Saturday, September 05, 2009

Camara: BIA Erred Again -- Threats With Abducting A Family Member Proves Past Persecution

Camara v. Holder
September 4, 2009
Judges Sloviter and Hardiman with District Court Judge Pollak. Opinion by Judge Pollak.

For Ms. Camara, Camille J. Mackler of the Law Office of Theresa Napolitano in New York, NY. For the government, Jeffrey S. Buckholtz, Emily Anne Radford, Patrick J. Glen, and Craig Alan Newell, Jr. (argued).

The BIA erred by ruling that Ms. Camara did not suffer past persecution in a way that was not supported by substantial evidence. The case involves someone who had a family member that was part of the Rally of the Republicans party (the RDR) in the Ivory Coast. Stopped at JFK Airport, Ms. Camara was given a court date in the Elizabeth, New Jersey detention center. The IJ denied her asylum request. The BIA agreed with the IJ and denied asylum.

The focus for obtaining asylum is a well-founded fear of future persecution. Although not the focus, showing past persecution raises a presumption that you have a well-founded fear of future persecution, so it is an important issue to prove.

The BIA erred by ruling that Ms. Camara did not experience past persecution in the Ivory Coast. The BIA wrongly stated that if government officials came to her family's home once, falsely arrested her father, and threatened her family, that mistreatment did not amount to past persecution. Those threats were worse than the mere harassment in Matter of A-E-M, 21 I&N Dec. 1157 (BIA 1998) (phrase that man would be "the next one" where no proof which group painted it was not persecution); Li v. Att'y Gen., 400 F.3d 157 (3d Cir. 2005) (threats without any imprisonment, beating, sterilization, or physical harm might not be past persecution). In contrast, here Ms. Camara's father was abducted and she personally saw it happen.

The Third Circuit said the BIA's mistake is similar to the facts of Konan v. Att'y Gen., 432 F.3d 497 (3d Cir. 2005), a case where the BIA made a different type of mistake. In Konan, the asylum-seeker saw rebels shoot his house and cause a fire in his house, killing his brother and father. Although not the focus of that case, the Third Circuit noted that the attack on the house, killing two relatives, compels a conclusion of past persecution. The government in the Camara appeal made an irrelevant argument -- noting the REAL ID Act changed the wording of the proof needed about the motive of the attacker. In footnote 13, the Third Circuit points out the government's argument is irrelevant -- the point is whether the threats were past persecution, not about the motive of the attackers.


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