Matter of Rodi Adalí Alvarado-Peña
|Publisher||United States Board of Immigration Appeals|
|Publication Date||20 September 1996|
|Cite as||Matter of Rodi Adalí Alvarado-Peña, United States Board of Immigration Appeals, 20 September 1996, available at: http://www.refworld.org/docid/3f8fb4774.html [accessed 24 May 2013]|
|Comments||Decision overturned by Matter of R-A-, Int. Dec. 3403 (BIA 1999), vacated (A.G. 2001).|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
On Behalf of the Respondent:
Jane B. Kroesche, Esq.
FourEmbarcadero Center, Suite 3800
San Francisco, CA 94111
On Behalf of the Service:
Amy T. Lee, Esq.
Assistant District Counsel
P.O. Box 26499
San Francisco, CA 94126-6449
Decision of the Immigration Judge
I. Procedural History
The following facts are taken from respondent's written application for asylum and withholding of deportation, the Declaration in Support (Exhibits 2 and 2a) and her oral testimony given at the regular hearing held on
The Respondent, Rodi AdalíAlvarado-Peña ("Alvarado"), was born and raised in the town of Jutiapa, Pasacoprovince, Guatemala, on
Alvarado testified that until shortly before she fled Guatemala, Osorio was a soldier in the Guatemalan army. He had been with the military long before they met. After he left the military, Osorio joined a private security force. Alvarado stated that from early on, Osorio bragged of the power and authority of the military in Guatemala, including its power to kill people at will and to carry weapons, including guns and knives, at all times. Osorio would tell her of the tremendous force of the military, and he would brag about his brutal exploits and his ability as a soldier to get anything he wanted solely based on his status of being in the military. Osorio described in detail how he and others in the army killed innocent civilians when they went throughout the country on patrol. Their exploits included throwing infants in the air and shooting them down, and rolling elderly people in mats, dousing them with gasoline in a trench and setting them on fire. The soldiers not only were not prevented by the army from doing these things to civilians, they were taught to do so.
Alvarado testified that in her own mind, Osorio told her of these incidents because he wanted to make her fearful of him and to ensure that she will submit to his power. Osorio told Alvarado that "I am going to treat you the way they do in the military. What they demand of me, I demand of you." Because of her husband's accounts of his military operations and his threats, Alvarado was terrified of her husband from the beginning of their marriage.
According to Alvarado's testimony, Osorio exerted complete and brutal control over her throughout their marriage. He beat her often, and at many occasions, inflicting severe injury. He dislocated her jaw, nearly pushed out her eye, tried to cut off her hands with his machete, kicked her in the abdomen and vagina, and tried to force her to abort when she was pregnant with her second child by severely kicking her in the spine. He would drag her by her hair, use her head to break windows and mirrors, whip her with pistols and electrical cords, and threaten her with knives. She stated that a number of the beatings occurred in public; however, no one, including the police and other authorities, assisted Alvarado or interfered. Alvarado testified that that was because domestic violence is viewed in Guatemala as a family matter in which the government does not get involved. Due to shame and her cultural upbringing that a wife must submit to her husband, Alvarado sought medical or other assistance only when absolutely necessary, such as when she feared broken bones or damage to her internal organs. See Exhibits IA, 2F, 3B, and 3E.
Alvarado testified that she was severely sexually abused by her husband, both vaginally and anally, almost on a daily basis. The children usually were at home when the rapes occurred; Osorio would simply put them outside at the time of the rapes. When Alvarado protested the rapes, her husband would respond by saying, "I can do it any time I want. You're my woman and I can do whatever I want." He also threatened her when she objected, saying, "Just do it, or I'll finish you off." The sexual abuse severely injured Alvarado, causing extensive hemorrhaging, excruciating abdominal pain and disease. See Exhibits 1A, 2F, 3B, and 3E.
Alvarado testified that Guatemalan practice will not allow a woman to obtain a divorce without her husband's permission. And because Osorio would not consent Alvarado could not divorce him. She tried several times to leave him and return to her family, but, each time he came for her, and her family could not let her stay, because in the Guatemalan culture a woman's place is with her husband. There are no shelters in Guatemala for women who are beaten by their husbands. See Exhibits 2P and 2X.
