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(05/18/2010)
Supreme Court denies certiorari petition in Contreras-Martinez.
The court yesterday declined to review a challenge to the BIA's visibility and
particularity requirements, presented in the certiorari
petition of asylum seeker Balmoris Alexander Contreras-Martinez.
(04/28/2010) Contreras-Martinez
files reply urging grant of certiorari; Supreme Court to consider petition May
13th.
On Monday,
April 26th, counsel for Balmoris Alexander Contreras-Martinez filed this
reply to the government's brief in opposition to his petition for certiorari.
The Supreme Court has distributed the cert petition for consideration at its conference
on May 13th.
(04/19/2010) First
Circuit upholds Matter of S-E-G- as reasonable extension of Acosta.
On April 15, 2010, the First Circuit published this
opinion in Mendez-Barrera v Holder, affirming the BIA's social visibility
and particularity requirements and rejecting the particular social group "young
[El Salvadoran] women recruited by gang members who resist such recruitment."
The court dismissed Mendez-Barrera's argument that Matter of S-E-G- is
an unreasoned abandonment of Acosta's immutable characteristics test, saying
S-E-G- merely "represents an elaboration of how that requirement operates."
Notably, the opinion does not cite or discuss the 7th circuit's contrary decisions
Gatimi and Ramos.
(04/19/2010) Solicitor
General files brief in opposition to certiorari in Contreras-Martinez.
On April 14th
the Solicitor General filed this brief
in opposition to the certiorari petition filed in January by Balmoris Alexander
Contreras-Martinez, who challenges the BIA's social visibility and particularity
tests. Contreras-Martinez has 14 days to reply and the Court will soon distribute
his petition for consideration at one of its upcoming private conferences.
(03/30/2010)
ILCM joins Harvard and other organizations on amicus brief to BIA in remand of
Gatimi.
ILCM has joined
this amicus brief filed
with the Board of Immigration Appeals, in connection with the Seventh Circuit's
remand in Gatimi v. Holder.
The brief urges the Board to clarify and reaffirm Acosta's long-standing immutable
characteristics test and reject the social visibility and particularity inquires
it has imposed in recent precedents, including Matter of S-E-G-.
(03/15/2010) Fifth
Circuit remands Orellana-Monson to BIA without addressing S-E-G-.
Following rehearing arguments on March 1st, today, the Fifth Circuit issued this
anticlimactic opinion remanding Orellana-Monson v. Holder to the BIA.
The court did not address the validity of S-E-G-'s social visibility or
particularity requirements, but instead found that it could not adequately discern
whether the Board had ruled (1) that the Orellanas have not established a protected
ground-that they are members of particular social groups; (2) that even if the
Orellanas' alleged social groups are cognizable under the INA, there is not sufficient
evidence that they fear persecution because of their membership in those social
groups; or (3) both.
(03/15/2010) Attorney General apparently denies long-pending request for certification
of Matter of S-E-G-.
On March 2, 2010, the EOIR General Counsel's office sent this
letter to Harvard Law School's Immigration and Refugee Clinical Program, informing
them that Attorney General Holder has declined the request to certify Matter of
S-E-G- that the sibling respondents in that case submitted in February of 2009.
Harvard was among various amici who had filed letters and briefs in support
of certification. To date, the government has delivered no notification regarding
certification to counsel for the S-E-G- respondents.
(03/09/2010) Sixth Circuit rules former gang members a valid particular social
group.
On March 5, 2010, the Sixth Circuit issued this
opinion in Urbina-Mejia v. Holder, No. 09-3567, holding that a former
MS-13 gang member is part of a valid social group by virtue of a shared past experience
that he cannot change. The Sixth Circuit panel cited the Seventh Circuit's Gatimi
and Ramos
decisions, and rejected the logic of Matter of E-A-G-, which the BIA had
applied below. Unfortunately for Urbina-Mejia, the court also held that substantial
evidence supported the Boards' finding he committed serious non-political crimes
as a gang member by hitting a man in the back with a baseball bat and extorting
people for money on the street, this despite the fact he was a juvenile at the
time of the conduct.
(03/03/2010) Fifth
Circuit panel rehears Orellana-Monson. On March 1, 2010, the Fifth Circuit
heard oral
argument in Orellana-Monson v. Holder, No. 08-60394. This is was a
panel rehearing of the Court's earlier, unpublished
decision, which cited S-E-G-, and was prompted by the Seventh Circuit's more
recent decision in Gatimi rejecting the Board's social visibility test.
(02/25/2010) Fifth
Circuit: government abandons key arguments on eve of Orellana-Monson rehearing.
