Tuesday, June 14, 2005

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.


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