Alvarado stated that she tried to leave her husband by going into hiding, taking her daughter out of school and moving with her children into a room alone, in a secret location. Somehow, Osorio found her, showing up one night unannounced. When he found her, he beat her senseless, in full view of her children. After that incident, Alvarado did not believe there was anywhere she could go where her husband would not find her. She was convinced that if she left him, he would find her. He told her, "If you ever try to leave, I will come find you. I will break your legs. I will cripple you so that you will be in a wheelchair for the rest of your life. I will mark your face so it will be scarred forever. It will be twisted and deformed." Alvarado stated that she believed the reason for his threatening to cripple her was that he wanted to control her and continue to torture her; while if he simply kill her, he would not be able to torment her any further. Nevertheless, at other times, he also told her that if she left him, he would find her and kill her. In sum, he always promised to find her.
Because of Osorio's connections in the military and the security forces, and his knowledge of the country, Alvarado believed that her only chance of escaping him was to flee or to die. Osorio saw her continued protests and attempts to leave him as an affront to his authority over her. And, as he promised, each time she protested or tried to leave or get help, the beatings worsened.
Alvarado tried to get help from the police and the courts of Guatemala. Usually, the police either did not respond at all to Alvarado's requests for help or take a statement but told her that they would not get involved. See Exhibit 1B. Her husband simply ignored the few citations he did receive; the police never questioned or arrested him.
At the time that Alvarado went into hiding, she also went before a court of law to seek redress against her husband's violence against her. She testified that she even asked for protection from the Court and that her husband be held accountable for the beatings and other abuse. She also asked the Court to grant her a divorce. However, when she appeared in court, the judge told her he could not grant her a divorce because her husband had not consented. The judge was inattentive to her other requests and never issued a ruling in the case or even ordered Osorio to appear.
Because Osorio's connections to the military, Alvarado believed that the police and the courts would not punish him. She also believed that they would support him against her. Osorio confirmed this by telling her that he had contacts throughout the military, police and private security forces, and that, if she went to the police,- they would join with him and it would be worse for her then. Her experience in seeking their assistance bore her beliefs and his assurances out.
In May 1995, after a particularly brutal incident in which Osorio chased her out of their house and dragged her out of a truck in which she was hiding by her hair, Alvarado fled her home and her husband. Her children were vacationing with their grandparents, so, after her husband left her at work, she gathered a few clothes and left, with no money and no idea where she would go. She came upon some people who offered her passage and paid her way out of Guatemala that night. She arrived in Brownsville, Texas two days later, where she was questioned by the Service and allowed to proceed to San Francisco, California.
SaritaGroisser also testified for Alvarado. Ms. Groisser had helped Alvarado and her Counsel with Alvarado's asylum application and declaration. She testified that, in the course of her efforts to obtain Alvarado's medical records from Guatemala, she was informed of death threats by Osorio against Alvarado if she returned to any part of Guatemala.
III. Country Conditions
By letter received by this Court on April 22, 1996, the United States Department of State, Bureau of Democracy, Human Rights and Labor ("Department of State"), issued its advisory opinion on the Respondent's request for asylum, which concurred that the alleged mistreatment of the Respondent could have occurred in Guatemala based on the country conditions there, that complaints of spousal abuse by husbands have increased in the past year, and that there are measures to provide assistance to abused women. The Department of State noted that a determination should be made as to whether the abuse relates to the normal personal security of the Respondent or actually represents persecution on account of, among other things, her membership in a particular social group or political opinion. The Department of State also queried whether internal relocation within Guatemala was not a viable option. The response concluded by stating that the Department has no independent information regarding the Respondent. See Exhibit 2G.
The respondent submitted extensive documentation in regarding the situation of battered spouses in Guatemala. See Exhibits 2H through 2Z, and Exhibits 2-1 through 2-8. Specifically, one source reports that
Battering of Guatemalan women by their husbands and other male relations is a little-talked-about but serious social problem. The Guatemalan National Office on Women reported that of every ten women murdered in Guatemala, four are killed by their husbands. There are no government services for battered women in Guatemala.
See Exhibit 2P.
The United States Department of State also reports that
violenceagainst women, including domestic violence, remains common among all social classes... [C]omplaintsof spousal abuse committed by husbands have risen from 30 to 120 complaints per month due to nationwide educational programs, which have encouraged women to seek assistance... [J]udges may issue an injunction against an abusive spouse or companion, which the police are charged with enforcing.
Country Reports on Human Rights Practices for 1995, U.S. Dept. of State, April 1996, p. 430.
