The News From the Courts column is written by Maria Bjornerud, an immigration attorney with an office in Southaven, MS.  Originally from Russia, Ms. Bjornerud is licensed to practice law in Tennessee and Mississippi.  She can be contacted via email at mbjorne@msn.com.

GAO v. GONZALES, Nos. 04-1874-ag, (2nd Cir. 2006) holds that women who have been sold into marriage and who live in a feudal community in China where forced marriage is condoned constitute “particular social group”; petitioner has established that she fears the persecution “on account of” her membership in a “particular social group”; IJ’s conclusion that petitioner failed to show that she would not have been protected by the government and that petitioner could safely relocate within China were not based on substantial evidence. BIA’s decision affirming denial of asylum, withholding of removal, and protection against torture vacated and remanded.

Before: CALABRESI, STRAUB, and WESLEY:

Petitioner grew up in a rural part of China where the practice of forced marriages was sanctioned by society and by the local authorities. Petitioner’s parents sold her into forced marriage in return for an up-front payment of 18,800 RBM. Petitioner was to marry upon reaching her twenty-first birthday. When Petitioner tried to break the engagement, her husband-to-be threatened her that if she refused to marry him, his uncle, a powerful local official, would arrest her.

To escape Petitioner moved away from home and took a job in another part of the country. When her parents refused to tell Petitioner’s husband-to-be where she had moved, he vandalized their home. He eventually found out about Petitioner’s whereabouts and Petitioner had to flee to the United States six months later out of fear that, if she remained in China, she would be forced into marriage. Since Petitioner left her husband–to–be continued to harass her family.

At the hearing, in addition to her testimony and a corroborating affidavit from her mother, Petitioner introduced into evidence the 2001 State Department Country Report on Human Rights Practices in China, consistent with her testimony. The IJ found Petitioner credible, but concluded that Petitioner’s persecution did not arise from a protected ground such as membership in a particular social group, but was simply “a dispute between two families.” The IJ also found that the record did not establish that the government would not protect her from her husband-to-be. Finally, the IJ found that because Petitioner “was able to relocate safely to another city,” she did not need asylum in the United States. The IJ denied Petitioner’s claims for asylum, withholding of removal and also without separate analysis her CAT claim. The BIA summarily affirmed.

The court concluded that the IJ failed to apply the correct definition of the “particular social group” ground as established by BIA and judicial precedent in finding that Petitioner’s persecution were not “on account of” a legally protected ground. The court stressed that Matter of Acosta’s broad interpretation of “particular social group” encompassed “any group, however populous, persecuted because of shared characteristics that are either immutable or fundamental.” In Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993). The court held that the statutory term “particular social group” was broad enough to encompass groups whose main shared trait was a common one, such as gender, so long as the group shared a further characteristic that was identifiable to would-be persecutors and was immutable or fundamental. 

The court established that Petitioner belonged to a particular social group that shared more than a common gender. The court found that Petitioner’s social group consisted of women who had been sold into marriage (whether or not that marriage had yet taken place) and who lived in a part of China where forced marriages were considered valid and enforceable. The court found that these characteristics satisfied the Matter of Acosta test. Moreover, the court found that Petitioner’ had established that she might well be persecuted in China–in the form of lifelong, involuntary marriage–“on account of” her membership in this group.

The court rejected the IJ’s conclusion that the financial arrangement between the families and subsequent breach of an oral marriage contract somehow precluded a finding that Petitioner had been persecuted “on account of” her membership in a “particular social group.” The court held that Petitioner had established a nexus between the persecution she feared and the “particular social group” to which she belonged.

The court held that the IJ’s finding that Petitioner had not met her burden of establishing that the Chinese government would not protect her was not supported by substantial evidence. The court found that the Country Report was consistent with Petitioner’s testimony and clearly stated that trafficking in women, for marriage and prostitution, was widespread, and that official efforts to combat the problem were unsuccessful.

The court also held that the IJ’s conclusion that Petitioner could have relocated within China because she “was able to relocate safely to another city” was contradicted by the record. The court found that the record clearly showed that Petitioner was unable to safely relocate within the country and, indeed, had to flee shortly after her whereabouts were discovered. The court has pointed out that when the BIA denies a claim based on the availability of internal refuge, the BIA must find not only that Petitioner could avoid persecution by relocating, but also that “under all the circumstances it would be reasonable to expect the applicant to do so,” 8 C.F.R. § 208.13(b)(2)(ii). The regulations, further, direct the BIA to consider, among other things, “whether the applicant would face other serious harm in the place of suggested relocation; … administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.” Id. § 208.13(b)(3).

The court vacated BIA’s decision affirming denial of asylum, withholding of removal, and remanded to the IJ to consider Petitioner’s CAT claim.