Scott Bratton Wins En Banc Case in the Seventh Circuit Court of Appeals
On August 9, 2012, the Seventh Circuit Court of Appeals rejected the Board's decision and concluded that young, Albanian women who live alone can constitute a social group. Cece v. Holder, F.3d (7th cir. August 9, 2013). This was an extremely rare case that was heard by all of the Seventh Circuit judges. Scott Bratton briefed and argued the case at the Seventh Circuit. This is a huge victory in social group litigation and should open the door to broader social group formulations in the future, especially gender based groups. In order to be granted asylum, an applicant must show that he or she has been or will be harmed on account of race, religion, nationality, political opinion, or membership in a particular social group. In Ms. Cece's case, her claim was primarily based on membership in a particular social group. The group addressed by the agency was essentially young, Albanian women who live alone who are targeted for human trafficking. The immigration judge originally granted Ms. Cece's application but was ultimately overturned. The Board of immigration Appeals held that Ms. Cece's group could not constitute valid social group because it is defined in large part by the harm feared and does not exist independently of the traffickers. The asylum claim was denied because there was a lack of a nexus to a protected ground. The Board also found that Ms. Cece safely relocated in Albania.
Our office took over the case after the Board of Immigration Appeals had dismissed her appeal. We filed a petition for review with the Seventh Circuit. The Seventh Circuit initially denied the petition in a 2-1 decision. The Court agreed with the Board that Ms. Cece did not have a valid social group and that she had safely relocated in Albania.
We obviously were unsatisfied with the decision and filed a petition for rehearing en banc asking the entire court to hear the case. In May 2012, the Court granted the petition for rehearing en banc. Each party filed additional briefs. An amicus brief was also filed by the National Immigrant Justice Center in Chicago. Scott Bratton argued the case on behalf of Ms. Cece on September 27, 2012.
On August 9, 2013, in a 7-4 decision, the Seventh Circuit granted the petition for review. The majority rejected the Board's social group analysis as being inconsistent with prior precedent. This is a big issue throughout the United States because Board decisions have been increasingly narrowing the social group formulation. The group of young, Albanian women who live alone can constitute a valid social group because the group shares "common characteristics that members of the group cannot change or should not be required to change, because such characteristics are fundamental to their individual identities." This is the underlying test for the social group analysis but one in which the Board has clearly deviated from in many recent cases. The Court also found that the Board's decision on relocation was unreasoned and could not stand. Thus, the petition was granted.
The Cece case marks a huge victory in social group litigation and should lead to broader formulations of social groups. For example, the Court left open the possibility that gender alone could constitute a social group. The decision will help other asylum seekers attempting to establish they are part of a social group.
This was a hard fought victory for Ms. Cece. We are hopeful that she will now be able to remain in the United States after the Court's decision.