Expert witness, Dr. Doris Bersing, testified that the Respondent's description of her experiences comports with the human rights abuses of women, and particularly battered women, in Guatemala, and she opined that the Respondent would be in danger if she returned. See Exhibit 4 for Dr. Bersing's resume.
IV. Legal Analysis
The burden is on the Service to establish deportability by clear convincing and unequivocal evidence. Woodbyv. INS, 385 U.S. 276 (1966). This standard is met here because of the Respondent's admissions of the truth to all of the allegations in the Orders to Show Cause issued to her. Therefore, this Court finds the deportability of the Respondent has been established as charged.
B. Eligibility for Asylum & Withholding of Deportation
1. Prima Facie Eligibility Standards
An asylum applicant can establish prima facie eligibility for asylum by presenting affidavits or other evidentiary material, which, if true, would satisfy the requirements for substantive relief. Reyes v. INS, 673 F.2d 1087, 1089-90 (9th Cir. 1982). Pursuant to sections 101(a)(42) and 208 of the Act, this Court may grant asylum as a matter of discretion if the applicant demonstrates either past persecution or a "well-founded" fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
Withholding of Deportation
This Court is required under section 243(h) of the Act to withhold deportation if the applicant's life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. Section 243(h) of the Act is a mandatory provision which entitles the applicant to withholding of deportation upon proof of a clear probability of persecution. Diaz-Escobar v. INS, 782 F.2d 1488 (9th Cir. 1986). To satisfy the clear probability standard, the applicant must show that the feared persecution is more likely than not to occur. INS v. Stevic, 467 U.S. 407 (1984).
2. Past Persecution
A well-founded fear of persecution may be presumed if the applicant establishes past persecution unless a preponderance of the evidence establishes that conditions have changed to the extent, since the past persecution occurred, that such a fear no longer exists. Desir v. Ilchert, 840 F.2d 723 (9th Cir. 1988); Matter of Chen, Int. Dec. 3104, 4 (BIA 1989); 8 CFR § 208.13(b)(1)(I).
Alternatively, once past persecution has been demonstrated, the favorable exercise of discretion may be warranted for humanitarian reasons in some cases even if there is little likelihood of future persecution. Chen, Int. Dec. 3104 at 5; 8 CFR § 208.13(b)(1)(I).
Persecution has been defined as a threat to life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive. Matter of Acosta, 19 _I&N Dec. 211, 222-23 (BIA 1985); see also Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969). Persecution can be inflicted by a government or one of its agencies or by groups outside the control of the established government that have the will and the means to carry out the persecution. McMullen v. INS, 658 F.2d 1312, 1315 n.2 (9th Cir. 1981).
Any serious human rights violation, including that which is not life-threatening, constitutes persecution. Desir v. Ilchert, 840 F.2d at 729. Physical harm, such as beatings and rape has been found to be persecution. In re D-V-, Int. Dec. 3252 (BIA 1993) (applicant was gang-raped); Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987) (applicant was beaten, raped, degraded and tormented). Imposition of economic hardship can fall within the ambit of persecution. Kovacv. INS, 407 F.2d at 107. Finally, serious deprivation of liberty has been found to be persecution. Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir. 1988).
Alvarado has experienced past persecution in the hands of her husband. Osorio abused her physically, emotionally and sexually. He raped her repeatedly, attempted to forcefully abort their second child by kicking her in the spine. He dislocated her jaw, tried to cut her hands off with a machete, kicked her in the abdomen and vagina and nearly pushed out her eye. Under the most narrow interpretations of the above definitions, these acts of harm rise to the level of persecution. Moreover, the Service itself has determined that violence and otherwise oppressive acts against women can constitute human rights violations warranting asylum. See INS Basic Law Manual, Asylum Branch, Office of the General Counsel, U.S. Dept. of Justice, at 20-21 (March 1991); Exhibit 2H (INS Asylum Gender Guidelines and Consideration Memorandum (May 26, 1996) (stating that domestic violence may serve as evidence of past persecution)).
It is also clear from the record that the government of Guatemala is unwilling to control Osorio because domestic abuse in Guatemala is considered a family matter in which outside intervention is inappropriate. Documentation submitted by the Respondent confirms that there are institutional biases against women that prevent female victims 'of domestic violence from receiving protection from their male companions or spouses. See Exhibits 2P-2Z-and 2.1-2.8. These biases appear to stem from a pervasive belief, common in patriarchal societies, that a man should be able to control a wife or female companion by any means he sees fit: including rape, torture, and beatings.
