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This case is garbage: a thread.
The Board issued a decision in Matter of H-L-S-A-, 28 I&N Dec. 228 (BIA 2021). In this case, the Board picks a fact pattern that doesn't apply to most Central American gang informant/witness cases, and ignores/distorts the law to attempt to deny 100s of 1000s of people asylum.
Facts summarized: asylum seeker flees MS-13. Comes to US. Ends up detained in US. Threatened by MS-13 in jail. Cooperates with law enforcement against MS-13 in the US. Claims fear of return because MS-13 will kill him in home country (clearly this is true). Loses asylum case.
Malphrus, again, starts off with "well-settled" law that is not law or well-settled. It is not well settled that victims of crime or those who fear crime dont qualify for asylum. That is false. Asylum is decided on a case by case basis.
Example: A woman who was raped is a victim of a crime and would likely qualify for asylum under our law for persecution based on gender. The fact that she was a victim of criminal activity doesn't mean she doesn't qualify for asylum. It is determined by the facts in each case.
This is a phrase EOIR likes to cite often. But being the victim of criminal activity does not disqualify someone from asylum in the United States. The question is WHY they were targeted and if that reason is protected.
Malphrus and the panel trip all over themselves to distort long-standing precedent that also sucked, which held that criminal informants did not qualify basically because they gave info in secret to law enforcement. At that time, a requirement for asylum was social VISIBILITY.
It has long since been determined that ocular visibility is not a requirement for asylum. Rather, the question is IF a person is a member of a social group, and their membership became public knowledge, would that membership in the group be recognized by the society.
Malphrus then goes on to explain that gangs/cartels who target informants/witnesses/those who file police reports also target other people so those groups cannot be protected. This is laughably false.
It doesn’t matter under the law if cartels/gangs harm every group in a country. The question is WHY they chose to inflict harm on the group. Is one central reason for the harm a protected ground?
Ex: If the proud boys attack members of the jewish faith and also LGBTQ+ individuals, that doesn’t mean neither of those groups gets protection because the PBs hates more than one group for their protected traits. The Board says this group hates everyone, so no one is protected.
This case attempts to state that people who file police reports against the gang/cartel cant qualify for asylum bc that’s not as public as testifying court. There is no social visibility requirement.
Many years ago, in Matter of CA, the Board acknowledged that the question is whether the gang/cartel came to know about the cooperation in some way. The question really came down to whether the persecutor knew of the action such that they would harm the person for being in group.
In Central America we know that the gangs have members watching police stations to see who makes a report and also have many informants working within the police departments and government. It doesn't matter if you testify publicly or file a police report locally. The gangs know.
The Board used this case with an uncommon fact pattern to try to rewrite their BS case law to deny people who are being targeted for torture and death asylum. It will impact hundreds of thousands of asylum seekers from many countries.
Then they double down by further making it impossible to win such a case. IF there is a witness protection law in the country, a group of people who publicly testified may be viable. But that group would be denied in practice BECAUSE there is a law allegedly to protect them.
Even the Salvadoran AG admits publicly that the witness protection law there is a joke and people who cooperate with law enforcement are regularly murdered. The US government conveniently ignores that fact every day when it sentences asylum seekers to torture and death.
They ultimately sentenced this asylum seeker to death. They know he will be tortured and killed and so do the rest of us. But it was more important for them to ensure that others bringing similar cases would also be tortured and killed so that they can't stay here.
They attempted to wrap this case in a bow, but offering what seemed like a concession, but is really a flaming pile of shit with a sprinkle on top.
tl;dr: the Board is lawless and this decision is another attempt to deny asylum seekers a fair day in court. The Board cannot be trusted. I don't even know how it could be fixed at this point. I honestly just want to see it gone.
I know this isn't in the weeds enough for my immigration law colleagues here, but it is an attempt to make this terrible news somewhat accessible to the public on Twitter.
Also, I have many witness-based cases briefed and waiting decision from the Board. With thousands of pages of country conditions. I imagine other practitioners do too. So these will be ripe for circuit court review sooner rather than later.
