REWRITING HISTORY: BIA DISEMBOWELS ACOSTA, READS SEMINAL “PARTICULAR SOCIAL GROUP” — “LANDOWNERS” — OUT OF REFUGEE PROTECTION — Matter of E-R-A-L- — What Would Millions of Kulaks Exterminated By Stalin Think Of The “Towered Ones” Tone Deaf, Ahistorical Approach To Human Lives?

https://www.justice.gov/eoir/page/file/1247176/download

Matter of E-R-A-L-, 27 I&N Dec. 767 (BIA 2020)

BIA HEADNOTE:

(1) An alien’s status as a landowner does not automatically render that alien a member of a particular social group for purposes of asylum and withholding of removal.

(2) To establish a particular social group based on landownership, an alien must demonstrate by evidence in the record that members of the proposed group share an immutable characteristic and that the group is defined with particularity and is perceived to be socially distinct in the society in question.

(3) The respondent’s proposed particular social groups—comprised of landowners and landowners who resist drug cartels in Guatemala—are not valid based on the evidence In the record.

PANEL:  MALPHRUS, Acting Chairman; CREPPY and HUNSUCKER, Appellate Immigration Judges

OPINION BY: Acting Chairman Judge Garry D. Malphrus

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I’ll leave a full analysis of this anti-asylum monstrosity to others more scholarly and patient. Here are a few “off the cuff” observations:

  • The BIA basically “blows off” contrary Circuit Court precedents. See, e.g., Córdoba v. Holder, 476 F. 3d 1106 (9th Cir. 2013) (wealthy educated landowners and businesspeople); N.L.A. v. Holder, 743 F.3d 425 (7th Cir. 2014) (landowners in. Colombia);
  • The BIA’s assertion that “landowners” must have “similar circumstances” conflates the requirements of a “particular social group” with “nexus.” Obviously, in some circumstances it won’t make any difference whether one is a big or small landowner, urban or rural. In other situations it might. If only certain landowners are persecuted, that is an issue of causation or “nexus,” not an element of the particular social group;
  • While “landownership” might not be “immutable,” it certainly is “fundamental to identity” in most situations. The BIA’s assertion to the contrary is absurd. Indeed, “landownership” was one of the keys to suffrage when our country was founded and has been one of the most clearly recognized and dearly held distinctions in human history. Even today, most individuals in the world who are fortunate enough to own land identify with it and are not likely to surrender it lightly;
  • The idea that a landowner should reasonably be expected to surrender his or her land is equally absurd, particularly in the context of surrendering it to drug cartels for their use. What truly perverted policy extremes the BIA engages in to avoid their responsibility to grant life-saving legal protection to the persecuted;
  • As pointed out in my “screaming headline,” throughout history, only religion or ethnicity might equal landownership as a basis for class identification, political standing, and persecution. The BIA’s obviously result-oriented decision in this case is both inane and ahistorical;
  • Don’t kid yourself! Notwithstanding some disingenuous suggestions to the contrary, no landowner will ever be recognized as within a “particular social group” and granted asylum under this decision. The BIA is encouraging Immigration Judges to “find any reason to deny” all such cases. And if the judge doesn’t deny it, the BIA will.  
  • Will the Article IIIs continue to allow and facilitate these life-threatening perversions of the law, logic, facts, and history by the BIA and the Trump regime? Maybe. Maybe not. Only time will tell. But, history will record and “out” the twisted logic and intellectual dishonesty employed by the regime and the BIA to unlawfully deny protection to those in need.

Due Process Forever; Ahistorical Nonsense Never!

PWS

02-12-20