AILALast week, the American Immigration Lawyers Association (AILA) filed an amicus brief with the Board of Immigration Appeals (BIA) urging the Board to restore a broad interpretation of “members of a particular social group.” The “social group” status is important because those who qualify can receive political asylum in the United States.

On pages 11 through 15, the AILA brief argues that:

Persons of conscience who have testified or informed against criminal gangs are also worthy of recognition under the enumerated grounds of protection because they are members of a particular social group united by a common, immutable past experience, as well as a shared commitment to the rule of law. See Acosta, 19 I&N Dec. at 233.

The brief then tells the story of Diego C- A-, a baker in Columbia who reported to the police that one of his customers bragged about being a leader in the Cali drug cartel who organized drug smuggling. After the cartel learned about his whistleblowing, Diego and his son narrowly escaped a kidnapping attempt.  They and the prosecutor they worked with all fled Columbia and sought asylum in the United States.  In 2006, the BIA decided that Diego did not qualify for asylum because his status as a whistleblower was not “socially visible.” The BIA also held that when Diego decided to become a whistleblower, he assumed the risk that the cartel would try to kill him. AILA argues that his status is “so fundamental to [his] identity or conscience that it ought not be required to be changed.” Quoting Acosta.

AILA notes that the Third Circuit U.S. Court of Appeals has found that status as a former witness should qualify for protection. Garcia v. Attorney General of the United States, 665 F.3d 496, 504 (3d Cir. 2011) (former witnesses against Guatemalan gang share immutable past experience that they cannot change and could not be asked to change).  The United Nations High Commissioner for Refugees issued a Guidance Note on Refugee Claims Relating to Victims of Organized Gangs, 31 March 2010, ~ 38 (resistance to criminal gangs may be considered an immutable characteristic fundamental to conscience and the exercise of human rights because it is founded on respect for the rule of law and the right to freedom of association.).

I thank AILA attorneys Benjamin R. Casper and Vikram K. Badrinath for applying their talents to advance the rights of who have too few.