Tag Archive for: religion

Cyrus Mehta

Advancing a “Social Group Plus” Claim After Matter of A-B-

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In Matter of A-B–, 27 I&N Dec. 227 (A.G. 2018), former Attorney General Jeff Sessions overruled a prior Board of Immigration Appeals (BIA) precedent, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which held  that victims of domestic violence can qualify for asylum based on their particular social group (PSG) of “married women in Guatemala who are unable to leave their relationship.” Although victims of domestic violence has been recognized as a particular social group in US asylum law as well as in the asylum laws of other countries like the United Kingdom,  Canada and New Zealand,  Sessions set aside Matter of A-R-C-G resulting in a setback for persons fleeing domestic violence.

There is much commentary revealing how the reasoning of Matter of A-B was dicta. The application of Matter of A-B has been successfully challenged in the context of credible fear claims in Grace v. Whitaker.  Therefore, despite Matter of A-B, an applicant must still assert membership in a particular social group when fleeing domestic violence. In Matter of M-E-V-G-, 26 I&N 227 (BIA 2014), the Board acknowledged that whether a particular social group exists is a case-by-case determination and the AG’s decision should not be read to foreclose alternative particular social group formulations for victims of domestic violence where the facts of the case support it. Matter of M-E-V-G-, 26 I&N 227, 242 (BIA 2014); Matter of A-B-, 27 I&N Dec. 227, 319 (AG 2018) (noting that this decision is consistent with Matter of M-E-V-G-).  It may however be prudent for an applicant fleeing domestic violence to assert other grounds of asylum in addition to membership in a particular social group.

As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2).

The agile immigration law practitioner must endeavor to invoke grounds in addition to particular social group when representing an asylum claimant fleeing domestic violence such as race, religion, nationality or political opinion. This is what I refer to as a “social group plus” claim.   Often times, the additional ground can be blended and intertwined with the particular social group ground that would only strengthen this ground, and enable the client’s claim to be readily distinguished from Matter of A-B.

 Religion and Ethnicity

It may be worth exploring whether an applicant can claim asylum on account of race, religion or nationality. Many applicants may belong to ethnic backgrounds or religions whose members may face discrimination in the country. Hence, a victim of domestic violence who belongs to a religion or ethnic group that is disfavored may find it more difficult to seek the help of the authorities when seeking protection from domestic violence perpetrated by a private actor. Establishing this fact, based on the claimant being part of a disfavored group, will enable such a claim from overcoming the elevated concern of “private actor harm” in Matter of A-B. There are several decisions that have acknowledged persecution claims based on religion, ethnicity or both. In one decision, the Board held that the respondent faced anti-Semitic persecution on account of the respondent’s Jewish nationality. Even if ethnicity is not part of the grounds for asylum, an ethnic group may fall under the “nationality” ground.   It can thus be argued that ethnicity or religion can also constitute “nationality”, such as Jewish nationality in the Ukraine, Armenian in Russia or Parsi Zoroastrian in a Muslim majority country. The following decisions support such an argument:

  • Pan v. Holder, 777 F.3d 540 (2d Cir. 2015) (Korean ethnicity and evangelical Christian religion).
  • Shi v. AG, 707 F.3d 1231 (11th 2013)(Christian religion in China).
  • Bracic v. Holder, 603 F.3d 1027 (8th 2010) (Muslim religion and Albanian ethnicity).
  • Matter of O-Z and I-Z-, 22 I&N Dec. 23 (BIA 1998) (Jewish nationality).
  • Ahmed v. Keisler, 504 F.3d 1183 (2007) (Bihari in Bangladesh was a disfavored group and respondent likely to be targeted as a result).

Moreover, as family qualifies as a social group under Matter of  L-E-A, 29 I&N Dec. 40 (BIA 2017), an applicant can also distinguish ethnicity or religion of the family that stands out in the country or because it may be a vulnerable minority group. This can overcome the nexus barrier in L-E-A. Although former Acting Attorney General Whitaker referred L-E-A to himself, L-E-A is still good law at present. There is also a long history of family units constituting particular social groups. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as…kinship ties.” Matter of C-A-, 23 I&N Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993).

