Unpub. BIA Asylum Remand; El Salvador; Domestic Violence; One-Year Bar

Prof. Lindsay M. Harris writes: "I write to share a positive decision from the BIA for a mother from El Salvador fleeing domestic violence. It may be helpful on the one-year filing deadline and immigration court backlogs, particular social group, nexus, and "ability to leave." Here is a summary of the key points and ... the redacted decision [dated Nov. 1, 2016 is linked here]:

* The BIA disagreed with the IJ's finding that my client was barred from asylum by the one-year filing deadline. She filed at her first master calendar, which was scheduled several months after her one year from her arrival date. The BIA found "Under the particular circumstances presented in this case, where the respondent filed her asylum application at the earliest opportunity at her initial master calendar hearing, the scheduling of which was outside of her control, we conclude that the 'extraordinary circumstances' test of Section 208(a)(2)(D) of the Act has been satisfied..." Although the 9/14/16 OPPM from the OCIJ is helpful for current asylum applicants, allowing them to file the I-589 at the window, it does not address individuals who already missed the deadline, so attaching this redacted decision may help if you have clients in that situation.

* The BIA also disagreed with the IJ's nexus finding. He found she was not a member of the particular social group of Salvadoran women unable to leave a domestic relationship because she "physically left" her abuser's home. The BIA found that where the respondent's inability to have a "normal social life" in El Salvador, including a relationship with another partner, shows that she was unable to leave the relationship. The BIA found her to be a member of the particular social group and "conclude[d] that 'Salvadoran women unable to leave a domestic relationship is a cognizable particular social group.'"

* The BIA remanded to the IJ to address whether the abuse my client suffered rose to the level of persecution, whether the Salvadoran government was unwilling or unable to protect her former partner, and to consider humanitarian asylum. The BIA also instructs the IJ to consider two alternative PSGs articulated in the pre-hearing brief - "Salvadoran women viewed as property by virtue of their status in a domestic relationship" and "Salvadoran women unable to leave a domestic relationship with a close gang affiliate."

* The BIA concluded in light of the record and the arguments that remand to a different immigration judge was appropriate.

Huge thanks to the Center for Gender and Refugee Studies, especially Blaine Bookey, who contributed an amicus brief on the "unable to leave" issue, and to Human Rights First & Akin Gump, who submitted an amicus on the one-year filing deadline. I supervised then-Georgetown law students Shaw Drake (now an EJW fellow at Human Rights First and instrumental in the issuance of their critically important report on immigration backlogs) and Breanne Palmer (currently in the EOIR honors program) who built a stellar record and fought mightily against a hostile trial attorney and a difficult judge. I took the case on appeal pro bono when I left Georgetown. I am happy to share my briefing in the case if that's at all helpful."