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Viewing entries tagged
rebutting the presumption of future harm
The First Circuit has determined that the Department of State Human Rights Report, coupled with the petitioner’s testimony that his political party had disbanded and the absence of harm to his non-politically active relatives in the his home country, was insufficient to rebut the presumption of future persecution.
The full text of Mendez Esteban v. Garland can be found here:
In a case in which the agency determined that the petitioner had suffered past persecution on account of a protected ground, the Fourth Circuit addressed what type of evidence is necessary to rebut the resulting presumption of future persecution. The court rejected the idea that the Department of Homeland Security must produce some type of evidence, and indicated that at times, the agency would be able to rely on the petitioner’s evidence (including her testimony) to find the presumption had been rebutted. However, it is not sufficient for the agency to simply find state that the record is ambiguous as to whether there had been a fundamental change in circumstances or whether the petitioner could safely internally relocate. “To rebut the presumption, the government must prove that its view of the evidence as to either condition is the most convincing one.”
The court determined that a persecutor’s failure to contact the petitioner for the intervening years that she had been in the United States, on its own, does not rebut the presumption. There were other explanations - such as the difficulty in locating the petitioner while she resided in the United States - that could explain the persecutor’s lack of contact. It was not a reasonable conclusion that he had necessarily lost interest in harming her.
Similarly, the fact that the petitioner had briefly been able to relocate (in hiding) to another part of Honduras did not indicate she could safely relocate now, as it is not reasonable to assume she will remain in hiding for her entire life. The agency’s error was compacted by the fact that the persecutor had tracked the petitioner to another part of the country in the past.
The full text of Ortez-Cruz v. Barr can be found here:
http://www.ca4.uscourts.gov/opinions/181439.P.pdf
The First Circuit has reversed the denial of asylum to a Nepalese citizen, finding that the Department of State reports were insufficiently particularized to the applicant’s claim to rebut the presumption of future persecution arising from the past persecution the applicant experienced.
The full text of Dahal v. Barr can be found here:
The Ninth Circuit has held that the Department of Homeland Security does not rebut the presumption of a well-founded fear of persecution raised by a petitioner who experienced past persecution when the only evidence they submit is 5-year-old country conditions reports. “Unlike fine wine, reports on country conditions do not improve with age—a reality that our colleagues on the Second Circuit have repeatedly acknowledged.” Outdated country conditions reports cannot serve to demonstrate that current country conditions are such that a petitioner is not in danger of persecution. “Common sense dictates that the government cannot meet its burden of rebutting the presumption by presenting evidence of the Salvadoran government’s human rights record at a time when the government was run by a different political party— particularly when the government is now run, as it was at the time of the IJ hearing, by the very same FMLN who persecuted the Quiroz Parada family.”
“Because the agency’s determination that the government successfully rebutted the presumption of future persecution is unsupported by substantial evidence, we hold that the presumption has not been rebutted and that Quiroz Parada is statutorily eligible for asylum and entitled to withholding of removal, and remand for the Attorney General to exercise his discretion under 8 U.S.C. § 1158(b) as to whether to grant asylum. Particularly where, as here, the government took thirteen years to process the asylum application and then another five years to hold a hearing before an IJ—during which time the government had every opportunity to submit more up-to-date evidence of changed country conditions, but failed to do so—to provide the government with another opportunity to present evidence of changed country conditions would be exceptionally unfair.”
With respect to the petitioner’s application for protection under the Convention Against Torture, the Court found that the country conditions reports and other evidence in the record established not only that the government acquiesced in the MS gang’s violence, but also that Salvadoran security forces engaged in torture on a regular basis.
The full text of Quiroz Parada v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/29/13-73967.pdf
