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 i
s 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 authorityto 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 agreeingthat 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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