Notable Case Law Updates for Pro Bono Attorneys

Seventh Circuit: Definition of Changed Circimstances

Tuesday, 01 September 2009 15:20

Marc Kadish of Mayer Brown LLP and Steven Moeller, formerly of Mayer Brown LLP, successfully argued a petition for review before the U.S. Court of Appeals for the Seventh Circuit on behalf of a Pakistani asylum seeker.  Roome Joseph had filed a motion to reopen her removal proceedings so that she could apply for asylum based on a threat of forced marriage from her parents in Pakistan.  The Board of Immigration Appeals denied her motion, but the Seventh Circuit granted her petition for review and remanded her case back to the Board because it had failed to consider whether the threat of forced marriage in Pakistan constituted a changed circumstance.  On remand, the Board again denied the motion in a single member decision.  The Board's decision rested in part on its interpretation of the “changed circumstances” regulation as only including “a dramatic change in the political, religious, or social situation” and excluding “personal circumstances.”  The Seventh Circuit held that the Board committed legal error with its interpretation of the regulation as nowhere in the plain language of the regulation does it indicate that the changed circumstances must be “dramatic” or relate to some “broad social or political change in the country.”  The Seventh Circuit thus remanded the case back to the Board for a second time to consider whether the forced marriage Joseph may face in Pakistan constitutes a changed circumstance.  Joseph v. Holder, 2009 WL 2616257 (7th Cir. 2009)
 

Social Visibility Decision_2009_08

Thursday, 27 August 2009 20:02

Significant Seventh Circuit Decision Regarding the Definition of "Particular Social Group"

On August 20, 2009 the U.S. Court of Appeals for the Seventh Circuit issued a precedential decision in which it criticized the “social visibility” analysis used by the Board of Immigration Appeals to determine whether a group constitutes a “particular social group” for asylum purposes.  Mr. Gatimi was a man from Kenya who feared persecution from the Mungiki sect because he had defected from the group.  The immigration judge denied Gatimi asylum and the Board affirmed, holding that the particular social group of former Mungiki was not cognizable under the INA because it was not socially visible.  The Seventh Circuit found that the Board’s social visibility analysis could not be squared with Seventh Circuit precedent regarding the particular social group definition, and moreover, that the Board’s analysis “makes no sense; nor has the Board attempted, in this or any other case, to explain the reasoning behind the criterion of social visibility.”  The Court determined that remand under Gonzales v. Thomas, 547 U.S. 183 (1996), was inappropriate because the Board had been inconsistent, rather than silent, regarding social visibility as a criterion for particular social group.  Although the Seventh Circuit stated that it had no quarrel with the rejection of the social groups in several gang-based asylum cases by other Circuit Courts, it noted that those groups would have failed the original social group test from Matter of Acosta.

Although the Gatimi decision contains language regarding gang-based asylum cases that could potentially harm those claims, the Court’s criticism of the Board’s social visibility analysis should provide beneficial language for many of NIJC’s asylum cases.  To read a more thorough analysis of the decision, please see NIJC's Litigation Updates.

Gatimi v. Holder, 2009 WL 2568952 (7th Cir. 2009).