733 F.3d 662 (7th Cir. 2013), 11-1989, Cece v. Holder
|Citation:||733 F.3d 662|
|Opinion Judge:||ROVNER, Circuit Judge.|
|Party Name:||Johana CECE, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.|
|Attorney:||Scott E. Bratton, Attorney, Wong & Associates, Cleveland, OH, for Petitioner. Lyle D. Jentzer, Attorney, Andrew C. Maclachlan, Attorney, OIL, Attorney, Department of Justice, Washington, DC, for Respondent. Charles Roth, Attorney, National Immigrant Justice Center, Chicago, IL, for Amicus Curiae.|
|Judge Panel:||Before EASTERBROOK, Chief Judge, and POSNER, FLAUM, MANION, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges. EASTERBROOK, Chief Judge, dissenting. MANION, Circuit Judge, with whom EASTERBROOK, Chief Judge, joins, dissenting.|
|Case Date:||August 09, 2013|
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
Argued Oct. 5, 2011.
Decided Feb. 6, 2012.
Reargued En Banc Sept. 27, 2012.
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United States asylum laws grant refuge to those who have been persecuted in foreign lands because of race, religion, nationality, membership in a particular social group, or political opinion. The complexity surfaces when we try to define terms such as persecution and " social group" — the latter of which has perplexed this court and others, and is in the spotlight once again in this case.
Johana Cece, a native of Albania, arrived in the United States in 2002, and sought asylum within the requisite time allotted. The immigration judge deemed Cece credible, and therefore we use her testimony and the immigration judge's factual findings as a basis to set forth the facts of the case.
Cece lived with her family in Korç ë, Albania until her parents left the country in 2001. As a young woman living alone in Albania, Cece caught the attention of a well-known local criminal gang that was notorious for forcing women into prostitution rings. One of the leaders of that gang, a man Cece knew as " Reqi," began following her around town, offering her rides, and inviting her on dates. Cece knew Reqi by reputation— that is, for his membership in a gang known for its participation in prostitution rings, murder of other gang members, and the drug trade. Cece also testified that the gang members appeared to enjoy complete immunity from the law. Cece had long seen Reqi near her high school, where he cruised the area looking for girls and offering drugs to young women. Cece had heard that one of these women had been kidnapped by Reqi and forced into prostitution. Reqi's stalking culminated in a confrontation on June
4, 2001, when Reqi followed Cece into a cosmetics store, cornered her, and pinned her to a wall. There he confronted her and asked her why she would not go out with him. Reqi made it clear to Cece that he could not be stopped and that he would find her and do whatever he wanted to her. She told him to let go, but he merely tightened his grip and held her there. There were several people in the store, but no one came to her aid. Cece surmised that they too were frightened by Reqi. Cece's friend convinced her to report the assault to the police, but the police perfunctorily dismissed her accusation, claiming she lacked proof.
A few days later someone threw a rock through Cece's window. She stopped going out, stopped going to school, and made plans to leave Korç ë .
Cece moved 120 miles north to Tirana to stay with her sister, who lived in a university dormitory, but her safety there was short-lived. A year later, her sister left the country and, without access to the dormitory or family with whom to live, Cece was once again left alone to fend for herself. As a single woman living alone in Albania, Cece claims she remained a target no matter where she lived.
In 2002, fearing for her safety, Cece fraudulently procured an Italian passport and came to the United States under the Visa Waiver Program. Less than a year later, she applied for asylum and withholding of removal, asserting that she feared returning to Albania because she believed that as a young woman living alone she would be kidnapped and forced to join a prostitution ring.
