ILNews

Judge: Look closer at claim of being part of a persecuted social group

Back to TopE-mailPrintBookmark and Share

In granting a petition for review of a denial of an asylum request, 7th Circuit Court of Appeals Judge David Hamilton believes the Board of Immigration Appeals applied too narrow of a concept of a “social group.”

Doris Martinez-Buendia fled Colombia in 2005 and applied for asylum on the ground that she was being persecuted by the Revolutionary Armed Forces of Columbia (FARC) because of her anti-FARC political position and her involvement with the social group “Health Brigades.” The group provided health care to rural communities. In demanding she give public credit to FARC for the health-care work, it threatened her in letters and phone calls. She refused. Her sister was kidnapped by FARC as well as her brother-in-law; the latter died in FARC’s custody.

When she was delivering supplies to a school, a FARC member held a gun to Martinez-Buendia’s head and threatened that if she didn’t give FARC credit for the Health Brigades, they would do far worse to her than they did to her sister, who escaped captivity.

An immigration judge denied her application, which the BIA affirmed on the ground that Martinez-Buendia hadn’t established the past persecution she suffered was on account of her political opinion or membership in a particular social group.

The 7th Circuit reversed that decision in Doris Martinez-Buendia v. Eric H. Holder Jr., No. 09-3792, finding ample evidence Martinez-Buendia suffered the persecution because of her political beliefs. She refused to align with FARC because of her political views that FARC harmed a lot of Colombia and threatened democracy. There’s also evidence FARC viewed members of the Health Brigades as political opponents.

Because the judges found she was persecuted based on political beliefs, the majority didn’t address the idea she was persecuted on account of her membership in a social group. But Judge Hamilton addressed the idea in his six-page concurring opinion.

“I write separately to note that I believe the Board of Immigration Appeals also applied too narrow a concept of a ‘social group’ when evaluating petitioner’s leadership in the brigadas de salud (Health Brigades) in Colombia,” he wrote. “If we were not ordering the Board to grant refugee status to petitioner based on political persecution, I would order a remand to the Board for further development and consideration of the social group issue.”

The BIA erred in not recognizing that the statutory definition can reach a social group defined by its activities, at least where the persecution is based on those activities. He also wrote the BIA failed to consider the extent to which Martinez-Buendia was acting as a matter of conscience when she acted so as “to draw the attention and wrath of the FARC.”

“In sum, the facts and law relevant to petitioner’s claim for refugee status as a member of a persecuted social group deserved closer consideration. Future petitioners may offer evidence that they joined groups like the Health Brigades as a matter of conscience and that they have been persecuted, or that they face future persecution, on account of their membership in and work on behalf of the Health Brigades,” he wrote. “They should not be denied asylum simply because that membership may appear more fluid than membership in a racial, ethnic, or religious group, or because their involvement is the result of secular ethical values instead of religious faith.”
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

ADVERTISEMENT