Trafficking-Based Asylum Claim Denied by Sixth Circuit
Thursday, September 8, 2005 9:15 AM

Twenty-three year old Vitore Rreshpja was placed in proceedings for removal from the United States by Immigration in 2002 for entering the country with a fraudulently obtained nonimmigrant visa. Rreshpja indicated a fear of being forced to work as a prostitute if returned to her native country of Albania and requested "asylum or, in the alternative, withholding of removal and protection under the Convention Against Torture (CAT)." In a decision handed down in 15 August 2005, the Sixth Circuit Court of Appeals rejected the asylum claim.

Rreshpja was abducted in Albania in June 2001. She was able to escape but heard the captor claim that "she would end up on her back in Italy, like many other girls." Fearing forced prostitution, her family felt it best for her to come to the United States to stay with her brother in Michigan. Within months of her arrival, the INS initiated removal proceedings against her.

An Immigration Judge (IJ) reviewed and rejected her claims for asylum, CAT and withholding of removal. The Board of Immigration Appeals (BIA) then reviewed the decision of the IJ and affirmed, without issuing an opinion. Rreshpja appealed to the Sixth Circuit Court of Appeals, which reviewed the decision of the IJ.

To grant asylum, a court must find that the applicant is a refugee, unable to return home "because of persecuation or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The applicant's fear must "be both subjectively genuine and objectively reasonable." In this particular case, Rreshpja had to prove that she fit into a defined social group. United States courts have indicated that to constitute a social group, there must be "a group of persons all of whom share a common, immutable characteristic" and "it must be one that the members of the group either cannot change or should not be required to change because it is fundamental to their individual identities or consciences." In addition, the group must have a common tie other than a common risk of persecution. This category tends to be limited as courts have been reluctant to classify broad and generalized classifications as a social group for purposes of asylum. Gender alone, does not constitute a social group.

The court interpreted Rreshpja's application to indicate that the social group to which she belongs is "young attractive Albanian women who are forced into prostitution." This was deemed an inadequate classification for two reasons. First, it is too broad, without adequate proof that forced prostitution is so pervasive as to affect all or even most Albanian women, as was shown with female genital mutilation in Somalia. Second, the group cannot be "circularly defined by the fact that it suffers persecution," in this case as those who are forced into prostitution. Eliminating that portion of the definition and leaving only "young attractive Albanian women" implies that any young Albanian woman deemed attractive is eligible for asylum. The court agreed with the IJ that Rreshpja does not have a well-founded fear on account of membership in a particular social group.

Rreshpja then requested a "humanitarian grant" of asylum, which requires "compelling reasons for being unwilling or unable to return to the country" based on the severity of past persecution or fear of serious future persecution. The court found that she had not suffered past persecution and that although she had a subjective fear of persecution, she did not prove that there was an "objectively reasonable possibility" of future persecution and her request for a humanitarian grant of asylum was denied.

The burden of proof for withholding of removal is "more stringent" than that for asylum. For this reason, the court determined that Rreshpja was not eligible for withholding of removal. To prove her CAT claim, Rreshpja had to show that she would be tortured if removed and that government officials, with prior knowledge of the torture, had or would in the future, fail to intervene to prevent it. The Sixth Circuit recognized that trafficking is a "serious problem in Albania" but found that there was insufficient evidence to prove that the government acquiesces in forced prostitution. Moreover, the court noted the government's attempts to suppress human trafficking and "to penalize local police officers who are directly or indirectly involved in these activities."

In addition to the three abovementioned claims, Rreshpja also claimed that her due process rights were violated with the decision by the BIA to affirm the IJ decision without opinion. This claim was also rejected by the Sixth Circuit.

Cited in: 2005 WL 1941284 (6th Cir.)