Asylum can be based on membership to a social group

Kanchaveli v. Atty Gen USA, Filed 06/10/05, No. 04-1134 (non-precedential): the Third Circuit overturned the BIA and IJ because they failed to consider whether the immigrant qualified for asylum because he was persecuted on account of being a member of a social group. There are many requirements to getting asylum -- one requirement is that the reason that an immigrant has a well-founded fear of returning to his country is due to persecution that is connected to one of the grounds protected in the asylum law. All the immigrant needs to show is "that the persecutor's actions were motivated in part by an actual or imputed ground" -- he does not need to try to show that the sole motive was the protected ground.

Being the member of a social group is a protected ground. A social group means "a group of persons all of whom share a common, immutable characteristic" such as sex, color, or kinship ties. It must be a characteristic that the members cannot or should not have to chance because it is fundamental to their identity.

The Ninth Circuit has held that an immediate family is "perhaps a prototypical example of a 'particular social group.'" Other circuits have also recognized that family can be a social group.

Because others targeted the immigrant because he was the son of a political dissident, if his allegations are proven, he qualifies for asylum as the member of a social group that is persecuted. This theory suggests that if persecutors attack someone who is the brother of someone they are hunting for, that can qualify for asylum.

Motion to reopen; frivolousness overturned

Marke v. Atty Gen USA, No. 04-3031 (3d Cir. June 13, 2005) (non-precedential): a motion to reopen must be filed within 90 days of the BIA's decision or else the immigrant must prove why he should be excused for filing it after that period, such as for his former lawyer's ineffective assistance of counsel. But failing to address the issue in a belated motion to reopen means the motion to reopen should be denied as filed too late. Also, if an immigrant does not prove that he has been persecuted in the past, if he argues that changes in the country he has left makes it impossible for him now to return, the burden is on him to prove how the country has changed since he left.

Kelmendi v. Atty Gen USA, filed 06/13/05, No. 04-2545 (non-precedential): The Third Circuit overturned the IJ and BIA's finding of frivolousness. An asylum claim is deemed frivolous (which imposes serious penalties) only if there is an intentional false statement that has a bearing on the case. The IJ and BIA did not specifically identify or explain what statement was intentionally false, so the Third Circuit threw out their finding of frivolous. The process on authenticating foreign documents is not a mandatory requirement but is something that a judge can consider when deciding whether to allow certain documents into evidence. As the Third Circuit has said before, courts should be "loathe to quickly attach a label of frivolousness ... to an applicant's ... exercise of his legal rights." On another topic, if the judge offered the immigrant alternatives and an opportunity to follow the process, then the judge has the option of excluding the evidence if the immigrant did not follow the process and did not offer a good explanation for why following the authenticating process could not be done. Acceptable reasons for the IJ to believe the immigrant was not credible included: claiming he was seriously beaten but able to cure himself with home remedies, changing his testimony about how he got his passport, it seems strange that days after receiving a court summons he went ahead and had a trouble-free business trip to Greece.

Police beatings and mistreatment are persecution

In Voci v. Gonzales, No. 04-1807 (3d Cir. June 6, 2005) (precedential): the Third Circuit overturned the BIA and ruled that an asylum-seeker did satisfy the requirement to prove that he suffered persecution in Albania. Because there are additional requirements to getting asylum, the Third Circuit remanded the case for further hearings on the other requirements.

The Immigration Judge and BIA incorrectly ruled that the asylum-seeker did not show that he was persecuted. The immigrant suffered multiple beatings (seven of them were severe), which included one extended three-month hospital stay and suffering a broken knee. He was also threatened multiple times and the police tried to intimidate his family in order to force him to give up his political activities. The Third Circuit ruled that the police conduct was enough to qualify as persecution because it was a campaign to drive away or subjugate the immigrant because of his political beliefs. It was not merely discrimination or harassment -- it met the higher standard for persecution. The Third Circuit distinguished cases where isolated incidents that did not cause any serious injury were ruled not to be persecution. The Third Circuit discussed how the Seventh Circuit approaches the issue of whether beatings constitute persecution: one severe beating or multiple beatings (even if they aren't severe) can be enough to be considered persecution.

The Third Circuit could not on the basis of the record rule on whether it was correct to require that the immigrant provide corroborating evidence (such as a hospital record or police report). Before a court can deny an asylum claim for lacking corroborating evidence, it must (a) identify the facts that it thinks is reasonable for the person to corroborate, (b) check whether the record contains corroboration, and (c) analyze whether there is a good excuse for not being able to provide the corroboration. The BIA did not provide analysis for all these steps so the Third Circuit remanded the case for clarification.

The Third Circuit also criticized how the BIA was vague on the issue of whether Albania's conditions had changed to such an extent that the immigrant no longer should be deemed as having any fear of returning. The BIA correctly noted that the rule is that someone cannot get asylum if the US government can prove that the country he is fleeing from has changed to such a degree that he no longer should fear returning there. But, the BIA's analysis was so cursory and vague that the Third Circuit could not study what the BIA did. So, the Third Circuit also asked the BIA to clarify what it may have been thinking on the changed country conditions issue.

More non-precedential asylum denials by the Third Circuit

In Manan v. Gonzales (Manan v. Attorney General), No. 04-2430 (3d Cir. May 13, 2005) (not precedential): affirmed denial of Asylum for someone of Pashtun ethnicity in Afghanistan. The immigrant convinced the immigration judge that he has faced persecution in Kandahar (where he is from) at the hands of the Taliban. The BIA reversed and denied asylum, though, because it concluded that there is no evidence that Pashtuns who are the majority in Kandahar experienced persecution in Kandahar.

In Yang v. Gonzales, No. 04-1682 (3d Cir. May 16, 2005) (not precedential): this emphasizes the need to find a professional to help fill out an asylum application. In that case, the immigration judge found the immigrant to be not credible based on, among other things, how there was a discrepancy between the testimony and what was written in the asylum application. For example, he testified he only saw the doctor who gave an IUD to his wife just once, when he had written that he had seen the doctor twice. He testified he was out farming when officials forcibly took his wife to have an abortion, but his statement said he was at home at the time. These may sound like insignifcant discrepancies, but they can be enough to lose an asylum case and make it impossible to win on appeal.

Go v. Dept Homeland, 05/16/05, No. 04-2961 (3d Cir. )(not precedential): affirming a denial of CAT (convention against torture) protection. Even if the immigrant was the victim of street crime on the basis of racial discrimination, that is not enough to qualify for CAT relief, which the courts will only grant to more extreme acts. The immigrants were from Indonesia and were discriminated against because of their Chinese heritage.

Fei v. Atty Gen USA, 05/16/05, No. 04-3407 (3d Cir.) (not precedential): the immigrant from China lost his bid for asylum because the law does not grant protection to unmarried boyfriends of those who suffer forced abortions. Apparently, the courts will grant asylum protection to husbands but not boyfriends of those who suffer forced abortions. Next, although he showed he was detained by China the last time they caught him, he could not prove it was based on political opinion as opposed to a neutral desire to punish those who leave China without permission.