Sunday, February 16, 2014

Court Makes It Difficult to Establish Nexus to Protected Ground Based on Imputed Political Opinion


For one to establish eligibility for asylum in the U.S. from their home country, a link, also referred to as a nexus, must be established between a protected ground, i.e., race, religion, national origin, social group, or political opinion, and the very persecution one fears. However, sometimes, a person is persecuted simply because the persecutor, i.e., the government or people whom the government is unwilling or unable to control, believes the person to be of a certain race, religion, national origin, social group, or political opinion despite that actually not being the case. This perception oftentimes is enough to establish eligibility for asylum because the nexus between a protected ground and the persecution has been established. Indeed, one can imagine scenarios involving military sweeps wherein the government merely perceives all of the people within a certain area to be sympathetic to whatever group the military is attempting to target and consequently targeting even those who are not sympathetic to that group simply because of their proximity to that group.

Nevertheless, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which is the federal appeals court that hears petitions for review from the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western states including California, Nevada, Arizona, and Washington, made it more difficult last week for asylum applicants to prove the necessary nexus specifically based on perceived, or imputed, political opinion. The case, Garcia-Milian v. Holder, involved a Guatemalan woman who applied for asylum in the U.S. based on her being beaten and raped by military personnel who confronted her regarding the whereabouts of a man, with whom she formerly had a common-law-marital relationship but who unbeknownst to her was a guerrilla. Although the woman was deemed credible, she was denied asylum both by an immigration judge and later on appeal by the BIA because allegedly there was "no evidence to suggest that she was harmed based on any real or imputed political opinion."

The Ninth Circuit agreed, finding that there existed neither any direct evidence showing that the government imputed any political opinion to the woman nor any circumstantial evidence that the woman was attacked based on a perceived political opinion. Although one of the judges of the three-judge panel dissented based on the perceived family-based relationship the woman had with the guerrilla for whom the government was searching, such dissent represented only the minority view. Therefore, a prospective asylum applicant should seek the guidance of a skilled immigration lawyer before attempting to apply for asylum based on a perceived nexus.

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