At Cece's hearing, Dr. Bernd Fischer, a Professor in Balkan History at the Indiana University-Purdue University Fort Wayne and an expert on Albania, testified that Cece's experience was " unfortunately usual." (R. 223). Dr. Fischer described a very serious problem of human trafficking for prostitution in Albania in which gangs, often with the protection, and at times the participation of the police, kidnap women and spirit them out of the country either through Greece, Kosova, or across the Adriatic Sea to Italy. Dr. Fischer described how anomalous it is for a single woman to live by herself in Albania, that such a woman would be an ideal target for a trafficker, particularly if she had been such a target in the past, and that the problem was pervasive throughout Albania and not limited to Cece's home village of Korç ë . Dr. Fischer testified that although gang members primarily target women between the ages of sixteen and twenty-six, many women outside of the target age range are also forced into prostitution. Finally, he noted that the Albanian judicial system does not adequately enforce laws against traffickers. Reports issued by the U.S. State Department in 2004 corroborated his representations of a large-scale problem with human trafficking in Albania. (R. 573-84).
The immigration judge granted Cece asylum in 2006, concluding that she belonged to the group of " young women who are targeted for prostitution by traffickers in Albania," and that the Albanian government was unwilling or unable to protect such women. (R. 128-29). He noted in particular that Albania stands out in Europe as a major country of origin of traffickers in prostitution; the government's judicial system is not effective against the problem; Albania suffers from a major and ongoing trafficking of young women by gangs; and there is no prospect in the foreseeable future of the government being able or willing to address the problem. (R. 129). The immigration judge also found Cece's testimony credible and her fear reasonable.
The Board of Immigration Appeals vacated the decision of the immigration judge, however, finding that Cece failed to establish past persecution and had successfully relocated within Albania. (R. 330-31). Specifically, the Board held that the immigration judge erred in determining that Cece was a member of a social group of young women who have been targeted for prostitution by traffickers, noting its precedent that a social group must have social visibility and share a narrowing characteristic other than the risk of being persecuted.
On remand, the immigration judge expressed concern with the Board's conclusion that Cece did not belong to a protectable social group and that she could safely relocate within the country. (R. 114-116, 119-120). The immigration judge, however, recognized that he was bound by the Board's determinations and denied the application for asylum. The Board dismissed Cece's second appeal, emphasizing that Cece's proposed group was defined in large part by the harm inflicted on its members and did not exist independently of the traffickers. 1 The Board also concluded that there was insufficient evidence in the record that internal relocation was not reasonable. (R. 9).
Cece appealed to this Court and over one dissent, the panel denied Cece's petition for review, agreeing with the Board that Cece had not named a cognizable social group and that the Board had sufficient evidence to conclude that Cece could relocate safely within Albania. We granted Cece's petition for rehearing en banc and vacated the panel's opinion and judgment.
To be eligible for asylum, an applicant must show that she is " unable or unwilling to return" to the country of his nationality " because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). An applicant who successfully proves that she was subject to past persecution is presumed to have a well-founded fear of future persecution, which the Attorney General can rebut by demonstrating a change in conditions in the applicant's home country. 8 C.F.R. § 1208.13(b)(1); Mustafa v. Holder, 707 F.3d 743, 750-751 (7th Cir.2013). The applicant must show that she fits within one of those categories and that there is " a nexus between her fear of future persecution and one of those five protected grounds." Escobar v. Holder, 657 F.3d 537, 542 (7th Cir.2011); Ishitiaq v. Holder, 578 F.3d 712, 715 (7th Cir.2009).
The primary question in this case is whether Cece has proffered a particular social group that is cognizable under 8 U.S.C. § 1101(a)(42)(A). Whether a group constitutes a particular social group under the Immigration and Nationality Act is a question of law that we review de novo, while giving Chevron deference to the Board's reasonable interpretation set forth in precedential opinions interpreting the statute.
Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Escobar, 657 F.3d at 542. See also, Ayala v. Holder, 640 F.3d 1095, 1096-97 (9th Cir.2011) (whether a group constitutes a particular social group under the Immigration and Nationality Act is a question of law, which a court of appeals reviews de novo); Castaneda-Castillo v. Holder, 638 F.3d 354, 363 (1st Cir.2011) (same); Crespin-Valladares v. Holder, 632 F.3d 117, 124 (4th Cir.2011) (same); Gomez-Zuluaga v. Att'y Gen. of United States, 527 F.3d 330, 339 (3d Cir.2008) (same); Malonga v. Mukasey, 546 F.3d 546, 553 (8th...
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