Monday, May 26, 2014

Not Erring on the Side of Caution: Court Uses Country-Conditions-Report Ambiguity to Shut Down a Popular Basis for Asylum Relief


by Anish Vashistha

In proceedings before any of the various immigration courts nationwide, asylum seekers may establish the requisite “well-founded” fear of return to their respective home countries by showing that they have been persecuted there in the past. Once past persecution has been proven, a presumption exists that the asylum seeker will be persecuted in the future, but such presumption is rebuttable, meaning the U.S. Department of Homeland Security (“DHS”) may persuade the relevant immigration judge that conditions in the asylum seeker’s home country have changed significantly enough that the s/he no longer has a well-founded fear of future persecution.

Oftentimes overcoming the presumption can be difficult for DHS if the asylum seeker reports that the threat(s) s/he fears still exist and the relevant published annual country-conditions reports are contradictory or otherwise unclear as to whether such is the case. This ambiguity frequently causes an immigration judge to err on the side of caution and find that the presumption of fear has not been rebutted by DHS. For example, Indian Sikhs, who comprise a religious minority within that country and who have had a history of being persecuted there on account of an independence movement that was popular in the 1980s and 1990s but not so much currently, continued to receive asylum in the U.S. for decades after the movement’s dying down because of their actual or perceived participation in such movement years earlier.

However, the reliance by immigration judges on ambiguity, at least in annual country-conditions reports relating to India’s Sikhs, to find that the presumption of future persecution has not been rebutted may no longer be acceptable. The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, held last week in Singh v. Holder wherein the Ninth Circuit held that the presence of ambiguity in such reports does not automatically favor the asylum seeker. Instead, the Ninth Circuit clarified that a balancing of the contradictions must be completed in a manner that relates individually to the asylum seeker.

For the specific asylum seeker in the case, the Ninth Circuit found that the relevant immigration judge and thereafter the BIA conducted the necessary balancing in an appropriate way and upheld the denial of the application. The case may mark the end of asylum applications based on the Sikh independence movement in India, requiring a different approach to resolving the immigration matters of those effected.

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