Ninth Circuit Finds Minor and His Mother Experienced Harm Rising to Level of Persecution

The Ninth Circuit has determined that a minor and his mother experienced past harm rising to the level of persecution. “Javi’s persecution began soon after the men who had murdered his father were released from prison. Members of M-18, a violent street gang, located and identified Javi and began to follow him from school to his home. These men ‘knew everything about’ Javi and called him the ‘faggot son’ of Carlos. They surrounded Javi and threatened to kill him and Candelaria. The threat was not idle; one of the men who threatened Javi’s life was the same person who had been convicted of murdering his father. Candelaria testified credibly that M18 held a ‘grudge’ against Carlos’s family, including Javi, because of the family’s perceived cooperation with the police after Carlos’s murder. And days after M-18’s death threat, armed men broke into Javi and Candelaria’s home ‘looking for someone.’ Our caselaw does not require that a petitioner wait for the threat of violence to materialize before seeking the protections of asylum law.”

“Here, the death threat against Javi was specific, menacing, and credible. The fact that M-18 repeatedly stalked Javi and, days after threatening his life, broke into his home looking for someone while armed, shows that the threat of harm— and possibly death—was imminent.”

“Here, two expert witnesses evaluated Javi and concluded that ‘Javi’s experience of having his life threatened after losing his father has left a profound psychological impact,’ which ‘meets criteria for diagnosis of Post-Traumatic Stress Disorder (PTSD).’ They wrote that, since leaving El Salvador, ‘Javi has experienced regular nightmares and flashbacks involving the men who threatened him’ and otherwise ‘experiences post-trauma symptoms on a regular basis.’ The expert witnesses also documented other “‘intrusive symptoms’ that, taken together, ‘make it hard for [Javi] to focus in school, interrupt his sleep, and make it hard to heal as he is regularly re-experiencing the trauma.; In failing to address uncontradicted evidence that Javi currently experiences PTSD as a result of having his life threatened by the men who murdered his father, the agency ignored the actual harm Javi continues to suffer from his experience in El Salvador.”

The full text of Corpeno-Romero v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/22/23-576.pdf

Ninth Circuit Reverses Denial of Asylum

The Ninth Circuit has reversed an agency’s denial of asylum, finding that the non-citizen had experienced harm rising to the level of persecution, by actors the government of Mexico was unable to control, on account of her family ties.

“The harms that Meza Diaz and her family suffered— murder, physical assault, kidnapping, a home invasion, and specific, years-long death threats—clearly rise to the level of persecution under our precedents.”

“The report contained the attackers’ statement to Meza Diaz that ‘your time has come’ and that she was going to die. The attackers’ statement that Meza Diaz’s ‘time ha[d] come’ links the home invasion and attack to the numerous death threats Meza Diaz received after her brother’s murder and husband’s kidnapping. Several of those death threats were made by callers who told Meza Diaz that they knew she was Ismar’s sister and that she did not want to meet his fate—namely, being murdered. The police report also notes that Ismar’s murderers were recently released from prison. And the report summarizes Meza Diaz’s family history, including her brother’s murder, her husband’s kidnapping, and the death threats and extortion attempts that Meza Diaz suffered after both events.” “In concluding that Meza Diaz had not presented any evidence of a link between the home invasion and her family history, the agency failed to consider the attackers’ statement or the additional evidence presented in the police report in making its nexus determination.”

“But although Meza Diaz provided the police with significant information regarding who might have a motive to harm her, the police explicitly told her that they could not guarantee her safety and recommended that she flee the country. Meza Diaz presented compelling evidence indicating that the police were either unable or unwilling to control her persecutors.” “The explicit admission by the police that they could not ensure Meza Diaz’s safety must be given substantial weight because the question on this step is whether the government both ‘could and would provide protection.”

The full text of Meza Diaz v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/08/23-973.pdf

Fifth Circuit Remands Asylum Denial to Cameroonian Nurse

The Fifth Circuit has remanded an asylum claim for a Cameroonian nurse, finding that the agency’s analysis of past persecution was insufficient, its analysis of nexus was incorrect, and its lack of corroboration finding was contradicted by the record. “Aben was arrested and detained three times; held in unlawful captivity for a total of six days; slapped, kicked, and knocked in the head; beaten with a belt and a stick; suffered several lacerations, blisters, sores, and bruises; threatened with death while held at gunpoint; and told he would be killed if he did not run fast enough to escape. The BIA’s determination must be vacated because it fails to account for the credible death threats that Aben received.”

“The BIA stated that the actions taken against Aben were not politically motivated but instead were taken due to his occupation as a nurse. However, the BIA failed to address the fact that Aben testified that the military imputed a political opinion to him because military members chastised him for treating ‘separatist fighters,’ and told Aben ‘you [Anglos] think you can fight the government. We will kill you one by one.’ He also testified that as he was being taken from his uncle’s home, he was told, ‘[Y]ou think you can fight us.’ Aben did not claim that the military was targeting him because he was a nurse. Rather he argues that he was perceived to be assisting separatists and later accused of fighting against the government. The BIA does not address this evidence.“

“The BIA and IJ faulted Aben for not documenting his injuries with pictures or medical records. But Aben stated that the Cameroonian authorities seized his cellphone and that he was afraid to use one because of what the authorities would do if they found documentation. He also stated that he avoided hospitals because of fear. Accordingly, the two means of documenting his injuries that the IJ faulted Aben for not using appear unavailable to him based on the record.”

The full text of Aben v. Holder can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60937-CV0.pdf

Ninth Circuit Finds that Death Threats and Physical Harm in Tandem Rise to Past Persecution

The Ninth Circuit has determined that an asylum applicant who suffered contemporaneous physical harm and death threats experienced past persecution.

The full text of Kumar v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/02/23-308.pdf

An order depublishing this case can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/02/23-308.pdf

Second Circuit Finds that Death Threats are not Per Se Past Persecution

The Second Circuit has determined that death threats are no per se past persecution, noting that they will rise to the level of persecution only if the applicant can point to aggravating circumstances indicating that the death threat was “so imminent or concrete” or “so menacing as itself to cause actual suffering or harm.”

The full text of KC v. Garland can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/ffede890-ad84-46c5-93e1-549ef45053a5/9/doc/20-3043_opn.pdf

Ninth Circuit Applies Cumulative Harm Standard to Asylum and Withholding of Removal

The Ninth Circuit has reiterated that the agency must asses the cumulative impact of incidents of past harm when determining if an asylum/withholding of removal applicant suffered past persecution.

The full text of Salguero Sosa v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/16/19-70961.pdf