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Court Rules that BIA Erred in Failing to Analyze Past Persecution Under Childhood Standard

The First Circuit vacated the BIA’s order dismissing the petitioner’s appeal and remanded, finding that because the Ecuadorian asylum applicant was a minor at time of mistreatment, the immigration judge and BIA should have taken a child-specific analysis.

Court Finds BIA Erred in Requiring Asylum Petitioner to Prove Past Persecution and in Recharacterizing Her Social Group

The Fifth Circuit held that the BIA erred both in requiring the asylum petitioner to prove past persecution to establish a claim based on a well-founded fear of future persecution and in recharacterizing the petitioner’s claimed social group.

CA9 Finds Petitioner Suffered Past Persecution as an Infant

The court found that the petitioner suffered past persecution as an infant in Guatemala where his indigenous family suffered severe persecution, and where the petitioner suffered serious deprivations directly attributable to the persecution.

CA10 Finds No Past Persecution in Chinese Asylum Case

The court found that the economic penalties imposed on the petitioner as result of his resistance to Chinese population control policies did not rise to the level of past persecution, and affirmed the denial of asylum and CAT relief.

Petitioner mental anguish and physical paralysis, constituted past persecution

Over dissent, the court found that the cumulative effect of multiple confrontations and threats by the Communist Secret Police in Mongolia, which caused Petitioner mental anguish and physical paralysis, constituted past persecution. (Javhlan v. Holder, 12/3/10

Past Persecution: You can still get Asylum

Question: I was persecuted in the past in my home country. The government came after me because I was a political activist and I spoke out about the corruption of the government. They brought me to prison, ransacked my home and threatened to tortured me and my family. I barely escaped to the United States and am now claiming asylum. However, the government has changed and they are unlikely to persecute me on the same grounds as in the past. In fact, while I will still suffer certain retribution by certain persons, I will not actually be persecuted based upon political opinion if I return to my home country. Do I still have a chance to win asylum in the United States?

Answer: Previously, you would have little chance of winning asylum. However, there has been a new regulation issued which addresses this very issue. The new provision provides for discretionary grants of asylum to victims of past persecution who no longer reasonably fear future persecution on account of a protected ground upon removal to his or her home country. Such an applicant “may be granted asylum, in the exercise of the decision maker’s discretion, if . . . [t]he applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.” In other words, an applicant who (1) is a legitimate victim of past persecution and (2) demonstrates a reasonable possibility of “other serious harm” upon deportation, is eligible for asylum under the new regulation. This regulation will come into effect when the Immigration has presented evidence to show that there are changed country conditions (in your favor) or that you can find some safe harbor somewhere in your home country.

Question: What will qualify for “other serious harm”?

Answer: First, the Justice Department now believes it is appropriate to broaden the standards for the exercise of discretion in such cases. For example, there may be cases where it is appropriate to offer protection to applicants who have suffered persecution in the past and who are at risk of future harm that is not related to a protected ground. Therefore, the rule includes, as a factor relevant to the exercise of discretion, whether the you may face a reasonable possibility of “other serious harm” upon return to your country of origin or last habitual residence. As with any other element of an asylum claim, the burden is on you to establish that such grounds exist and warrant a humanitarian grant of asylum based on past persecution alone.

Therefore, it is now within the discretion of the Immigration Judge and the Board of Immigration Appeals to grant asylum to victims of past persecution whose fear of future persecution has been rebutted if you can show (1) “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution,” OR (2) “a reasonable possibility that you may suffer other serious harm upon removal to that country. At this point it is not clear what is meant by “other serious harm”. However, it is a lessening of your burden in proving asylum when you can show the past persecution.

Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.californiaimmigration.us.

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