Ninth Circuit Finds Sikh Asylum Seeker Suffered Past Persecution

The Ninth Circuit has determined that a Sikh asylum seeker has established past persecution, despite the agency’s finding that he only suffered minor injuries. “Five factors compel the conclusion that Singh indeed experienced serious harm: (1) he was forced to flee his home after being repeatedly assaulted; (2) one of those incidents involved a death threat; (3) he was between the ages of 16 and 18 when the attacks occurred; (4) his brother also experienced this violence; and (5) we have already recognized that Mann Party members have faced persistent threats in the region of India where Singh was twice attacked.”

“Singh had to flee his home after he was the victim of a verbal confrontation and two physical attacks, one of which involved a death threat. Based on our precedents, he suffered serious harm. The BIA disagreed, noting that Singh suffered from only bruises, scratches, and swollen body parts after these altercations. But we do not require severe injuries to meet the serious-harm prong of the past-persecution analysis.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/14/20-72806.pdf

Fourth Circuit Reaffirms that Death Threats are Persecution

The Fourth Circuit has reaffirmed that death threats are a form of persecution, if even the threat doesn’t come to fruition.

“Today, we similarly refuse to discount a credible death threat, as the IJ and the BIA did here, because it ‘never came to fruition.’ To do so would not only defy our precedent but would also create an untenable standard for asylum seekers. We similarly reject the government’s argument that death threats alone, ‘unaccompanied by severe physical abuse or torture, do not constitute persecution.’ The seriousness of the threat Sorto-Guzman received is corroborated by the repeated harassment, violence, and death threats she repeatedly suffered at the hands of the same Mara 18 members.” “But even if these threats were not made because of Sorto-Guzman’s religion, they nonetheless bear on the seriousness of the initial threat, the one everyone agrees was made because of Sorto-Guzman’s attending a church and wearing a crucifix. Sorto-Guzman took the December 2015 threat so seriously that she stopped attending Catholic services or wearing her crucifix necklace. It makes good, common sense that any subsequent threats from the same persons, regardless of why they were made, would make Sorto-Guzman permanently afraid to express her religious beliefs.”

The full text of Sorto-Guzman v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/201762.P.pdf

Ninth Circuit Finds Past Persecution based on Threats and Harm to Others

The Ninth Circuit has determined that a Nicaraguan protestor experienced past persecution in the form of direct threats and witnessing the shooting of a fellow protestor and friend. “Flores Molina was publicly marked as a terrorist and threatened with torture over social media by government operatives, repeatedly verbally threatened with death by supporters of the Ortega regime, received a death threat painted on his home by masked men likely affiliated with the government, and received a second death threat—this time during a direct confrontation—after he was seriously beaten by six members of the Sandinista Youth. In addition, Flores Molina had a near confrontation with an armed paramilitary group that located him at a hideaway. The threats were credible given the history and context of the Ortega regime’s killing and torture of its political opponents. Indeed, Flores Molina witnessed the killing of his friend and fellow protester when his friend was shot in the head at a demonstration.” “The progression of threats and violence that Flores Molina experienced was set against the well-documented backdrop of the Ortega regime’s violent crackdown on members of the political opposition.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/13/19-73028.pdf

Ninth Circuit Finds that Stabbing Victim Suffered Past Persecution

The Ninth Circuit has determined that an asylum seeker who was stabbed and suffered a lasting scar, and who received death threats, has suffered harm rising to the level of persecution.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/18/20-73166.pdf

Tenth Circuit Finds there is Pattern or Practice of Persecution of Transgender Women in Honduras

The Tenth Circuit has determined that “the acts of violence are so widespread that any reasonable adjudicator would find a pattern or practice of persecution against transgender women in Honduras.”

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

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110663824.pdf

Fourth Circuit Directs BIA to Consider Child's Age in Persecution Analysis

The Fourth Circuit, in an en banc decision, has determined that the agency must consider a child’s age when determining whether harm he suffered rose to the level of persecution. The court also acknowledged that an issue may be exhausted by virtue of the agency addressing it in its decision, even if not raised in detail in the briefing before the agency. Notably, the court also determined that the issue of government protection was raised in the Notice of Appeal to the Board, and did not have to find exhaustion based solely on the Board’s analysis of the issue.

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

https://www.ca4.uscourts.gov/opinions/191591A.P.pdf

Ninth Circuit Reaffirms that Attempted Rape is Persecution

The Ninth Circuit has reaffirmed that attempted rape is harm rising to the level of persecution. “The BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the sexual assault itself in order to show persecution. Kaur’s credible testimony about the attempted gang rape is sufficient to show persecution. Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”

The court also reversed the agency’s finding that the petitioner was not harmed by government actors. “The administrative record reflects that when Kaur’s persecution began, the Congress Party was already part of the government in Punjab: it held 46 out of 117 seats in the state legislature and was a key opposition party with the ability to shape laws and exert influence over the civil service. The Congress Party became the ruling party in the state of Punjab in March 2017, mere months after Congress Party agents attempted to gang rape Kaur, telling her that they were doing this to her because she was ‘working for the Mann Party’ and ‘not supporting [the Congress Party] in any way.’ Thus, some of the more severe forms of Kaur’s persecution occurred during the Congress Party’s electoral rise. Furthermore, the last known persecutory event against Kaur and her family occurred in 2018, a full year after the Congress Party’s electoral victory made it the official head of the state government. Finally, from the time Kaur appeared before the IJ through the present, the Congress Party has remained the leader of the Punjab government.” “[W]hen a petitioner suffers persecution at the hands of a major political party both during and after its rise to power from a minority voting bloc in the legislature to the head of government, the source of the persecution is the government itself.”

