , 2014. It turns out that this was a neighbor who the respondent began a relationship with sometime prior to , 2014. The relationship may have begun sometime in but the respondent says they moved in together on , 2014. The respondent said that shortly after they began living together, her partner began mistreating her and insulted her. He slapped her and threw the respondent on the floor, according to the respondent.”

BIA decision, 212-226:

“We also disagree with the Immigration Judge’s particular social group analysis. The Immigration Judge held that the applicant did not show that she was a member of a particular social group consistent with Matter of A-R-C-G-, 26 l&N Dec. 388 (BIA 2014), because she did not show that she was unable to leave the relationship (I.J. at 9-10). On this record, which includes the applicant’s testimony that her former partner beat and raped her on multiple occasions in 2014 even after she had moved to her mother’s house at the end of 2013, and that he again beat her following her return to El Salvador in 2015, the Immigration Judge’s finding that she was able to leave the relationship when she moved away from him at the end of 2013 because he did not resume beating and raping her until 2014 is clearly erroneous.”

IJ Decision:

“The respondent also has presented incredible/implausible testimony concerning the incidents of rape. She said that she was raped in of 2014, of 2014, and of 2014. However, the objective document in this case seems to indicate that she lost a baby at the time that she was four weeks pregnant. This means that she lost the baby sometime in That leads the Court to conclude that the respondent must have been pregnant sometime in early September. But the respondent’s testimony is that she was last raped in of 2014. If that were true, the respondent would have been at least eight or possibly 10 weeks pregnant, not the four weeks that is set forth in the medical records. The respondent’s testimony simply cannot be squared with the medical and objective documents that she has submitted in this case.

The fact is that the respondent had a relationship with this gentleman from 2010 until 2013. She did not leave until 2015. She argues that she was unable to leave because of the incidents where he allegedly raped her in 2014. However, the fact remains that the respondent had been separated from her ex-partner for at least a year before these rapes happened. The respondent clearly had left the relationship and there is no evidence that the partner had a continuing interest in the respondent during this period of at least a year when they were separated. The respondent simply has not shown that she falls within the meaning of Matter of A-R-C-G-.”

BIA decision: Pages 247-263

“The respondents are a mother and son. They fear persecution in Guatemala because of their husband and father, who subjected the lead respondent to repeated sexual assaults, beatings, an attempted suffocation, and other forms of abuse. The Immigration Judge found that the lead respondent was not credible. The Immigration Judge also concluded that the lead respondent had not established past persecution or a well-founded fear of future persecution based on membership in a particular social group, that she had not shown government officials were unable or unwilling to protect her, and that she should be able to safely relocate elsewhere in Guatemala.

The Immigration Judge’s adverse credibility determination in this case contains clear error. The Immigration Judge found the respondent lacked credibility because she had not previously indicated that she had attempted to get medical care or police assistance and because supporting letters did not mention the attempt to get the respondent medical care. However, the respondent was never questioned regarding why her asylum application and the letters of support do not mention the incident with the police or the attempt to take the respondent to the hospital, and so was never given an opportunity to explain this omission. While the initial asylum application lacked much detail, the application nonetheless set forth fear of lead respondent’s partner as the basis for her claim, and a later application provided additional detail. The addition of further or more specific factual assertions, absent other indications of the lack of credibility, is insufficient by itself to support a finding that the respondent was not credible in her testimony. Tang v. United States Atty. Gen., 578 F.3d 1270, 1279 (11th Cir. 2009)”

IJ Decision: 

“What is troubling is that the respondent has no police report to support her contention. Indeed, this is a problem in the respondent’s case. There is no police report because the respondent said that none was provided. There is no hospital records because the respondent said that she was not able to obtain any or had to leave the hospital. The respondent says that she went to the hospital, but the declarations in the record do not support this.

“This is not a case that is similar to Matter of A-R-C-G-. Unlike A-R-C-G-, the respondent was able to leave the relationship with her partner. She is from an area of that is largely Mayan. That is apparently ten hours away from where the respondent lived with her partner. The respondent was able to leave her partner in 2014 and traveled home to her area. She remained there until of 2014. There is no evidence that the respondent’s partner had the ability to force her to go back to the relationship in Guatemala City. He apparently came there and asked the respondent whether she wanted to accompany him back. The respondent’s father and the respondent discussed it and decided that the respondent should go back to Guatemala City. What is important is that when the respondent found out that the decision to go back with her partner did not work out, she again left in of 2015 and went back to . There is no evidence that the respondent was unable to leave again in of 2015 to go to . There is no evidence that the respondent’s partner traveled back to to try to convince her to come back to Guatemala City. There is no evidence that the respondent was not safe in , or that the respondent’s partner had the ability to influence decision making of the respondent’s family in…”

 

BIA decision: Pages 264-280

The lead respondent filed her asylum application with the Immigration Court on February 11, 2016, alleging fear of harm in her home country based on her membership in a particular social group comprised of indigenous victims of child abuse unable to leave their parents (l.J. at 7; Tr. at 22-29; Exh. 2)

The lead respondent’s father physically abused her while she was pregnant (l.J. at 4; Tr. at 27). He beat her with belts and his fists and also kicked her (l.J. at 4; Tr. at 27-28). Once he slammed her head against an object (l.J. at 4; Tr. at 28). After the minor respondent was born, the father would sometimes slap the child for no reason (I.J. at 3; Tr. at 24-25). The father tried to sexually assault the lead respondent at least once when he was drunk and she was sleeping (l.J. at 4; Tr. at 25-26, 28). The lead respondent escaped from her father with her child and remained outside until he fell asleep (l.J. at 4; Tr. at 25-26).

