Recent Ninth Circuit en banc Decision on Social Groups Cited My Research

The Ninth Circuit Court of Appeals certified the case of an El Salvadorian national who filed a claim for asylum relief based upon her fear of persecution on account of her testifying against gang-members who killed her father. Under asylum law, her claim fell within the nebulous group of membership in a particular social group. The case was rehear en banc with the intention of clarifying how such a claim of membership would be adjudicated, especially since any formulation of a particular social group fearing gang violence, retaliation, of coercion into a gang has been held not to constitute a social group. (See Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008).)[The presented social group of “a young man in El Salvador resisting gang violence unstoppable by the police,” did not have sufficient social visibility and particularity.]

In this case, the asylum seeker fled El Salvador after witnessing the murder of her father at the hands of M-18 street gang. She identified the two men who murdered her father and then testified in open court against them. At the conclusion of her Individual Hearing before the Immigration Judge, the IJ held that she had suffered past persecution and she did have a reasonable fear of future persecution if returned to her native country and that she was a member of a particular social group, "people testifying against or otherwise opposing gang members."

The government appealed the IJ's Oral Decision and the Board of Immigration Appeals reversed the IJ's decision. Henriquez-Rivas en banc review, which was granted.

In the decision, the Ninth Circuit rendered a very narrow opinion that held the BIA misapplied its own precedent in Matter of C-A-, 23 I&N Dec. 951 (BIA 2006) in holding that witnesses who testify against gang-members may not constitute a particular social group due to a lack of social visibility.

In the dissent, Chief Justice Kozinski, joined by Justice Bybee, cited my research on what constitutes membership in a particular social group. Defining a Core Zone of Protection in Asylum Law, 10 J.L. & Soc. Challenges 22 (2008) twice on page 11 of the decision.

Here is the full decision:

Henriquez-Rivas v. Holder -

A New Immigration Fraud Ring Busted in Los Angeles - Charges Include Fraud and Bribery

The Los Angeles Time reported yesterday that Attorney Kwang Man "John" Lee was arrested for being the ring leader of an immigration fraud ring. The authorities reported that he was a man who could make things happen — for a price. For a pound of marijuana and $44,000, the Koreatown attorney allegedly said, he could get an immigrant client a U.S. citizenship. "Price is OK for the risk," Lee told an associate, according to federal authorities.

Mr. Lee was a silver-Corvette-driving attorney, also a former Immigration and Naturalization Service agent. He allegedly had associates at various stages of the immigration process willing to take bribes and provide favors for his clients. At Los Angeles International Airport, he had Customs and Border Protection officer Michael Anders, according to prosecutors. At Citizenship and Immigration Services, they alleged, he had officers Jesus Figueroa and Paul Lovingood. At Immigration and Customs Enforcement, he had special agent James Dominguez, according to court documents.

And he apparently had a long list of clients from across the globe, from Japan to Morocco to the Czech Republic, willing to pay the tens of thousands to cut a corner or two in the process for a permanent residency or citizenship in the U.S.

On May 8th, federal prosecutors announced charges against Anders, Figueroa, Lovingood, Dominguez and a client of Lee's, Mirei Gia Hofmann. The current and former immigration officials were indicted May 7th on charges including conspiracy, bribery, fraud and misuse of government seals. Hofmann faces a single count of immigration fraud.

Lee, who became an attorney in 1997, was previously charged in a separate criminal complaint of conspiring to defraud the U.S. government.

According to affidavits filed in the case, Lee plied the officials with lavish gifts and cash bribes in exchange for immigration benefits including forged admission stamps with a false date of entry into the U.S. and rubber-stamping fraudulent permanent residency or citizenship applications. Anders, who at one point lived with Lee, provided the attorney with a specialized security ink used by Border Patrol officials to stamp passports at airports, according to court papers.

In exchange, Lee bought round-trip tickets to Thailand for Dominguez and a 47-inch flat-screen TV and a computer for Lovingood, and gave thousands of dollars in cash to Figueroa, authorities allege. Anders was paid $50 each time he falsified an entry record, according to the indictment.

Lee complained to a confidential informant that he gets "headaches entertaining them, taking them out to dinner," according to an affidavit. He secured illegal immigration benefits for at least several dozen clients over the years, prosecutors said.

"It looks like this goes back at least 20 years," Assistant U.S. Atty. Meghan Blanco said. "By and large, it involves people who entered the country legally and then overstayed their visa."