The full text of Kaur v. Wilkinson can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/29/18-73001.pdf

Fourth Circuit Reaffirms that Death Threats Constitute Persecution

The Fourth Circuit has reaffirmed that written death threats qualify as persecution. “Indeed, written home-delivered death threats and text messages can easily be more menacing than verbal threats, in that they show that the writer and sender knows where his target lives and the relevant personal cellphone number.”

The full text of Bedoya v. Barr can be found here:

https://www.ca4.uscourts.gov/opinions/191930.P.pdf

Fifth Circuit Defines Persecution as Requiring Sustained and Repeated Harm

The Fifth Circuit has determined that persecution requires sustained, repeated harm. As such, it deferred to the agency’s determination that a petitioner who was threatened on three occasions, and physically harmed on one occasion, did not suffer harm rising to the level of persecution.

The full text of Gjetani v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60827-CV0.pdf

Third Circuit Clarifies that Serious Physical Injury is not Required to Show Past Persecution

The Third Circuit has determined that its precedent does not require a showing of serious physical injury (or any physical harm at all) in order to demonstrate past persecution. Similarly, the court clarified that threats of harm need not be imminent in order to rise to the level of persecution.

The full text of Blanco v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/193658p.pdf

Third Circuit Reverses Denial of Asylum to Ghanian LGBT Asylum Seeker

The Third Circuit has reversed the agency’s denial of asylum to a gay Ghanian man. The Third Circuit noted that the fact that the man was only attacked once and did not seek medical treatment was not dispositive. Moreover, the Court found no need for the petitioner to have sought police protection, given that Ghana criminalizes same-sex relations.

The full text of Doe v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/181342pa.pdf

Third Circuit Finds Threats Rise to the Level of Persecution

The Third Circuit has remanded a case in which the agency found the petitioner did not suffer past persecution simply because the harm she experienced was limited to verbal threats. The court directed the agency to consider the cumulative effect of the threats.

“Thus, a threat is ‘concrete and menacing,’ constituting past persecution, where the aggregate effect of a petitioner’s experiences, including or culminating in the threat in question, placed a petitioner’s life in peril or created an atmosphere of fear so oppressive that it severely curtailed the petitioner’s liberty.“ The court noted that even in the absence of physical harm to the petitioner, the agency should consider the threats in conjunction with violence against her property and close associates.

The full text of Herrera-Reyes v. AG can be found here:

https://www2.ca3.uscourts.gov/opinarch/192255p.pdf

Ninth Circuit Emphasizes that Death Threats Constitute Persecution in only a Small Number of Cases

The Ninth Circuit has reiterated that death threats alone will rise to the level of persecution in only a few cases in which the threats are sufficiently specific and menacing so as to cause significant actual suffering or harm. In this case, the petitioner received a threat over the phone, and another in person. The men who approached him were believed to be hitmen or “sicarios,” but the petitioner did not personally know if they had ever carried out threats against other officers for failing to cooperate as requested. The men took no actions of violence against the petitioner, his family or property beyond the threats. “On these facts, although it may have been possible for the IJ to conclude that the threats were sufficiently serious and credible to rise to the level of persecution, we cannot say the evidence compels the conclusion that [the petitioner] suffered past persecution.”

The full text of Duran-Rodriguez v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/20/16-72957.pdf

Fourth Circuit Reaffirms that Death Threats Constitute Persecution

The Fourth Circuit has reaffirmed that an applicant who experienced multiple, explicit death threats suffered harm rising to the level of persecution.

The full text of Tairou v. Whitaker can be found here:

http://www.ca4.uscourts.gov/Opinions/171404.P.pdf

Ninth Circuit finds that Prohibition on Religious Practice is Persecution

The Ninth Circuit has determined that a petitioner who was prohibited from attending his house church suffered past persecution.  "By forbidding Petitioner from attending his home church, the Chinese police prevented him from practicing his faith and did so through coercive means. The harm Petitioner suffered was therefore ongoing and, under our asylum precedent, compelled a finding of past persecution."  Specifically, the Court noted that "the police here actively ensured that Petitioner could not practice his faith, forcing him and fellow congregants to report to the police station weekly and threatening him with arrest for noncompliance."

The full text of Guo v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/15-70617.pdf

Ninth Circuit Addresses Extortion as a Form of Persecution

The Ninth Circuit has determined that extortion, when accompanied by threats of violence, qualifies as persecution.  If a protected ground (i.e., family ties) is at least a reason for this persecution, an applicant qualifies for withholding of removal.

The full text of Ayala v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/01/13-72250.pdf