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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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