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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