CA3 on PSG: Avila v. Atty. Gen.

Avila v. Atty. Gen.

"Avila argues that the BIA failed to consider whether Avila’s particular social group (PSG) was cognizable in light of the specific country conditions in Honduras. We agree and will grant Avila’s petition for reconsideration of her PSG. ... Here, on the other hand, the BIA did not adhere to Matter of A-R-C-G-’s requirement to examine Avila’s PSG within the context of the specific country conditions in Honduras. The BIA rejected Avila’s PSG for lack of particularity without considering evidence in the record about “widespread and systemic violence” against Honduran women, “inconsistent legislation implementation, gender discrimination within the justice system, and lack of access to services.”109 Evidence in the record, including that “[l]ess than one in five cases of femicide are investigated,… and the average rate of impunity for sexual violence and femicide is approximately 95%,” may have been relevant in examining whether Avila’s proposed PSG was cognizable.110 Just as the cultural attitudes toward gender were relevant in Matter of AR-C-G-, evidence in the record as to the “machismo culture” in Honduras may be relevant to assessing whether Avila has a cognizable PSG.111 Moreover, in Matter of A-R-C-G-, DHS conceded that the proposed group “married women in Guatemala who are unable to leave their relationship” was sufficient for a PSG asylum claim.112 Given the similarity between that social group and “Honduran women in a domestic relationship where the male believes that women are to live under male domination,” we must remand for the BIA to provide clarification as to its application of Matter of A-R-C-G-, and to determine whether Avila’s proposed PSG is cognizable in light of the specific country conditions. We must also remand for the BIA to consider whether Avila demonstrated a well-founded fear of persecution on account of her PSG. The BIA determined that Avila’s PSG did not “exist independently” of the harm alleged, as required under Matter of M-E-V-G-113 and Matter of W-G-R-. 114 Matter of M-E-V-G- cites to this Court’s prior precedent in Lukwago v. Ashcroft, 115 which states that a PSG “must exist independently of the persecution suffered by the applicant for asylum.”116 However, Lukwago makes clear that in determining whether a PSG exists independently of the persecution suffered, the BIA must consider the PSG in the context both of “past persecution” and a “well-founded fear of persecution.”117 Here, the BIA did not consider whether Avila had demonstrated that she had a well-founded fear of persecution based on her past experiences of abuse and sexual violence. Accordingly, we will remand for the BIA to consider, in addition to whether Avila has suffered past persecution on account of her PSG, whether she has demonstrated a well-founded fear of future persecution. In conclusion, on remand, the BIA should (1) clarify, given the Government’s concession in Matter of A-R-C-G- that the proposed group was sufficient for a PSG asylum claim, its application of Matter of A-R-C-G- to the present case, and consider Avila’s PSG in the context of evidence presented about the country conditions in Honduras and (2) provide guidance in applying both Matter of A-R-C-G- and Matter of M-E-V-G- with respect to past persecution and a well-founded fear of future persecution on account of membership in a PSG."

[Hats off to Ted Murphy and Kaley Miller-Schaeffer!]