Does A Tenth Circuit Ruling Make Relief Accessible?
The Tenth Circuit recently reviewed the requirement of social visibility set out in cases such asMatter of S-E-G-, 24 I&N Dec. 579 (BIA 2008) for applicants for asylum or withholding of removal. Immigration decisions have consistently interpreted social visibility very strictly. Connection to a social group may seem vague to some courts and removal imminent. Many possibly deserving applicants have been removed despite the violent threats they face on return to their homes.
In a recent 2012 decision, Barrientos v. Holder, 666 F. 3d 641 (10th Cir. 2012), the Tenth Circuit may have made it easier for many fearful aliens to avoid removal by applying for asylum or withholding of removal. While the decision in Barrientosactually affirms S-E- G and other subsequent decisions, it also sets more reasonable standards to meet the social visibility test.
Barrientos recognizes two prongs: the applicant is targeted because or on account of his trait or status as a member of a social group, and the social group be potentially identifiable by the community. Id. at 650-2. In order to be protected from being removed from the United States an Applicant must show that he was targeted in home because of a certain trait, but that the trait needs only to be "potentially identifiable" in the community. This may make relief from removal more accessible to applicants. In order to establish eligibility the applicant needs to show only that the "evidence indicates" the applicant is eligible. Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003).
While Barrientos is by no means a departure from immigration case history, it may help to ease the required showing Immigration Judges have demanded from an applicant. At the very least it ought to give attorneys under Tenth Circuit jurisdiction renewed optimism that relief can be obtained for their clients, and removal prevented.