Faye v Holder, No. 09-1229 (1st Cir. Sept. 2, 2009)
Marguette Faye is a Senegalese woman who overstayed a six-month tourist visa grantedin 2000. A Notice to Appear was issued on July 10, 2003, and an Immigration Judge found her removable. In January 2005, Faye filed for asylum, one year after her deadline for filing, claiming membership of a persecuted social group: “women who had a child out of wedlock/are considered adulterers because they gave birth to a child allegedly not their husband’s/have been abused by their husbands.”
Though Faye offered a psychological report to explain her delay in filing for asylum, the Immigration Judge found that her mental illness did not amount to extraordinary circumstances excusing the delay. In rejecting Faye’s withholding of removal, the Judge found Faye to be a credible witness, but found no “persuasive evidence” that Faye would face persecution if returned to Senegal. Faye’s Convention Against Torture claim was also denied, with the Judge finding there was no evidence she would be tortured if returned.
The Board of Immigration Appeals reversed the Immigration Judge’s ruling that the asylum claim was barred, but also found the error to be harmless, as Faye did not prove persecution based on membership of a protected group. The BIA affirmed the remainder of the Immigration Judge’s decision. Faye petitioned to review and the 1st Circuit remanded the case to further consider whether petitioner was a member of a protected social group. The BIA issued a new opinion, holding that the proposed group was too “amorphous” and the proposed protected group’s boundaries were too ill-defined to determine the group’s membership.
On appeal, the 1st Circuit deferred to the BIA’s definition of a “social group” for the purposes of asylum claims: groups “must share a common, immutable characteristic, wither innate or based on past experiences.” Whether this characteristic exists depends on two elements: if the group is socially visible and if it is sufficiently particular. The Court determined that substantial evidence supported the conclusion of the BIA, that Faye had failed to present sufficient evidence to prove either element. In particular, it pointed out that Faye only testified regarding how her family, not Senegalese society, would view her, and did not present evidence on how similarly situated women are viewed. The Court similarly rejected Faye’s claim of asylum based on religious beliefs, holding that Faye failed to present evidence showing persecution based her beliefs.