Wednesday, July 21, 2010

Ninth Circuit: Is Being a Guatemalan Woman Enough?

In the midst of high-profile circuit news last week, the Ninth Circuit issued an immigration decision that could be a sleeper to watch.

Asylum may be granted, as relevant to the Ninth Circuit case, where a person "is unable or unwilling to return to her country of nationality" due to "a well-founded fear of future persecution on account of her . . . membership in a particular social group."  Lesly Yajayra Perdomo, a Guatemalan citizen who has been in the United States since 1991 and is seeking asylum, argued that she has the necessary fear and membership, the latter being that she is a Guatemalan woman.  (Earlier in the litigation, Perdomo had proposed a narrower group, rejected below: Guatemalan women, ages 14-40, "'who had lived in the [United States]."')

In support, Perdomo submitted "several reports by the Guatemala Human Rights Commission, which is based in the United States, documenting the torture and killing of women, the brutality of the killings, the non-responsiveness of the Guatemalan government to such atrocities, the countrywide prevalence of the killings, and the lack of explanation for the killings."  An AP report on the Perdomo case stated that "more than 3,800 women [have been] killed since 2000—and close to 800 last year—and fewer than 2 percent of the cases are solved in the male-dominated culture."

Both the immigration judge and Board of Immigration Appeals rejected Perdomo's application, the Board indicating that an "all Guatemalan women" category is too broad.  The Ninth Circuit panel was not so sure, strongly suggesting that Perdomo could establish "a particular social group," but remanding to the Board for that determination.  In doing so, the panel cited Ninth and Eighth Circuit precedent finding Somali women "a particular social group," due to the prevalence of female genital mutilation ("FGM") there.

Despite the startling statistics from Guatemala, a finding by the Board, consistent with what the Ninth Circuit seems to be suggesting, would also be startling.  According to the CIA World Factbook (Guatemala, People subsection), Guatemala has a population of 13.5 million.  Assuming roughly half are women, this means 6.75 million people would qualify as "a particular social group" for asylum purposes.  As the Board stated, this appears to be '"a mere demographic division of the population rather than a particular social group."'

Also, the FGM cases are distinguishable, as they involved a specific, widespread procedure performed on females, while the female murders in Guatemala, though numerous and inadequately prosecuted, still touch only a small percentage of the total female population.  It remains to be seen if the government will seek en banc rehearing or if the Board will follow the Ninth Circuit's apparent drift.