Imputed Political Opinion

Imputed political opinion can also be developed in a domestic violence asylum case when the abusive spouse is politically powerful and uses the state apparatus to persecute defiant or feminist spouse or spouses who defy their husband’s authority under an honor code such as Kanun in Albania.  Long before there was any precedent decision, in 1996,   I successfully represented a respondent claiming asylum who escaped domestic violence abuse perpetrated by her husband who was a powerful police officer in Bangladesh. He did not allow her to work or start her own business, and thus she was persecuted for expressing herself, which went against the mores of her family and society. She was unable to seek protection as her husband was a powerful police officer.   Around the same time, in another case where I had no involvement,  an Immigration Judge granted asylum to Bangladeshi woman who had been beaten by family on account of her role in the Jatiyo Mahila Party and because of her efforts to lead an independent life. Matter of Sonia Sharmin (A73 556 033, IJ New York, NY, Sept 30, 1996). In Fatin v. INS, 12 F.3d 1233 (3d Cir 1993), Judge Alito writing for the majority agreed that gender was an immutable characteristic and thus satisfying the particular social group definition, and in addition, the respondent’s feminism or opposition to male dominance constituted political opinion. In a post Matter of A-B– decision, an Immigration Judge in San Francisco granted asylum to a woman from Mexico who suffered abuse from both her mother and her husband  on account of both particular social group and her feminist political opinion.

There is also a nexus between gangs and the government in the Northern Triangle countries. Gangs may control the government, and in some cases they have become the “de facto government” controlling significant areas of the country. This factor too can give rise to an alternative ground for asylum under political opinion.

Consider the following cases in advancing imputed political opinion in addition to membership in a particular social group for an asylum claimant fleeing domestic violence:

  • Al-Saher v. INS, 268 F.3d 1143 (9th 2001) (political opinion encompassed more than electoral politics or formal political ideology or action).
  • Sangha v. INS, 103 F.3d 1482 (9th 1997) (political opinion can be an actual opinion held by the applicant or an opinion imputed to him/her by persecutor).
  • Ahmed v. Keisler, supra (Bihari in Bangladesh who wants to be sent to Pakistan can show imputed political opinion in addition to membership in particular social group).
  • Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994) (membership in union can constitute social group, but if union is also opposed to the government in economic dispute, can impute political opinion to its member).

Matter of A-B was a cowardly decision based on Session’s personal bias. He abused his authority as Attorney General to overturn an established precedent decision that has provided protection to thousands of victims of domestic violence in the United States. Although Sessions is no longer Attorney General, this is his dark legacy that must not be allowed to undermine the rights of mainly women fleeing domestic violence. Immigration practitioners must use every strategy to both overcome and take down Matter of A-B.

 

Cyrus Mehta

How Cyrus’ View of Religious Toleration May Have Inspired the American Constitution

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By Gary Endelman and Cyrus D. Mehta

The display of the Cyrus Cylinder in museums across America has sparked interest on whether Cyrus, who founded the Persian Empire in 549 BC, may have influenced the U.S. Constitution.1  Our essay explores  the  extent to which Cyrus  may have influenced one of the Founding Fathers, Thomas Jefferson, who in turn inspired the Religion Clauses in the First Amendment, which provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”.

The Cyrus Cylinder describes how Cyrus freed people enslaved by the Babylonians, and allowed them to practice their religion and returned their various gods to their sanctuaries. A notable inscription from the Cyrus Cylinder reads, “I returned them unharmed to their cells, the sanctuaries that make them happy.” 2  The Cyrus Cylinder, often referred to as the first charter of human rights, demonstrates that Cyrus was a tolerant king who allowed people in his vast multinational empire to freely practice their various religions. The Old Testament also has references to Cyrus permitting the Jews to return from exile and to rebuild their temple in Jerusalem.  Indeed, the father of Israeli independence, David Ben Gurion, openly cited Cyrus as a hero and President Harry S. Truman proudly compared himself to Cyrus when, in 1948, the United States became the first nation to recognize the new state of Israel. Much as Cyrus ended the Babylonian captivity, enabling the Jews to return to their biblical homeland and rebuild their ancient temple, Truman made possible the re-establishment of an independent Jewish state after almost 2000 years.

