Friday, July 22, 2005

Overturning BIA for mischaracterizing asylum claim

Filed 07/22/05, No. 03-4731
Vente v. Atty Gen USA
(Vente v. Gonzalez)

The Third Circuit overturned the BIA's denial of an asylum claim because the BIA mischaracterized the claim.

The asylum seeker received personal threats in Colombia because he was accused of being a collaborator. Strangely, the BIA focused on whether the general level of unrest could support an asylum claim and whether others in his family (who never left Colombia) felt threatened. The BIA incorrectly ruled that the lack of general unrest meant the asylum claim must fail. That mischaracterized the asylum claim -- it was based on direct threats to him individually, not the general level of unrest affecting all people.

Next, the BIA also erred by denying the asylum claim because his family did not feel threatened. That missed the point -- his claim was based on the threat to him inidividually, so it did not matter that others in his family (who were not directly threatened) did not feel very threatened.

The Third Circuit remanded the case to the BIA.
“When deficiencies in the BIA’s decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning.” Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003). That is the situation in which we find ourselves here. Given that Vente’s asylum claim is based on the specific threats he received from paramilitary groups in Colombia, it is unclear why the BIA even addressed the general unrest in Colombia or whether members of Vente’s family suffered harm. We must therefore remand this case to the BIA for a fresh look at Vente’s asylum claim—one that focuses on the true underpinnings of that claim.


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