Sunday, September 09, 2007

Valdiviezo-Galdamez: Asylum Mistakes By The IJ and BIA for Man Fearing Maras Gang

In Valdiviezo-Galdamez v. Gonzales, No. 06-2080 (3d Cir. Sept. 7, 2007), the Third Circuit overturned the BIA and Judge Tadal for mistakenly rejecting soemone's gang-based asylum claim.

Here, someone in Honduras was threatened by members of the Mara Salvatrucha gang (also known as the Maras or MS-13) for refusing to join their gang. He reported one attack and robbery by the gang members to the police. He hid for three months then returned to a different part of the city but gang members spotted him and continued to threaten him. At one point, they attacked him and said it was now too late to join them and they would now kill him. He reported it to the police but nothing came of his complaint and he fled to the United States.

Asylum only protects people who were persecuted either by the government or by forces that the government is unable or unwilling to control. It should be enough, therefore, to prove that the police was unable or unwilling to control the gang members in the case. Judge Tadal and the BIA, though, made a fatal error by requiring the asylum-seeker to prove the police refused to protect him, rather than allowing him to prove the police was unable or unwilling to protect him. On top of that, the IJ and BIA also insisted that he prove the reason the police would not protect him was based on one of the grounds for persecution -- a requirement that does not have any basis in the law.

But there was more -- the IJ and BIA concluded there was no link between the gang members' threats and the man's refusal to join them. That conclusion had no basis in the evidence in the record.

Because the IJ and BIA made these fatal mistakes, they never addressed an important, controversial question -- whether young Honduran men actively refusing to join gangs that are recruiting them can qualify as a particular social group in asylum law. If so, then threats due to being a member of that group can qualify as persecution under the asylum law. The Third Circuit did not make a ruling on that issue, but hinted that there is some strong reason why it might qualify, including a decision by IJ Susan Castro in the case of D-V- (IJ Castro, Sept. 9, 2004). That's good guidance for other asylum cases.

Another principle is that if you can show that you suffered persecution in the past, then the government can defeat your claim if the government can prove that you could reasonably relocate to another part of the country where there would be no danger. The IJ and BIA mistakenly forced the asylum-seeker to prove that he could not relocate somewhere else. The rule is clear -- if you show past persecution, it is up to the government to prove that you can relocate, not your burden to prove your inability to relocate.

I'll skip over other mistakes the Third Circuit noted and how the Third Circuit questioned how well the IJ and BIA reviewed the evidence, because they did not comment or describe much of the evidence in favor of the asylum-seeker.

It is very disappointing to see some in Congress demanding less federal court review of BIA and immigration judges' decisions. This case shows how critical it is to permit federal courts to review and correct obvious mistakes by immigration courts. It probably makes better sense to expand the ability to appeal immigration court rulings rather than for Congress to try to restrict appeals and federal court review.


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