Although the Cyrus Cylinder was discovered long after the death of the Founding Fathers of the U.S. Constitution in 1879, it is well known that Jefferson was influenced by Xenophon’s Cyropaedia, which dwells on Cyrus as an ideal ruler, although it is by no means a historical account. It is well known that Jefferson possessed two copies of Cyropaedia – one of which was a Greek and Latin version. All the Founders were familiar with Xenophon’s Anabasis and Isaiah in the Hebrew Scriptures. Jefferson mentions Xenophon as a master of rhetoric in his autobiography. Xenophon viewed Cyrus as a just and tolerant ruler, who ruled over his subjects with persuasion rather than through force. Cyrus did not force his religion, presumably a Zoroastrian, on the various subjects of his vast empire. 3

There are also several biblical references to Cyrus, most notably the words of Deutero-Isaiah, in which he presents Cyrus in a divine manner: “That says to Cyrus, He is my shepherd, and shall perform all my pleasure; even saying to Jerusalem, Thou shalt be built; and to the temple, Thy foundation shall be laid.” 4 Surely, these references to Cyrus would not have escaped Jefferson’s attention, given that he was a keen student of Xenophon’s Cyrus. Jefferson’s interest in and appreciation for Cyrus was an inheritance from the Scottish Enlightenment.  Scottish intellectuals often cited Cyrus in their own efforts to arrive at the proper relationship of church and state. 5

Jefferson strongly believed that religion was a personal matter and should be free from government influence. In his Notes on the State of Virginia, Query XVII,  Jefferson objected to laws that allowed children who could be taken from their parents if they had not been baptized by stating, “But it does me no injury for my neighbor to say that there are twenty gods, or no gods. It neither picks my pocket nor breaks my leg.” 6 It was in Jefferson’s letter to the Danbury Baptist Association in 1802, in response to why as President he had not proclaimed national days of fasting that he famously referred to the “wall of separation between church and state” which has served as the basis for interpreting the Establishment Clause. 7

Like Cyrus, Jefferson saw in the lack of government intervention not the absence of piety but the creation of an opportunity for the robust expression of individual conscience. Cyrus’ true gift to Jefferson and to us is the sublime realization that liberty of thought and action is the one true measure of devotion whose inheritance can only strengthen those bonds which unite a people to their rulers and to their God.  The measure of great power Cyrus knew and the Founders realized was not its ruthless exposition but the principled decision to refrain from its exercise. It was this insight that turned imperial obedience into civic acceptance both for ancient empires and the young republic. The one true test of power is the strength not to use it, either to compel the dictates of individual conscience or to shape the conduct of subjects and citizens in the public arena.

The First Amendment in the U.S. Constitution expresses America’s commitment to religious pluralism through two provisions – one protecting the free exercise of religion (the Establishment Clause) and the other barring the establishment of the religion (the Free Exercise Clause). The interpretation of these two clauses has remained contentious, but their very existence has endowed freedom of worship with a secular legitimacy that it might otherwise have lacked, much as Cyrus did  by treating diversity as a source of strength not weakness. While some believe that the government should strictly enforce separation by not supporting any form of religion in schools or other governmental institutions, including references to God on currency and pledeges, others contend that the Judeo-Christian values of the Founding Fathers provide a historical sanction for overt religiosity such as prayer in public school and references to God in the public sphere. 8

Notwithstanding the lack of unanimity in interpreting the  Religion Clauses, America has been  successful in integrating so many groups of immigrants since its founding  as it is  similar to Cyrus’ model, where the government does not support one dominant religion while at the same time is not against religion. Indeed, the American model relating to freedom of religion was later adopted in the Indian Constitution. Even though India  is a religious country, where the majority belong to the Hindu religion, it is also a home to other major religions. The Indian Constitution in Article 25 grants to citizens of India of all religious persuasions freedom to profess, practice and propagate their faith in a way that does not disrupt public order and does not affect public health and morality adversely. It is thus no coincidence that Zoroastrians and Jews have been able to worship freely, and prosper, in India and America.

 In an age where governmental actors are increasingly foisting their religious beliefs on people, resulting in strife, Cyrus’ model of not interfering in religion, which influenced America’s and India’s system of government, is worthy of further consideration and emulation even in the second decade of the  21st century. Cyrus understood that only the strong can be tolerant, that the wise ruler encourages a government powerful enough to protect the people but wise enough to restrain it.

Whatever doubts Jefferson may have entertained on key Christian doctrines, such as the divinity of Jesus or the truth of his resurrection, he did not feel the need to impose such skepticism upon others, respecting their faith even as he doubted the value of adopting it. For Cyrus and Jefferson, tolerance was at the core of their approach towards governance. As effective rulers, they made it easy for those whose beliefs they did not share to accept, indeed to embrace, their political supremacy, whether it be the evangelical Baptists who loved Jefferson or the ancient Hebrews who honored Cyrus. Circumspect in their public manifestations of piety, Cyrus in his day and Jefferson in his knew the pragmatic dividend to be reaped from toleration. The Declaration of Independence speaks fleetingly of “Nature and Nature’s God” and the Constitution makes no mention of the Deity nor imposes any religious test for office. Cyrus and the Founding Fathers sought not to banish religion but to subordinate it as an organizing principle to what they regarded as a more meaningful immortality, imperial fame for Cyrus and the republican nobility of the American revolutionary experiment for Jefferson. That was the one, true and abiding glory they both sought.

