U.S. Second Circuit Finds that Women Sold into Forced Marriage May Constitute a Particular Social Group
Tuesday, August 28, 2007 12:25 PM

A woman from China sought asylum, withholding and Convention Against Torture (CAT) protection based on the abuse she suffered in her forced marriage, as well as her fear that the harm would continue if she were forced tot return to China. She credibly testified that her parents sold her to be married when she was 19 years old. Her parents used the money from the sale to pay off debts. While she initially resigned herself to the impending marriage, she tried to break it off after the man who purchased her began abusing her. He threatened her, saying if she refused to marry him that he would have his uncle, a powerful local official, arrest her.  She tried to flee, by moving to another district, but he followed her. He continued to threaten her parents and ransacked their house. Six months later, she left China.  Since her departure, the man who bought her continues to harass her parents.

The immigration judge (IJ) denied asylum, withholding of removal and CAT protection. Although the IJ found her credible, the court found that the harm she experienced was not "on account of" one of the protected grounds (race, religion, nationality, political opinion, or membership in a a particular social group).  The IJ characterized the incidents as nothing more than a dispute between two families. The IJ also found that the record did not establish that the government would not protect her from the man who purchased her, despite the fact that his uncle was a powerful, government official. Lastly, the IJ also found that even if she had shown the proper nexus, she could nonetheless safely relocate to another city in China to avoid future harm, even though she had already relocated once before fleeing China for the United States. The BIA summarily affirmed.

On appeal, the Second Circuit held that Petitioner had satisfied the nexus requirement by showing that she was a member of a particular social group, namely "women who have been sold into marriage (whether or not the marriage has yet taken place) and who live in a part of China where forced marriages are considered valid and enforceable." In reaching this conclusion, the court relied upon the definition of particular social group found in Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985). The court roundly rejected the IJ's reasoning that the harm was nothing more than a dispute between two families.

The court also held that the IJ's finding that Petitioner had failed to establish that the Chinese government would not protect her lacked substantial evidence. Similarly, the Second Circuit should that the IJ's finding that she could safely relocate within China also lacked substantial evidence. Moreover, in making the finding, the IJ did not engage in the proper inquiry into the reasonableness of the relocation under 8 CFR 1208.13(b)(2)(ii).

For these reasons, the court granted the petition for review and vacated the decision by the BIA. The case was remanded  to the lower courts for further proceedings.

Compiled from: Gao v. Gonzales, 440 F.3d 62 (2d Cir. 2006)