Friday, November 03, 2006

Ghebrehiwot: IJ Must Specifically Analyze Claim Of Pattern Or Practice Of Persecution

Ghebrehiwot v. Gonzales, No. 05-3847 (3d Cir. Nov. 3, 2006) (precedential)

The Third Circuit remanded a case where the IJ did not consider the asylum-applicant's argument that there was a pattern or practice of persecution in the person's home country. Basically, to win asylum, you must show a well-founded fear of persecution that is based on one of five limited grounds (notably, generally being afraid of crime is not on the list). You must show you subjectively have a well-founded fear and that objectively there is a well-founded fear.

The most common way to prove an objective fear is by proving that you were a victim of persecution in the past. That creates a presumption that there is an objective reason to believe in most cases that you may be persecuted again. There is a second way that is less commonly used -- to prove a pattern or practice in the other country that similar people are being persecuted. Here, the IJ made a mistake by focusing on how the person seeking asylum had not been persecuted in the past, but did not focus on the other way to prove that you objectively fear persecution -- a pattern or practice of persecution in the other country. The Third Circuit did not understand why the IJ did not seem to analyze the numerous documents and government reports of persecution in Eritrea against Pentecostals. The IJ did not specifically address whether there was a pattern or practice of persecution in Eritrea. Recent US government reports indicate that Eritrea has been closing all religious facilities other than those in four sanctioned religions. The government argued that this report did not support Mr. Ghebrehiwot's claim, but the Third Circuit said that made no sense -- just because the report suggests persecution against lots of religious groups including Pentecostals does not weaken its support for Mr. Ghebrehiwot's claim of persecution against Pentecostals.

The Third Circuit also separately noted that denying a claim for asylum does not by definition mean that a claim for relief under the Convention Against Torture must also fail. For example, someone might be likely to face torture that the other country will inflict unrelated to any protected ground. That person would not qualify for asylum (no proof of persecution based on a protected ground) but could win CAT relief (likely tortured by the government).

That involves fear of There are two ways to prove that someone has an objective basis for holding a well-founded fear of persecution (which is necessary to win asylum):


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