In the instant case, when Osorio beat Alvarado in public, no one interfered. This supports testimony and documentation from the Respondent that there is, in fact, a pervasive belief that domestic abuse is a family matter in which others are not to intervene. And when Alvarado sought protection from the judicial system, her pleas fell on deaf ears. According to her testimony and written declaration, she was not granted a divorce because her husband's consent was needed. And her husband was never prosecuted for the abuse he inflicted.
Based on this evidence it is very clear to this Court that the Guatemalan government is unwilling to protect the Respondent from her husband. And there is no question, as explained above, that the harm Alvarado has endured rises to the level of persecution. Finally, there is nothing in the evidence that suggests that conditions in Guatemala have changed to such an extent since this harm occurred as to obviate the Respondent's need for protection. Thus, a well-founded fear of persecution will be presumed if she establishes past persecution. Desir, 840 F.2d at 723; 8 CFR § 208.13(b)(1)(I). And in order for her to establish past persecution, she must show that the persecution was motivated by race, religion, nationality, membership in a particular social group or political opinion. INA § 101(a)(42), 208; INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992); In re S-P-, Int. Dec. 3287 (1996). It is to this question that this Court now turns.
3. Motivation for Persecution
An asylum applicant must present some evidence, direct or circumstantial, that the persecution was done on account of race, religion, nationality, membership in a particular social group, or political opinion. Elias-Zacarias, 502 U.S. at 483; In re S-P-, supra.The categories under which one is eligible for asylum are not mutually exclusive. To this end, the courts have recognized that one asylum applicant may claim persecution upon more than one ground; however, only one ground is needed to establish eligibility. HarpinderSingh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995). The Respondent claims persecution on account of her membership in a particular social group and political opinion.
In a case before the Board of Immigration Appeals ("Board"), an applicant was denied withholding of deportation because the spousal abuse she alleged was considered a personal matter. Matter of Pierre, 15 I&N Dec. 461 (BIA 1975). However, it does not appear the respondent claimed persecution on any ground at all, the Board states that:
Under section 243(h) of the Act, the Attorney General may temporarily withhold the deportation of any alien within the United States to any country in which the alien would be subject to persecution on account of his race, religion, political opinion or membership in a particular social group. See Matter of Dunar, 14 I & N Dec. 310 (BIA 1973). The respondent does not claim that she would be persecuted by virtue of her inclusion in any of those classes. . . .
Id. at 463.
In contrast, Alvarado has claimed persecution based upon her membership in a particular social group as well as express and imputed political opinion. 'Me respondent in Pierre made no assertion that any political opinion was imputed to her or that she was a member of a social group targeted for persecution. Thus, the instant case is distinguishable.
Membership in a Particular Social Group
Judging from the Respondent's credible testimony, this Court is convinced that Osorio tormented her because he believed that the women with whom men are intimate should be dominated and controlled. In his mind, Alvarado was "his woman," and as such she was to obey and honor him without question. Because this belief is no exception in Guatemala, she is unable to divorce him without his permission. And because domestic abuse is considered a family matter in which others should not intervene, she is unable to obtain protection from him in Guatemala. See Exhibit 2P-2X.
It is not because she is a wife per se; rather, it is because she became intimately involved with this man, i.e., the notion of male domination, in which her husband and others in Guatemala believe, applies not simply to married couples but to all male-female intimate relationships. Thus, the Respondent has been persecuted based upon her membership in a social group of Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination.
The Respondent's social group may constitute a large segment of the country's population, but the size of the group should have no bearing on whether it constitutes a social group for the purposes of asylum; rather, the analysis must focus on whether the group is cognizable, cohesive, and whether its members are being singled out for persecution. See Matter of Acosta, 19 I&N Dec. 211 (BIA 1995), Sanchez-Trujillo v. INS, 801 F.2d 1571,1577 (9th Cir. 1986). This Court finds that the Respondent's social group is a cohesive, cognizable, group whose members are singled out for persecution by their former or current male companions.
Is the group cognizable and cohesive?
Persecution on account of membership in a particular social group has been defined as:
persecution that is directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic, i.e., a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.
