1. You are a law clerk at the New York Immigration Court. Your judge tells you she just heard a harrowing case of a Rohingya woman who endured brutal persecution on account of her ethnicity and religion. She tells you that the Department of Homeland Security’s trial attorney stipulated that what she experienced constituted persecution on account of a particular social group but argued that, due to improved conditions in Myanmar, she has no fear of future persecution in Myanmar. The judge wants to grant asylum to this young woman and asks you to draft a decision granting asylum. a. The government has stipulated that this young woman is a victim of past persecution. What, if any, effect does this have on her evidentiary burden for asylum? b. What, if any, effect does the past persecution have on her evidentiary burden with regard to her ability to relocate within Myanmar? What factors does the judge need to consider in determining whether relocation is reasonable? c. How would you respond to the Government’s argument that, regardless of what she has suffered, this young woman no longer has a well founded fear of future persecution because of the change of government? Even if this is true, is there away she can still establish eligibility for asylum? 2. For our first class, we read essays by David Martin and Andrew Shacknove. Professor Shacknove argues that the way we currently define “refugee” is under-inclusive. Professor Martin argues that it strikes the difficult balance of offering protection to those who most need it while understanding that asylum is a “politically scarce resource.” We’ve revisited these arguments throughout the class. What does Professor Martin mean by “politically scarce resource?” What is the strongest argument in favor of each of these positions? Which do you find more persuasive? Why? 3. You are a new staff attorney at a busy non-profit organization in NYC and your supervisor introduces you to your first client. He asks you to talk to your client, draft her declaration in support of her asylum application, and give her a list of the corroborating evidence she should start working on to support her claim. Your client is a twenty five year old Garifuna woman from Honduras. Garifuna are an afro-Honduran ethnic minority in Honduras. In Honduras, she was a single mother living on her own who became romantically involved with a local gang member known as “El Flaco.” But El Flaco was a violent partner and when she discovered the extent of his gang activity, your client tried to leave him, telling him she deserved to be treated better and did not want her children to have a gang member raising them. El Flaco became furious. He told her that she should be grateful for his attention. El Flaco was Mestizo and said normally he would never date a Garifuna woman and she had no right to reject him. He held a gun up to her head, asking her what her final words to her children were, but when he tried to shoot the gun, it malfunctioned. He told her she would pay the consequences. After this, her beloved cousin was brutally murdered by the gangs. El Flaco called your client, laughing, to take responsibility for the murder and tell her more of her family members would continue to die. She went the next day to report El Flaco to the police. “What do you want us to do?” asked the police officer dismissively, “There are 25 murders a day in this city!” That night, she got a call from El Flaco. Someone had leaked her complaint and he said now she was a dead woman. She isn’t surprised, given the police corruption in Honduras. She stayed with a friend that night and fled the next day. Your supervisor tells you that your client is extremely traumatized from all that she has been through, and wracked with guilt over the murder of her cousin. She is in removal proceedings and has a deadline coming up so you need to get the facts as best as you can on a deadline. a) You’ve read Xin Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) and understand how the REAL ID Act changed the way Immigration Judges make credibility determinations, so you know how important it is that this declaration be precise and complete. But it is also clear that your client is very traumatized and that it is difficult for her to talk about the events that caused her to flee Honduras. What does REAL ID require of your client in order to document her claim and be found credible? How does her trauma impact her ability to recount her story and testify? What are some strategies that you can use in drafting her declaration that can help minimize inconsistencies and bring out important details and facts? b) What evidence will you ask your client to obtain to corroborate her claim? If there is a piece of evidence that she is unable to obtain, can she still uphold her evidentiary burden under REAL ID? c) What “nexus” will you propose in this case? The harm that your client suffered and/or fears upon return are on account of which of the five protected grounds? Please identify all potential nexus formulations you would raise at trial. If you choose particular social group, identify your cognizable particular social group, or groups, and explain how they satisfy the PSG requirements discussed in the reading and class. Which cases support your nexus formulation? d) How does then Attorney General Sessions’ decision in Matter of A-B- affect the way you approach nexus in this case? Just last week, the Second Circuit gave Chevron deference to Matter of A-B-‘s “unwilling or unable to control” analysis in a case called Scarlett v. Barr, 16-940 (2d Cir. 2020). Read it. Can your client still satisfy this requirement? How will you argue that she does? e) Do you intend to argue that this client is alternatively eligible for protection under the Convention against Torture? Why or why not? If you believe your client is CAT eligible, explain why she satisfies the requirements set forth in 8 C.F.R. 1208.16
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