Ninth Circuit to Hear Salvadoran Woman’s Asylum Appeal En Banc

Judges to Decide Whether Testimony Against Gang Members Qualifies for Protection


The Ninth U.S. Circuit Court of Appeals will decide en banc whether persons who testify against gang members form a protected group for asylum purposes, the court said yesterday.

In a brief order, Chief Judge Alex Kozinski announced that a majority of the judges had agreed to en banc review in Henriquez-Rivas v. Holder, 09-71571, which the panel decided Sept. 7 in an unpublished memorandum.

Rocio Henriquez-Rivas claimed that she was in danger in her home country of El Salvador because she testified against members of the Mara Salvatrucha gang. But the Ninth Circuit panel—made up of Judge Mary M. Schroeder, who has since taken senior status; visiting Seventh Circuit Senior Judge Kenneth Ripple; and Judge Carlos Bea—said it was required by precedent to reject her argument.

Bea, however, authored a concurring opinion, joined by Ripple, saying the precedents should be reexamined.

Murder Witness

Henriquez-Rivas testified at her asylum hearing that she saw the MS murder her father when she was 12 years old, and that she testified against three gang members in a Salvadoran court, with two of them being convicted. She said she fled the country after other MS members started looking for her at her home and school.

She was detained attempting to enter the United States through Mexico. She filed an application for asylum, withholding of removal, and relief under the Convention Against Torture, alleging that she was a member of a particular social group consisting of persons who had testified against gang members in Salvadoran court.

The immigration judge ruled that the purported group was cognizable under the Immigration and Nationality Act, that Henriquez-Rivas was a member of the group, and that she had a well-founded fear of persecution, and recommended that she be granted asylum.

The Board of Immigration Appeals reversed, however, holding that the purported group lacked “social visibility” and “particularity” and thus was not cognizable under BIA precedent.

Other Cases

Bea, in his concurrence for the Ninth Circuit, acknowledged that the panel, unlike the en banc court, is bound by rulings in similar cases, such as one in which government informants against Filipino gangs were held not to be a particular social group, and one which declined to extend protected status to material witnesses who testified for the prosecution against alleged alien smugglers.

“I agree that our panel is bound by this analogous precedent, but several factors cause me to question whether this line of cases is indeed faithful to the INA and to the BIA’s interpretations of the statute,” the concurring jurist wrote.

Bea said the term “particular social group” is ambiguous and undefined in the INA; that it has not solely been defined by immutable characteristics by race or gender; and that the Ninth Circuit’s “reasoning is frequently at odds with the BIA’s published opinions on the matter.”

The court has also been inconsistent in its own approach, and in conflict with other circuits, Bea wrote.

“Given the current confusion in our law, there is no discernible basis for these divergent outcomes—other than, perhaps, a given panel’s sympathy for the characteristics of the group at issue,” the judge noted.

“Somalian women threatened with female genital mutilation are a particular social group…while government witnesses threatened with death for their testimony against violent gang members are not….Mexican men with female sexual identities are a particular social group…while teenage boys in Honduras threatened with death for resisting MS-13 recruitment are not….”

Bea declared:

“A petitioner fighting for her right to remain in this country and avoid persecution in her native land deserves a legal system governed not by the vagaries and policy preferences of a given panel, but by well-defined and consistently-applied rules.”

Copyright 2012, Metropolitan News Company

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