Aside from nationality, the members of Respondent's social group share a common gender and experience as having been intimately involved with a male companion, who practices male domination through violence. A person's gender is a characteristic which could possibly be changed or altered surgically but it is so fundamental to a person's identity that such a change ought not be required. She also cannot change her prior association with her husband. In this way, Guatemalan women are a cognizable and cohesive group because they share an immutable characteristic, their gender, and they have all been involved with men who,share a pervasive belief that women should be dominated by their male companions.
In a concurring opinion in In re Kasinga, Int. Dec. 3278 (BIA 1996), one Board Member notes that "[t]he social group category... has been recognized as having deliberately been included as a 'catch all' for individuals not falling into the first four specifically enumerated categories...." [citationsomitted] Kasinga, supra, Rosenberg concurrence, at 3. The concurring opinion also cites the United Nations High Commissioner for Refugees as explicitly encouraging the use of the "particular social group" category to extend protections to female asylum seekers who otherwise satisfy the refugee definition. Id. at 4-5 (citing United Nations High Commissioner for Refugees, Memorandum: Female Genital Mutilation (Geneva, UNHCR, Division of International Protection, May 1994)).
Although the members of the Respondent's social group may share a common immutable or unchangeable characteristics, there are, of course, many ways in which a group that broad is not homogeneous. Therefore, it is the opinion of this Court that something more is needed before the group defined by "all Guatemalan women, who have been involved intimately with male companions who believe in male domination" though clearly a cognizable group, is appropriately relied upon as a basis for asylum.
In the instant case, the Respondent has shown that she, and others like her, are targeted for persecution specifically because they are women who have been involved intimately with their male companions, who believe in male domination. For the reasons given below, this Court finds that the motivation of the persecutor in targeting that specific shared characteristic provides sufficient additional definition to the group, such that a group as broad as to be defined by gender and past associations is cognizable for purposes of asylum eligibility.
Is the group targeted?(2)
Just as with the other categories, after identifying the proper category, the focus shifts to the motives of the persecutor. Elias-Zacarias, 502 U.S. at 483. In other words, whether the asylum applicant is being targeted on account of her membership in the particular social group.
The Court of Appeals for the Ninth Circuit ("Ninth Circuit") has denied a claim based on membership in a particular social group of "young, working class, urban males who have failed to serve in the military or actively support the government." Sanchez-Trujillo v. INS, 801 F.2d at 1577. The court reasoned that the group could not be said to have been specifically targeted by anyone for persecution because of the qualities that group possessed. Id. Rather, "[t]he principal victims of persecution [by the Salvadoran government] were people who belonged to opposition parties, union leaders. and young students of activist teachers." Id.
Unlike the group designated in Sanchez-Trujillo, Guatemalan women who become involved intimately with Guatemalan men who believe in male domination aretargeted by their male companions (former or current), when these men attempt to control them through violence. The Respondent has established that there is a basic patriarchal notion which prevails in Guatemala that a man should be able to control the women, whom they are or have been involved with intimately, through violence if necessary and that those men are not prosecuted. In practice, women become subservient to their male companions. In furtherance of this principle and the belief that domestic abuse is a family matter in which others must not intervene, women are not protected when they complain of domestic violence. Thus, such persecution is "on account of" their being or having been a female companion of a man who believes in male domination and the desire of the male companion, for whatever reason, to keep women subservient to him.
If the Respondent returns to Guatemala at this time, she would likely be stalked and beaten again by her husband. She, like all Guatemalan women who have been involved with an abusive man, would have no government protection against the man.
The Board recently held that an asylum applicant who was unwilling to undergo female genital mutilation (FGM) had a well founded fear of persecution on account of her membership in a social group of "young women of the Tchamba-Kunsuntu Tribe who have not had FMG, as practiced by that tribe, and who oppose the practice." In Re Kasinga, Int. Dec. 3278 (BIA 1996). The Board recognized FGM as a form of sexual oppression to assure male dominance and exploitation. Id. In similar ways, the acceptance of spousal abuse assures male dominance and exploitation by enabling men to exert control over their female companions through threats or acts of violence.
Thus, as a member of the particular social group of Guatemalan women, who are subjected to the threat of violence from their former or current male companions, who believe in male domination, the Respondent qualifies for asylum simply because she is being targeted for persecution on account of her gender and past association.