As more countries in a globalized world attract immigrants who follow different religions, Cyrus’ model of religious toleration will go a long way in fostering peace and harmony. The fact that in America new immigrant groups can freely establish their places of worship, even after facing religious persecution elsewhere, is redolent of the inscription on the Cyrus Cylinder that “I returned them unharmed in their cells, in the sanctuaries that make them happy.” The lasting attraction of America was and remains the one central truth that here one could become all that they were capable of being regardless from where they came from. For that to live on, the American creed has always celebrated personal freedom and religious diversity. No one in the ancient world exemplified that more completely than Cyrus. That is the enduring meaning of what Cyrus first established more than 2,000 years ago by allowing people for the very first time to freely practice their own religion, and which inspired Xenophon’s Cyropaedia.

Cyrus was not a Jeffersonian reformer and the link between them is more diffuse than direct. In our desire to make Cyrus relevant, we must not forget that, like all rulers, he was a product of his own time.  Yet, it remains true to note that his philosophy of toleration lived on far beyond what Cyrus ever could have imagined and its continuing influence upon those who launched the American experiment in freedom was  both pervasive and undeniable. Thomas Jefferson was hardly a naïve reformer. Like the other Founding Fathers, he followed Cyrus not because he shrank from power but because he wished to exercise it more effectively, knowing that the ability to weave together a mosaic of culture and thought will in the end produce a more enduring fabric. This remains our most sacred inheritance.

Gary Endelman is the Senior Counsel at FosterQuan, Houston, TX. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he was with one of the largest immigration firms in the country. From 1995 to 2011, he was the in-house immigration counsel for BP America Inc. He is a frequent national speaker and writer on immigration related topics. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of the American Immigration Lawyers Association’s Ethics Committee and former Chair of AILA’s Pro Bono Committee.  He is a frequent speaker and writer on various immigration-related issues, and is also an adjunct associate professor of Law at Brooklyn Law School.  Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. Mr. Mehta was named Best Lawyers’ 2013 New York City Immigration Law “Lawyer of the Year”. The views expressed by Mr. Mehta in this article are his personally and do not not those of any of the organizations he is a part of.

1. See e.g. Cyrus Cylinder: How a Persian monarch inspired Jefferson, BBC News, http://www.bbc.co.uk/news/world-us-canada-21747567 ↩

2. The British Museum Translation of the Text on the Cyrus Cylinder, http://www.britishmuseum.org/explore/highlights/articles/c/cyrus_cylinder_-_translation.aspx  ↩

3. In Mary Boyce, Zoroastrians – Their Religious Beliefs, the author at p.51 suggests that Cyrus was a Zarathushti as there was evidence of fire holders and that one of his daughters was referred by the Greek writers as “Atossa,” which in Persian is “Hutaosa,” who was the queen of King Vishtaspa, Zarathustra’s first royal patron. Clearly, Cyrus’s successors such as Darius and later were more explicit that they were Zarathushtis and invoked Zarathustra’s God, Ahura Mazda.  ↩

4. For a commentary on the biblical references to Cyrus, See Joseph Wiesehöfer, Ancient Persia, I.B. Taurus; Pierre Briant, From Cyrus to Alexander – A History of the Persian Empire, Eisenbrauns; Mary Boyce, supra.  ↩

5. Ancient Persia Influenced Thomas Jefferson, US Democracy, IIP Digital, US Department of State, http://iipdigital.usembassy.gov/st/english/article/2013/03/20130312143982.html#ixzz2RsF6GhFX  ↩

6. Notes on the State of Virginia, Query XVII, http://etext.virginia.edu/toc/modeng/public/JefVirg.html  ↩

7. Jefferson’s Wall of Separation Letter, personal correspondence with Danbury Baptist Association in 1802, http://www.constitution.org/tj/sep_church_state.htm  ↩

8. The Supreme Court decision in McCreary County v. ACLU 545 U.S. 844 (2005), which narrowly held that the display of the Tenb Commandments at a county court violated the Establishment Clause, best exemplifies how difficult it is to inerpret the Religion Clauses in the First Amendment.  ↩

The article originally appeared in the Summer 2013 of the Fezana Journal