Tuesday, May 10, 2005

Third Circuit overturns BIA because asylum-seeker can have imputed political opinion for beliefs he does not have

In the precedential decision of Singh v. Attorney General, No. 03-2788 (3d Cir. May 5, 2005), the Third Circuit overturned the BIA and granted asylum for two independent reasons: first, the asylum-seeker proved he was persecuted for the imputed political opinion of what his father believed. It is irrelevant that he in fact did not have the same political opinion as his father, because he proved that his persecutors believed that he did have a certain opinion and that was the reason for the persecution. It did not even matter that the asylum-seeker did not really have much knowledge about his father's political opinions. The Third Circuit noted that the asylum-seeker himself was arrested, beaten, threatened, and repeatedly sought out. So it was not imagined or feared persecution, but actual past persecution.

Next, the Third Circuit also overturned the BIA's ruling regarding whether he was eligible for asylum under the "mixed motive" analysis because he was persecuted in significant part for one of the protected grounds. The BIA incorrectly required him to prove the protected ground was "the motivating factor." That is not the correct legal standard. The correct standard is proving that the persecution was motivated "at least in part" by one of the protected characteristics. So, even if one part of the persecutors' motivation was a legitimate security purpose (searching for contraband weapons), he still qualifies for asylum because the mistreatment was also motivated by persecution of his imputed political opinion.

What is particularly troubling about the BIA's erroneous decision is that the immigration judge had gotten it right. The original judge granted asylum. The BIA went in and overturned the grant of asylum. It took the Third Circuit to fix the BIA's error by granting the petition of review.


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