In Henriquez-Rivas v. Holder, NIJC filed an amicus brief in support of Ms. Henriquez-Rivas, an asylum-seeker from El Salvador. When Ms. Henriquez-Rivas was twelve years old, she witnessed members of Mara Salvatrucha (“MS”) kill her father. She then testified in court against three MS members, and two were convicted in her father’s murder. Ms. Henriquez-Rivas had to flee El Salvador after MS members went to her school and home looking for her. The Board of Immigration Appeals held that U.S. asylum laws give no protection to individuals who testify against gang members in court.
Legally speaking, the issue in the case is whether witnesses, like Ms. Henriquez-Rivas, constitute a “cognizable” group under INA § 208(b)(1), such that she could seek protection in this country. The Board of Immigration Appeals requires that groups have “particularity” and “social visibility” in order to permit a protection claim. Matter of S-E-G-, et al., 24 I&N Dec. 579 (BIA 2008).
NIJC's amicus curiae brief made several points: (1) there is no principled reason why particular social groups may not be large and diverse (so long as members share at least one immutable characteristic fundamental to members’ identity), just as other protected grounds (like religion and political opinion) may include large segments of the population; (2) the Board’s focus on opaque and evolving rules governing the definition of particular social groups distracts focus from more significant factors, and disadvantages asylum seekers, many of whom are pro se; (3) the past experience of being a witness or informant can form the basis of a particular social group; and (4) the BIA’s precedent does not deserve deference from the Court.
NIJC submitted their amicus on February 21, 2012. Oral arguments were held on March 20, 2012. On February 13, 2013, the court remanded the case to the BIA.