Just days in advance of oral argument in the panel rehearing of Orellana-Monson,
the government has filed this
letter informing the court that it will no longer seek to defend the underlying
BIA decision as consistent with the social visibility and particularity criteria
of Matter of S-E-G-. The government's last minute decision to recede from
its
earlier litigation position drew this
sharp rebuke from petitioner's counsel. The about face appears calculated
to obtain remand and thereby avoid the possibility of a decision from the Fifth
Circuit siding with the Seventh Circuit's recent opinions Gatimi
and Ramos. Such
a decision in the Fifth would create a more meaningful circuit split with respect
to S-E-G-, a scenario the government may want to avoid as it prepares a
response to the pending certiorari petition in Contreras-Martinez
v. Holder,
No. 09-830.
(02/20/2010) AG declines request for certification filed by cert petitioner
Contreras-Martinez.
On February 17, 2010, the Justice Department sent this
letter to counsel for Balmoris Alexander Contreras-Martinez, the Salvadoran
whose gang-based asylum claim is the subject of this
petition for certiorari now pending at the U.S. Supreme Court. The letter
states that Attorney General Holder has declined Contreras-Martinez's separate
request for certification of the unpublished BIA decision denying him asylum.
The AG still has issued no decision on the pending
request for certification filed by the S-E-G- respondents one year
ago.
(02/19/2010) Association of the Bar of the City of New York asks Attorney General
to certify Matter of S-E-G-. On February 2, 2010, the Association of
the Bar of the City of New York submitted this
letter-brief urging Attorney General Holder to grant the pending request for
certification of Matter of S-E-G-.
(02/10/2010) Third Circuit: lively oral arguments in Valdiviezo-Galdamez
II. On February 3, 2010, the Third Circuit heard one hour of oral argument
in two gang-recruitment cases, Valdiviezo-Galdamez
v. Holder, No.08-4564, and Mejia
Fuentes v. Holder, No. 08-2783. Comments by the panel judges suggest they
may be inclined to reject Matter of S-E-G- and the Board's new social visibility
and particularity requirements. This is Valdiviezo-Galdamez's second petition
for review. Three years ago the Third Circuit remanded his asylum claim to the
Board in Valdiviezo-Galdamez
v. U.S. Atty. Gen., 502 F.3d 285 (3d Cir. 2007), a case noted by the BIA
in Matter of S-E-G-, 24 I. & N. Dec. at 582.
(01/27/2010) Immigrant
rights organizations and law professors submit letters to Attorney General Holder
requesting certification of Matter of S-E-G-. Today a group of immigrant
rights organizations filed this
letter with Attorney General Holder asking him to certify Matter of S-E-G-.
Separately, a coalition of law
professors filed this letter requesting the same. ILCM's principal request
for certification, filed on behalf of the S-E-G- respondents in March of
2009, remains pending with the Attorney General.
(01/15/2010) Petition for certiorari filed with Supreme Court challenging "social
visibility" and "particularity" requirements of Matter of S-E-G-.
On January 11, 2010, Williams & Connolly filed this
cert petition with the U.S. Supreme Court seeking review of the Board's "social
visibility" and "particularity" tests. Contreras-Martinez,
No. 09-830. The petitioner here, like the asylum-seekers in Matter of S-E-G-,
is a Salvadoran youth who claims persecution for refusing recruitment into the
MS-13 gang.
(12/20/2010) Seventh circuit decides Ramos v. Holder. Court again
rejects "social visibility" requirement and recognizes former gang members
as a particular social group. On December 15, 2009, the Seventh Circuit, in this
opinion by Judge Posner, again attacked the BIA's "social visibility"
test. The decision is effectively a rejection of the Board's reasoning in Matter
of E-A-G-.
(12/16/09) Watch
our Matter of S-E-G- web CLE program. On October 28, 2009, ILCM and Latham
& Watkins hosted a one-hour web CLE covering our ongoing efforts to overturn
S-E-G-, discussing federal court opinions in the wake of the BIA's decision,
and recommending strategies for representing asylum seekers impacted by S-E-G-.
You can
watch the program here.
(12/16/09) Fifth Circuit requests supplemental briefs addressing validity of
S-E-G-'s "social visibility" test in gang recruitment case following
petition for rehearing en banc. On October 15, 2009, in response to
a petition for rehearing en banc, the Fifth Circuit ordered the parties
in this gang-recruitment case to file supplemental arguments addressing the validity
of the BIA's "social visibility" test. Orrellana-Monson
v. Holder,
No. 08-60394 (5th Cir., June 15, 2009). The petitioner's supplemental brief
is here. The government's
response is here.
(12/16/09) Seventh Circuit hears oral argument in former gang-member case;
Posner attacks "social visibility" test again. Click
here to listen to lively oral arguments held on October 30, 2009, in Ramos
v. Holder, No. 09-1932. Arguing for petitioner, Claudia Valenzuela, National
Immigrant Justice Center.
(12/16/09) Posner, Seventh Circuit, reject BIA's "social visibility"
test as "illogical". Gatimi
v. Holder, 578 F.3d 611 (7th Cir. 2009).
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