Sunday, January 29, 2006

Ilchuk: Persecution If Higher Punishment For Conscientious Objectors Of A Particular Religion

Filed 01/17/06, No. 04-3094
Ilchuk v. Gonzales
Ilchuk v. Atty Gen USA

Here, the immigrant was convicted of Pennsylvania's law against the Theft of Services (stealing ambulance calls). The Third Circuit noted it is an aggravated felony if it is a theft offense and the house arrest can be considered over one year of imprisonment. Because a theft offense is "a taking of property or an exercise of control over property (anything of value) without consent," stealing ambulance calls was a theft offense. House arrest can be imprisonment because the Third Circuit believes the statute should be read broadly and covers more than simply spending time in jail. So, it was an aggravated felony and the immigrant is ineligible for asylum, though he could seek withholding of reoval or protection under the Convention Against Torture.

The BIA made fatal mistakes when deciding the claim that he would be tortured if returned. The BIA and IJ assumed that some type of alternative to military service is available to Pentecostals. The problem is that there is no proof of that in the record. The BIA also assumed that even if the immigrant would be imprisoned due to his religious objection to military service, that would not be persecution. The Third Circuit said that was a major mistake. The Third Circuit explained that the immigrant could obtain protection if he could prove that people of his religion are particularly punished for refusing to bear arms based on their religious beliefs (it is not just a blanket rule applied to all who conscientiously object).


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