The Respondent also claims that her husband's abuse was motivated by his offense of a political opinion she either expressed to him or he imputed to her. Imputed political opinion is a valid basis upon which to establish asylum eligibility. Cañas-Segovia v. INS, 970 F.2d 599,601 (9th Cir. 1992); In re S-P-, supra.In the case of imputed political opinion, it is irrelevant whether the victim holds the political opinion imputed to her or him, so long as the persecutor believes the victim holds that belief. Arguetav. INS, 759 F.2d 1395,1397 (9th Cir. 1985). Thus, even if the Respondent has not expressed or held a political opinion, she could have one imputed to her by her persecutor which can serve as the basis for the asylum claim.
It is clear from the record that Osorio formed a definite opinion about the role of women and men in male-female relationships, i.e., that women are to be subordinate to men. It appears this notion was either acquired or reinforced by his experience in the military. See Exhibit 2.6, at 38-39. Judging from the Respondent's testimony regarding Osorio's boasting about his violent acts while in the military, Osorio came away from his military training with the opinion that women should be dominated by men and that violence is an acceptable means of control.
Alvarado's resistance to Osorio's acts of domination, constituted a challenge to his opinion that women are to be subordinate to men. The resistance can be characterized as Alvarado's expression of a political opinion against this notion of male domination. And even if it were not characterized as an expression, it can be inferred from his increased violent behavior that he imputed this opinion to her.
The Ninth Circuit in Lazo-Majano v. INS, 813 F.2d 1432, distinguished the abuse inflicted by a man ("Zuniga") against a female companion ("Olimpia") from a purely personal matter to one from which political meaning could be inferred by placing the abuse in its social context:
Zuniga is asserting the political opinion that a man has a right to dominate and he has persecuted Olimpia to force her to accept this opinion without rebellion. Zuniga told Olimpia that in his treatment of her he was seeking revenge. But Olimpiaknew of no injury she had ever done Zuniga. His statement reflects a much more generalized animosity to the opposite sex, an assertion of a political aspiration and the desire to suppress opposition to it. Olimpiawas not permitted by Zuniga to hold an opinion to the contrary. When by flight, she asserted one, she became exposed to persecution for her assertion.
Id. at 1435.
The Ninth Circuit concluded in Lazo-Majano that Olimpia had been persecuted by Zuniga on account of political opinion. Id. at 1436. Like Zuniga in Lazo-Majano, Osorio asserted a political opinion that he has a right to dominate Alvarado because he is a man and she is "his woman." By resisting his abuse and seeking help, Alvarado expressed an opinion to the contrary.
This Court finds that the Respondent is statutorily eligible for asylum in the United States under section 208(a) of the Act. There are no factors that have been brought to this Court=s attention to indicate that discretion should not be exercised in favor of the Respondent. Accordingly, her application for asylum will be granted.
Based on this decision, this Court need not address the Respondent's applications for withholding of deportation under section 243(h) of the Act or for voluntary departure under section 244(e) of the Act.
Wherefore it is ordered that the Respondent's application for asylum should be and is hereby granted.
Mimi Schooley Yam
1. In this brief, the Service asserts that this Court has "improperly delegate[d] [its] discretionary and fact-finding authority," but fails to support this assertion with any legal citation or persuasive argument. This Court's request for a proposed decision was in no way a delegation of authority. A proposed decision is just that: a proposal. This Court would never consider signing a proposed decision or proposed order without a proper examination of the facts in the record and legal arguments of both parties.
Even more disturbing were the accusations made against the Respondent by the Service in the brief regarding, inter alia, alleged factual misstatements, inaccurate citations, and unsupported legal conclusions in the Respondent's proposed decision. The Service lodges strong allegations against the Respondent without any factual support. For example, the Service states that the Respondent's proposed decision contained false quotations and inaccurate citations, but states not one example of these alleged misquotes and inaccurate citations.
2. It should be noted that this part of the social group analysis is not meant to define the group by the harm inflicted upon the group: rather it is simply that the motives of the persecutor help to define the group. See Gomez v. INS, 947 F.2d 660 (3rd Cir. 1991) (the court held that the fact that a Salvadoran woman had been beaten and raped by Salvadoran guerillas during her youth did not make her a member of a "particular social group." In that case the petitioner had focused on the harm inflicted rather than on the motives of the persecutors which led to the infliction of the harm.) Since the members of even the most cohesive and homogeneous social group have unique as well as shared characteristics. It is often the motive of the persecutor in choosing that particular group to persecute which in reality makes it a group in need of and appropriately protected by asylum.