We disagree that the requirement of social distinction has not been satisfied here. Although the Immigration Judge accurately characterized child abuse as a problem throughout Guatemalan society, that does not mean that a sub-set of children that have been abused by their parents and are unable to leave their homes within that society would not be an adequately limited group with discrete boundaries. In addition, although the Immigration Judge found that there was inadequate evidence of social distinction for such a group in Guatemalan society, he made extensive findings of fact from the United States Department of State, Guatemala Country Reports on Human Rights Practices-2015, indicating that the proffered particular social group does have social recognition (I.J. at 8; Exh. 4). For instance, he noted that, in recognizing societal problems in Guatemala with child abuse, the government has developed three shelters for minor victims, developed separate shelters for victims of human trafficking and sexual violence, and has pursued prosecutions against 11 perpetrators of child abuse through September of 2015 (I.J. at 6-8; Exh. 4). Accordingly, we conclude that the lead respondent has proffered a cognizable particular social group.

IJ Decision: 

“The respondent has not met her burden of showing that she is eligible for relief. Respondent has testified largely about incidents of child abuse and sexual exploitation by her father. It is not quite clear how severe some of these instances are, as the respondent said that she has not suffered any marks as a result of the incidents that she has experienced. The Court understands the respondent’s testimony as showing that her father engaged in excessive beatings of the respondent. However, the Court does not have enough evidence in this case to find that the respondent suffered past persecution within the meaning of the Immigration and Nationality Act. The Court accepts the respondent’s testimony that her father tried to rape her on at least one occasion and perhaps many others. The respondent said that she was able to escape each time. The respondent simply has not shown that she suffered harm that rises to the level of persecution.”

BIA decision:  Pages 393-402

“The record reflects that when the respondent was years old her mother departed for the United States and the respondent was given to a family to work as a maid. At the age of that family gave the respondent to another man, who began abusing her. He first impregnated her at the age of and by age she had four children by him. The respondent eventually fled the house after he beat her in the face with a hammer. After she fled she attempted to return to the house obtain her children, but the man had hidden them and she was unable to locate them. He then appeared at her place of employment and told her that if she continued looking for the children or called the police he would kill her.

We disagree with the Immigration Judge that the respondent did not establish she was unable to leave a domestic relationship with the perpetrator. First, the respondent lived with her abuser for over 10 years and they had four children together, so this does constitute a domestic relationship. With respect to whether she was able to “leave,” the Immigration Judge did not take into account the circumstances of her flight from the house or the man’s subsequent actions against.the respondent.

Specifically, while the man may not have physically harmed the respondent after she fled the house, he hid her children from her and issued threats against her life. Finally, when noting that the respondent did not call the police for assistance during the years of abuse, the Immigration Judge did not adequately consider that the respondent was a child when the abuse began, grew up without adult care-givers, and was entirely dependent on the abuser. In these circumstances, the respondent’s case does not tum on whether she contacted the police.”

IJ Decision: 

“However, just merely because the respondent was a victim of criminal activity is not sufficient to show that the respondent was harmed on account of a protected ground. That is where we are in this case. Whether the Court considers the incidents of rape against the respondent by Mr. or the incident where Mr. harmed the respondent such that she was struck with a hammer and otherwise being the victim of other acts of domestic violence, the fact is that the respondent has established only harm that suggested she was the victim of criminal activity. The respondent simply has not shown that she was harmed on account of a ground protected under the Act.”

The respondent’s case is markedly different from Matter of A-R-C-G-. Unquestionably, the respondent was able to leave the relationship. She remained in El Salvador for two years after leaving Mr. in 2011. By any formulation, the respondent left the relationship and remained in El Salvador. The respondent also has not shown that the government is unable or unwilling to protect her. Unlike the case of Matter of A-R-C-G-, the respondent in this case never once went to the police. The respondent could reasonably argue that she was prevented from doing so during the time that she lived with Mr. However, there is no explanation offered as to why the respondent was not able to go to the police during the two years that she lived with a friend. There seems to have been no impediment on the respondent filing a police report during the time that she had left Mr. The respondent was in El Salvador for two years. She was not seeing her children and Mr. had left. The respondent simply has is not credibly explained why she was not able to contact authorities concerning any of these incidents and for the fact that she was unable to see her children from 2011 until 2013. This fact undermines the respondent’s contention that she was unable to leave the relationship or that she was unable to obtain relief from the authorities in El Salvador.

The respondent has not shown that there is an objective basis for any fear of future persecution in El Salvador. The respondent unquestionably has a subjective belief that she will be harmed in her home country of El Salvador by her partner. However, the fact is that the respondent remained in El Salvador for two years after last seeing Mr. There is no evidence that Mr. ever made any attempt to harm the respondent in any way. The respondent also has not shown that she could not have relocated elsewhere in the country of El Salvador to avoid Mr. There is no evidence that Mr. had the ability to harm the respondent throughout the country. There is no evidence that Mr. is part of a group in El Salvador. There is also no evidence that the government of El Salvador would not have taken steps to try to protect the respondent if she had filed a police report against Mr.”

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