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

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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.”
 

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  1. Oh my lordy Therapist Oniha of the winexbackspell@gmail.com I GOT Briggs BACK. Im so excited, It only took 2days for him to come home. bless divinity and bless god. i must be dreaming as i never thoughts he would be back to me after all this time. I am so much shock and just cant believe my eyes. thank you thank you thank you from the bottom of my heart,he always kiss and hug me now at all times,am so happy my heart is back to me with your help Therapist Oniha.

  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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