Wednesday, December 4, 2013

Court Provides Asylum Seekers a Reason to Give Thanks this Holiday Season

As many American families, including several families that only recently immigrated to the United States, were preparing to celebrate Thanksgiving Day last week, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal court with jurisdiction over petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, reaffirmed that the United States remains a shelter for foreign nationals persecuted in their home countries. The case Doe v. Holder held that a foreign national applying for asylum is not required to show either that his/her home government sponsored or condoned the persecution of the group of which the foreign national is a part or that the government was unwilling for that reason to control the persecution.

The case concerned a gay Russian man who ethnically is of a minority in Russia given his birth in an Eastern Russian area north of Mongolia. Although the Immigration Judge found that the Russian man did suffer harm while living in Russia, the Immigration Judge nevertheless denied the man's asylum application based on the perceived lack of required evidence that such harm resulted from either an unwillingness or inability of law-enforcement authorities within Russia to protect the man from such harm. The BIA agreed with the Immigration Judge in holding that the Russian man had "not shown that there is widespread persecution of homosexuals in Russia which is sponsored or condoned by the Russian government."

Fortunately, the Ninth Circuit reversed the BIA's holding by finding that the Russian man did meet his burden of proving the unwillingness-or-inability requirement through his submitted testimony and documents, that the United States Department of Homeland Security ("DHS") submitted nothing to discredit such evidence, and that the BIA despite accepting the Immigration Judge's conclusion that the Russian man is credible nevertheless held the man to an impermissibly high and consequently unlawful unwillingness-or-inability standard. Specifically, the Ninth Circuit found that the man, in order to meet the unwillingness-or-inability requirement, did not need to show that law-enforcement authorities actually sponsored or condoned the persecution of homosexuals or that such authorities were unwilling for that reason to control the persecution. The case represents not only a continuation of the trend I have discussed previously regarding protections of homosexuals and others within the LGBT community but also a broader understanding of how United States Asylum Law errs on the side of caution in protecting sufferers of persecution.

Nonetheless, as the Ninth Circuit giveth, it taketh away. Less than a week later in Taggar v. Holder, the Ninth Circuit held that Immigration Courts are permitted to establish deadlines by which even mandatory forms of relief, e.g. applications for withholding of removal and/or for deferral of removal, must be filed within one's removal proceedings. In that case, an Indian woman was given multiple opportunities to file applications for relief but simply failed to do so but then argued that the Immigration Judge was without authority to deny her the opportunity to file an application for protection under the Convention Against Torture. The BIA affirmed the Immigration Judge's removal order and refusal to consider the Indian woman's applications for relief, and the Ninth Circuit upheld the BIA's affirmation by agreeing that the Indian woman simply abandoned any forms of relief for which she may have been eligible because she did not comply with the Immigration Judge's filing deadline(s).

Therefore, as the Ninth Circuit has shown in its last couple of decisions, even those without a great deal of indisputable evidence may receive asylum, but they still need to follow the rules.

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