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Immigration Law

Jeffrey S. Chase on Social Group, Relocation (Akosung v. Barr)

Jeffrey S. Chase, Aug. 16, 2020

"In Akosung v. Barr, a young woman from Cameroon had been sentenced against her will to marry the village chieftain, or Fon, in order to settle a family debt.  Not wishing to suffer this fate, she first hid locally.  After her family’s assets and funds were seized, their crops were destroyed, and they were barred from attending social activities as punishment, she fled town.

Akosung remained a fugitive in Cameroon for over a year.  A relative who harbored her in another city for most of that time asked her to leave out of fear of repercussions.  After relocating again, she barely evaded capture.  The police declined to get involved.  Akosung eventually managed to cross into Nigeria, and from there, made her way to the U.S.

After an Immigration Judge denied asylum, the BIA dismissed Akosung’s appeal on two grounds.  First, the Board determined that she had not shown harm on account of her membership in a particular social group consisting of “women resistant to forced marriage proposals.”  More surprisingly, the Board concluded that, in spite of the above tale of near capture and narrow escape, Akosung could somehow safely relocate to another part of Cameroon.

Asylum will be denied to one who could reasonably relocate within their country.  Where a dispute is so localized that it can be ended with a move to the next street, neighborhood, or town, the law sees no reason for international intervention.

However, federal regulations that are binding on immigration judges, asylum officers, and the BIA, recognize the complexity of determining whether such relocation, if possible, would be considered reasonable.  Per the regulation:

(3) Reasonableness of internal relocation. For purposes of determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of this section, adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.

That’s quite a lot to consider.  And in saying that the listed factors may or may not be relevant or determinative, the judge or asylum officer is being told to dive in deep in analyzing what factors exist, and how much they should matter.

Furthermore, the regulations state that where the persecutor is the government, or where the applicant has already suffered persecution, there is a legal presumption that such internal relocation is not reasonable.  It’s not clear from the decision whether the issue was considered, but as the facts state that the applicant’s town was ruled by a council, that it was said council that ordered her marriage to the Fon, and that the police ceded jurisdiction over the matter to the council, a strong argument seems to exist that the persecutor in this case is the government.

Not surprisingly, such a detailed, in depth, thoughtful analysis that cedes so much authority to the immigration judge runs contrary to EOIR Director James McHenry’s goal of assembly line, rubber stamp adjudication.  Of course, his agency’s recently proposed regulations aimed at destroying asylum directly attack this rule, and seek to replace it with a much simpler one in which the judges would draw a negative inference from the fact that the asylum seeker had managed to reach the U.S.  It’s not clear why reaching the U.S. to seek asylum would demonstrate the reasonableness of remaining in the country in which one is being targeted.  Perhaps McHenry seeks to imbue an entirely new meaning to the lyric from Frank Sinatra’s ode to my hometown: “If I can make it there, I’ll make it anywhere?”

In Akosung, the Board treated the regulation as if McHenry’s changes were already in effect.  It simply saw that it could easily rubber-stamp the IJ’s denial by checking the “internal relocation” box, and certainly did not bother to undertake the analysis that the actual binding regulation requires.

Fortunately, the Ninth Circuit called foul.  Noting that the regulation requires a conclusion that, after considering all of the listed factors, it would be reasonable to expect the applicant to relocate, the court noted that “it hardly seems ‘reasonable to expect’ one facing persecution or torture to become a fugitive and live in hiding.”

The court added some additional statements of the obvious: first, that “‘relocate’ most naturally refers to resettlement or a change of residence, not the unstable situation of one who must always be ready to flee.”  And also: “living in hiding does little to establish that a person is able to “avoid future persecution.”  To the contrary, it establishes the opposite; hence, the hiding.

The Ninth Circuit also found error in the Board’s social distinction determination.  The Board upheld the immigration judge’s questioning of “how anyone in society” would be able to recognize someone “as an individual who has declined a marriage proposal from a fon.”   

The court first noted that the statement seemed to erroneously apply the “optical visibility” approach to social distinction (i.e. that the group member should be recognizable on sight to members of society), an approach the Board disavowed in Matter of M-E-V-G-.  But the court added that even if the Board here meant that society in Cameroon would not recognize the group as distinct, Akosung’s experience, and that of another woman who she described as being successfully hunted down after also attempting to evade marriage to the Fon, demonstrate otherwise.

The court then quoted Matter of M-E-V-G- as requiring the group to be viewed as distinct “within the society in question,” adding that “the Board should have taken that into account.”

The court did not discuss further how “the society in question” should be defined.  And the court’s citation was to page 237 of M-E-V-G-.  But as I have noted when lecturing on the topic, the Board on page 243 of the same decision clarified that “persecution limited to a remote region of a country may invite an inquiry into a more limited subset of the country’s society, such as in Matter of Kasinga...where we considered a particular social group within a tribe.”

Later, on page 246 of M-E-V-G-, the Board stated that in Matter of Kasinga, “people in the Tchamba-Kunsuntu tribe” would view members of the particular social group in that case to be “a discrete and distinct group that was set apart in a meaningful and significant way from the rest of society.”  The Board then stated its conclusion that the social group in Kasinga “was perceived as socially distinct within the society in question.”

Attorneys should cite to Akosung (along with M-E-V-G-) in arguing that the “society in question” to be considered for social distinction purposes is the society their clients inhabit."

Copyright 2020, Jeffrey S. Chase.  All rights reserved.

Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals. He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award. Jeffrey is also a past recipient of AILA’s Pro Bono Award. He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.