MEMORANDUM

Date:    December 6, 2004
To:       Interested Parties

From:   Deborah Anker, Women’s Refugee Project 

RE:       Government Briefing in Thomas v. Ashcroft: Proposed rejection of “Family” as “Particular Social Group;”  Women’s Refugees Project Files Amicus Request

Attorneys with the Department of Justice have filed briefings in Thomas versus Ashcroft (359 F.3d 1169 (9^th Cir. 2004)) arguing that persons who fear persecution on account of their family membership are not entitled to asylum protection in the United States.  Under asylum law, a person may not be returned to face serious harm (from which her government fails to protect her), where her particularized, individualized fear is on account of one of five grounds which are immutable or protected, one of which is “membership in a particular social group.”  Family membership has long been held to be a classic example of such social group membership. 

The Thomas case, which is being reheard en banc, (that is by the whole court) is scheduled for argument on December 14, 2004.^[1]  Ms. Thomas is being represented by Errol I. Horwitz and Edward Bialack of Woodland Hills, California.  The Women Refugees Project, Harvard Immigration and Refugee Clinic has filed an amicus curiae request and proposed brief in the matter. 

The government’s argument, if accepted, would undermine years of development in asylum law, especially in the area of protection of women and families who often seek asylum under the “particular social group” category, which, as noted, is one of the core grounds for protection under U.S. and international asylum law. 

The Thomas case involves a woman whose family (which includes her young children) was subjected to brutal attacks and whose lives were threatened because of racist actions taken by her father-in-law against workers in his factory. The only question presented by the court for briefing and consideration is whether a "family" may be a "particular social group" for purposes of the asylum protection.  

The Women Refugees Project, Harvard Immigration and Refugee Clinic proposed amicus brief maintains that long-standing precedent and policy dictates that family is a fundamentally protected unit in society, including for asylum purposes.  The Department of Homeland Security, legacy Immigration and Naturalization Service (legacy INS), the highest administrative appeals body in the Justice Department, the Board of Immigration Appeals (going back to its seminal decision in Matter of Acosta, 19 I & N 211 (BIA 1985)) and every federal circuit court of appeals that has addressed the issue has maintained that "family" is a protected social group within the terms of asylum law. See, e.g., Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004) Iliev v. INS, 127 F.3d 638, 642 & n. 4 (7th Cir.1997)); Fatin v. INS, 12 F.3d 1233, 1239- 40 (3d Cir.1993) ;Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir.1993)  The Ninth Circuit itself has taken the same position noting  that family is  "the prototypical example" of a social group in society, and for asylum purposes.  Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9^th Cir. 1986).

The Board of Immigration Appeals has maintained for 20 years that one of the most fundamental social groups in society for asylum purposes is the family. It has granted asylum where the ground on which it is sought is membership in a persecuted family; last year, for example, in the case of In re Heer, (Los Angeles, Cal., BIA Apr 1, 2003, A75 734 367) (27 Immig. Rptr. B1-112 APR 1 2003),^[2] the Board held that the woman applicant, subjected to sexual and other violence owing to her father's suspected political affiliations, was entitled to asylum because she had suffered persecution on account of her membership in the particular social group constituted by her family.  

In its proposed brief, consistently with the foregoing authorities, the Women Refugees Project, Harvard Immigration and Refugee Clinic takes the position that, if a person suffers persecution because of her family membership, she qualifies for asylum protection - because there is no more fundamental unit in society than the family (in that it is immutable, and family membership is fundamental to identity).  The government's brief in contrast, argues that "social" for purposes of the "social group" prong of the refugee definition, means "of or relating to, human society" and then argues that a family does not qualify.   "A family unit," the government brief argues, "does not constitute a protected category."  The brief further seems to claim that marriage is not immutable, that Ms. Thomas may not be considered a member of a persecuted family because she was related to her father-in-law only by marriage.  The government also seems to take the position that the harm Ms. Thomas suffered as a woman and as a mother (including attacks on her home and having her child almost kidnapped from her arms) was not serious enough to constitute "persecution. "

The analysis of the "particular social group" category that has been fundamental to U.S. law for 20 years is that the “particular social group” category is defined by an immutable or unchangeable characteristic that is basic to social organization, and basic to identity.  In contrast, the government’s Thomas brief presents a novel (and what may be incoherent) conception of social group as a “group characterized by class-based distinctions and each of which also may lead to hostility from the government or oppression by society at large." This formulation could eliminate claims of women based on their gender or other groups persecuted because of their immutable identity or protected status.

The government's brief also seems to argue that the federal courts should not be involved in any substantive review of such asylum matters, but rather that government parties can make ad hoc determinations (especially in cases involving the “particular social group” category”).  The latter position would seem to contradict almost 25 years of rulings by the circuit courts, U.S. Supreme Court and rulings and pronouncements by the executive branch itself as to a lawful structure for asylum decisionmaking. See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Elias-Zacarias v. INS. 502 U.S. 478 (1992) (both asserting authority of federal judiciary to review decisions in asylum area).

While it seems almost incomprehensible that the foregoing, constituting a major departure from long-standing values, law and policy, represents the government’s considered opinion, it is important for interested persons to be aware of the authorities position in the Thomas case.  The government’s brief is available at www.asylumlaw.org.  The proposed Women Refugees Project, Harvard Immigration and Refugee Clinic brief is available at http://www.gbls.org/immigration/AMICUSTHOMAS.pdf.

Persons interested in additional information are welcome to contact Deborah Anker at danker@law.harvard.edu or 617 584-2974.  Attorneys for the Thomas family, Errol I. Horwitz and Edward Bialack, may be reached at 818 347-5268.

^[1] http://www.ca9.uscourts.gov/ca9/Documents.nsf/54DBE3FB372DCB6C88256CE50065FCB8/93FD8C8B9E6B686A88256EDA0052AFC9?OpenDocument

^[2] available at:  http://web.lexis.com/xchange/practiceareas/immigration/default.asp (in BIA & AAU Non-Precedent Decisions)