A PARTICULAR SOCIAL GROUP CANNOT BE DEFINED ONLY BY THE PERSECUTION FEARED BY ITS MEMBERS
By: Margarita Baldwin*
In a recent decision the Court of Appeals for the 7th Circuit upheld the denial of asylum for Johanna Cece, a citizen of Albania, who argued on appeal that young Albanian women in danger of being trafficked for prostitution constitute a social group. See Cece v. Holder, No. 11-1989, February 06, 2012 US 7th Circuit. The Circuit Court, determined that the group, defined solely by the persecution feared by its members, lacks the type of common, immutable characteristics which are prerequisite to constitute a particular social group. In addition, Cece did not establish a well-founded fear of persecution upon her return to Albania. The Circuit Court denied petition for review.
Cece entered the US in 2002 on a fake Italian passport under the Visa Waiver Program. She was 23-year-old at that time. Cece timely applied for asylum and withholding of removal claiming that she could not return to Albania because she would be kidnapped and forced into a prostitution ring as a young woman living alone. Also, she stated that the police would not protect her since she is an Orthodox Christian and supports an opposition democratic party that was not in power at that time.
At a hearing before an Immigration Judge (“IJ”), Cece explained how the leader of a local Muslim gang harassed and stalked her throughout the city she lived. Police took no action in response to her complaints. In fear that she would be kidnapped, she moved 120 miles north to live with her sister but her sister moved to the US shortly thereafter. Living alone again, Cece felt unsafe in fear that Reqi or another gang member would kidnap her and force into prostitution, so in 2002, she entered the US on a fake Italian passport. The IJ granted her asylum in 2006. While Cece’s expert witness testified about the pervasive sex trafficking problem in Albania, the IJ concluded that Cece belonged to a particular social group consisted of “young women who are targeted for prostitution by traffickers in Albania” that the government is unwilling or unable to protect. However, subsequently, the BIA decided that the group lacked social visibility and did not share “a narrowing characteristic other than the risk of being persecuted. On remand, the IJ accepted the BIA’s conclusion that Cece failed to identify a “cognizable social group.”
Generally, particular social group is defined by immutable or fundamental characteristics. It also has to be “socially visible” and “particular,” i.e. very specific. However, the 7th Circuit rejects “social visibility” and “particularity” of the social group that other circuits require. See Gatimi v. Holder,578 F.3d 611 (7th Cir. 2009) (rejecting social visibility), Benitez- Ramos v. Holder,589 F.3d 426 (7th Cir. 2009) (rejecting particularity requirement). The governing case law states that a social group must share “immutable or fundamental characteristic beyond the risk” of past or present harm. See Escobar v. Holder, 660 F.3d 267, 271 (7th Cir. 2011), Gatimi v. Holder, supra at 616; In re Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA 1996).
In its majority decision the Court further explained that even if the members of the proposed group fear forced prostitution, a social group cannot be established merely by the fact of persecution or “the shared characteristic of facing danger.” See Jonaitiene v. Holder, 660 F.3d 267, 271 (7th Cir. 2011). And young Albanian women who fear forced prostitution have very little or nothing in common besides being targets of those criminal activities. See Gatimi v. Holder, 578 F.3d 611, 616 (7th Cir. 2009).
The majority decision listed other difficulties with Cece’s asylum application: her fraudulent entry to the US; and objective fear of future persecution on account of her membership in the particular social group was not established – she did not report any specific or ongoing threat in her testimony; and the record provided that she could relocate safely within Albania.
* Margarita Baldwin is a law student intern at BOILA, PC.